Wed, Jan 05, 2011 page8

• ERA TV: possible course of action

  • By Weber Lai 賴祥蔚
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  Last month the National Communications Commission (NCC) revoked ERA TV’s variety channel’s (年代綜合台) broadcast license on the grounds that the station had acted contrary to “supplementary clauses” related to license renewal. The commission instructed cable providers to stop relaying the channel in the early hours of Thursday, and they did so.

  The commission’s decision met with strong protests from ERA TV; many people have also voiced opinions for and against it. Those who support the move concurred with the commission’s determination to carry out reforms, saying it was high time to put in place a mechanism for taking media channels off the air.

  Those who oppose the decision denounced the commission for encroaching on the media’s freedom of expression and raised fears that it would create a negative impression overseas. Some went as far as to accuse senior party and government officials of getting the commission to revoke the license, and called on President Ma Ying-jeou (馬英九) and Premier Wu Den-yih (吳敦義) to account for the decision and rein in the commission.

  This wave of criticism has not yet subsided, and it has gone beyond the opposition pan-green camp to include voices from government-aligned pan-blue supporters. It can be expected that there will be further public debate on the subject. Constructive discussion of the issue is a good thing, but if the ERA Group gets the idea from some of the opinions being bandied about that the commission made the wrong decision and that it can get it overturned right away, I’m afraid it will have misjudged the situation.

  If the ERA Group intends to take the issue to the international level by accusing the government of clamping down on freedom of expression in the hope of getting overseas interests to intervene, this strategy is unlikely to succeed. That is because revoking broadcasters’ licenses is something that has been done on occasion by both the US Federal Communications Commission and its UK equivalent, the Office of Communications, in cases involving commercial and college campus TV stations. When such independent agencies take measures to regulate the media, as long as they act according to the law, they cannot be said to be suppressing freedom of expression.

  The idea of ERA TV expecting the president or premier to rein in the commission is even more far-fetched. The NCC is an independent agency, and it has already imposed the ultimate available administrative penalty. So, although the president and the premier can voice their opinions, from an administrative point of view it would not be appropriate for them to intervene in an individual case; in fact, they are not entitled to do so. If they were to intervene, then they would be guilty of going beyond the bounds of their authority, and they could be accused of undermining the commission’s authority and the whole system of government. The president and premier are wise enough politically not to do such a thing, so there certainly won’t be any intervention from them.

  Having ruled out the possibility of overseas or domestic intervention, should ERA TV be expected to just quietly accept the penalty doled out by the regulatory authority? Of course not. Any citizen who objects to a penalty imposed by a government agency is entitled to assert his or her rights through administrative appeals, by lodging a complaint, or a series of complaints. If necessary, one can even petition the Constitutional Court for a constitutional interpretation.

  It can hardly be denied that ERA TV failed to respond to the commission’s requirements, even after being warned several times. However, the main point of argument centers on the issue that the regulations ERA TV variety channel broke were supplementary clauses. The Satellite Broadcasting Act (衛星廣播電視法) has no supplementary clauses; the supplementary clauses cited by the commission are from the Administrative Procedure Act (行政程序法). That leaves room for debate as to whether it was justifiable to invoke that law, and whether the supplementary clauses are applicable to this case. Similar controversies have arisen in the past in relation to the replacement of company presidents of China Television (中視) and CTiTV (中天), and in both those cases an administrative court annulled the penalty imposed by the commission.

  There was another, earlier case in which the Government Information Office (GIO) declined to renew the broadcast license of the ETTV News S channel (東森新聞S台). That decision, too, was later rescinded by the Cabinet’s Petitions and Appeals Committee, and ETTV later sued for state compensation. In its written verdict, the Taipei District Court stated that regulatory bodies must have a clear basis for demands they make of businesses, such as that they have to carry a certain proportion of news programs and so on. In the most recent case, the commission required new shows to comprise at least 40 percent of ERA TV’s broadcasting content, as opposed to reruns, in accordance with the supplementary clauses. The question of whether this requirement had a sound basis in law could be another key factor in deciding whether the commission’s decision stands or falls.

  If ERA TV is determined not to accept the penalty imposed by the commission, then apart from closing down its variety channel, the only other thing it can do is to concentrate on preparing an administrative appeal to assert its rights. That is the normal way of going about it. Other, less orthodox avenues will probably all turn out to be dead ends.

  There is one more thing that should not be forgotten. With Lunar New Year approaching, the ERA Group should give due consideration to ensuring the livelihoods of people employed by its variety channel. At the same time, the company should make sure that this issue does not have a knock-on effect on the interests of staff working for the ERA TV news channel and other subsidiaries, who are entirely innocent in this affair.

  Weber Lai is head of the Department of Radio and Television and the Graduate School of Applied Media Arts at the National Taiwan University of the Arts.

  TRANSLATED BY JULIAN CLEGG
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