Dear Editor,
In 2005 when the licence of CN Sharma’s television CNS TV6 was suspended at the time of the flood disaster by the Prime Minister, who was then the Minister responsible for telecommunications, for what appeared to be a deliberate attempt to make the President appear contemptuous of the conditions of the flood victims, I wrote at some length endeavouring to provide information and explain what we should expect of a licensed broadcaster.
It seems appropriate, given the suspension of CNS TV6 licence, to, once more, repeat much of what I said then.
In every case the constitutional protection offered to every citizen of freedom of expression has been invoked on behalf of Mr Sharma. However, what we are yet to understand, far less accept, in Guyana is that the broadcaster is held to a much higher standard of public responsibility in exercising freedom of expression granted by his licence than is a newspaper, printed publications or the ordinary citizen.
A broadcaster is granted a licence, in a democracy, on the condition that he uses it to serve, to use the language of the USA’s Federal Communication Commission (FCC), “the public interest, convenience and necessity”.
The broadcaster, in essence, is granted the privilege of using the broadcast spectrum, to serve as a “public trustee”, while benefiting from its commercial use because he is being allowed the use of a limited public resource, the broadcast spectrum.
The conditions under which the broadcaster must function as a “public trustee”, are spelt out in the licence and are governed by the regulations under which the licence is issued.
In effect, the broadcaster who is granted a licence to use the electromagnetic spectrum for commercial purposes, is granted exclusive free speech rights denied to others and, to justify this privilege, is constrained to serve as a “public trustee” of the airwaves.
Unlike the rest of the media, the broadcaster is bound by statutory and regulatory obligations to serve the public interest in a defined way which would abridge the constitutional right of free speech which other media and published speech enjoy.
There is no constitutional right to hold a broadcast licence and monopolise a broadcast frequency to the exclusion of others as some in Guyana seem to believe.
Where there are adequate broadcasting regulations, a potential licencee must first justify at public hearings by the regulating authority, his or her qualification to be granted the right to a broadcast licence.
In Guyana licenced broadcasters were, unfortunately, given licences without hearings, without having to establish their qualifications for a licence, without any public justification for being granted the privilege. Our broadcasters were granted licences simply because they either first squatted illegally on the frequency, or the government was persuaded to grant them the licence.
The US Supreme Court has, as has every other Court in the major democracies of the world, consistently upheld the requirement that the broadcaster must serve as a “public trustee” of the licence he holds and must “conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise by necessity, be barred from the airwaves”.
The Federal Communications Commission of the USA in July 1960, issued a “Report and Statement of Policy” which summarise the Commission’s powers over a licencee’s programming and the responsibilities of the broadcaster in this regard. These operational guidelines should long ago have been applicable to the granting of television broadcast licences in Guyana, had not both the governing and opposition parties, ever since we became independent, refused to agree to a professionally drafted broadcasting act and regulations to be implemented by an independent Broadcasting Authority:
* The principle ingredient of the licencee’s obligation to operate his station in the public interest is “to make a positive, diligent and continuing effort to determine the tastes, needs and desires of the public in his community and to provide programming to meet those needs and interests”.
* “The licencee, is, in effect, a “trustee” of the public interest in the sense that his licence to operate his station imposes upon him a non-delegable duty to serve the public interest in the community he has chosen to represent as a broadcaster”.
* “Broadcasting licencees must assume responsibility for all material which is broadcast through their facilities. This includes all programmes and advertising material which they present to the public. With respect to advertising material, the licencee has the additional responsibility to take all reasonable measures to eliminate any false, misleading or deceptive matter and to avoid abuses with respect to the total amount of time devoted to advertising continuity as well as the frequency with which regular programmes are interrupted for advertising messages”.
* “The broadcasters should consider the tastes, needs and desires of the public he is licensed to serve in developing his programming and should exercise conscientious efforts to not only ascertaining them but also to carry them out as well as he reasonably can”.
* “Broadcast stations should not become the private preserve of certain individuals or groups to serve their special interests nor should they serve the exclusive interests of certain social, economic, political or religious philosophies or of particular business enterprises”.
* “Broadcasters must have a wide range of discretion and freedom of choice in deciding on their individual programmes and are to be judged by the overall operation, presentation and balance of programme measured in terms of satisfying community needs”.
CN Sharma’s use of his broadcast licence and the unique privilege it grants and his right to continue to broadcast are, therefore, conditioned by the regulations under which he is granted the licence and which hold him to observe the standard accorded to a public trustee of the frequency he is allowed to use.
If Mr Sharma or any other broadcast licencee broadcasts material which violate the standards set as a condition of the licence, the Constitutional right of free speech does not of necessity, guarantee him the right to continue to hold a broadcast licence.
The Amended Regulations made under the Post & Telegraph Act (Cap 47:01) Section 63(5) governing the granting of a licence issued for the operation of a television broadcasting station contains the following conditions amongst others:
(a) the licencee shall ensure that nothing is included in programmes which offends against good taste or decency or is likely to encourage or incite or to lead to public disorder or to be offensive to public feeling;
(b) the licencee acting reasonably and in good faith. Shall ensure that any news given (in whatever form) in the programmes of the licencee is presented with due accuracy and impartiality; and
(c) the licencee shall ensure that due impartiality is preserved by the person providing the service in regard to matters of political or industrial controversy or relating to public policy.
The Amended Regulations establishing the Advisory Committee on Broadcasting defines the appointment and composition of the Committee and its functions. The functions include advising the Minister (at first it was the Prime Minister and is now the President) “on compliance with the terms and conditions of licences or otherwise” and recommending “appropriate action” to be taken and “including revocation of licence”.
It is the responsibility, therefore, of the ACB to advise the Minister on the action which should be taken if or when any licencee, in the opinion of the ACB, fails to comply with the conditions of the licence set out in the Amended Regulations of June 27, 2001.
The legislation does not empower the ACB to do anything or take any action which is not within the functions of advising the Minister, unless the ACB is specifically directed by the Minister under Clause 23 B 4(c).
The Wireless Telegraphy Regulations of the Post & Telegraph Act at Section (63) 5, Clause 26(1&2), however, provides for the Minister to act without the intervention or advice of the ACB to cancel or suspend the broadcaster’s licence for a period up to 12 months or more, if he considers that the broadcaster has failed to comply with any of the Regulations under the Act.
The President, therefore, certainly had the right to act. Did Sharma fail to comply with the conditions of the licence?
In making that judgment, the President will have taken into account the fact that the country remains under threat of the heavily armed criminals who have massacred 23 people and are still at large.
Clearly, in these circumstances, broadcasting a threat to kill the Head of State and then re- broadcasting it on a number of occasions is wholly irresponsible and could be said “to encourage or incite or to lead to public disorder”.
The Constitutional protection of free speech does not protect a broadcaster from losing his licence if any of the conditions set out in the licence are considered by the Minister to have been violated.
Broadcasters, however, regardless of the conditions which require them to serve as “public trustee”, remain entitled to the common law protection of “natural justice” and there is no precedent in broadcast law which denies the broadcaster the right to a fair hearing prior to any punitive action being taken by a regulator against him.
The President did give a hearing to Mr Sharma and his attorneys prior to taking action to suspend the licence of CNS TV6 for four months.
It’s unclear exactly what advice, if any, was given by the ACB to the President. It’s also unknown whether the President sought the advice of the ACB, though, given the existence and intent of the Regulations establishing the Committee, it’s reasonable to expect that he would have done so and in writing.
In any event, as I have already pointed out, under the law the President does not have to rely on the ACB’s advice.
Mr Jagdeo and Mr Hoyte did enter into a political agreement that, as a condition of Mr Hoyte’s endorsement of the Amended Regulations, the government would not act independently of the ACB’s advice. The Agreement does not legally bind the government to honour it.
Was the President’s decision fair and reasonable, taking into account the prevailing conditions in the country as well as the fact that this is the second serious offence committed by the station? The fact that the law gives the power to the Minister and, in this case, the Head of State who was the subject of the threat, is unfortunate.
Guyana now remains the only major country in the Caribbean without modern broadcasting law instituting a politically independent Broadcasting Authority to administer and regulate broadcast licences.
The legislation establishing the ACB was, at best, an interim measure agreed to by the two major political parties to bring some minimum order to the use of the broadcast spectrum.
We have had broadcast legislation, in one form or another, in draft in Guyana since 1969, but, to date, the political will to legislate a modern Broadcasting Act which will relinquish political control over broadcast licensing and regulations, remains absent.
At the end of the day, Mr Sharma, because we are a democracy, is getting his day in Court. We should, nevertheless, remember that free speech is not an absolute right, and, for the broadcaster who is granted the privilege of a licence, it is a right abridged by very specific conditions demanding standards of public trust which all of our broadcasters, including the State owned television and radio stations, continue to treat with little respect.
Yours faithfully,
Kit Nascimento
