Media Development and Diversity Agency Bill: hearings

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
6 March 2002
MEDIA DIVERSITY AND DEVELOPMENT AGENCY BILL: PUBLIC HEARINGS
 

· the three television channels and nineteen radio stations of the SABC;
· all commercial radio and television broadcasters;
· both the common carrier and the selective and preferential carrier licensed signal distributors; and
· over thirty community broadcasters.

The NAB supports government's intention to promote media development and diversity. We hope that this intervention will facilitate the support of existing community radio stations and that it will enable the promotion and establishment of further stations.

Today we will make some brief comments and recommendations on the MDDA Bill.

To begin, let us revisit our concerns on government's Draft Position Paper on Media Development and Diversity that was published in late 2000. At that time, the NAB had the following concerns:

· We believed the mandate of the MDDA was too wide and in some instances overlapped with the mandate of ICASA;
· We believed the MDDA's budget was too large and over-estimated the number of stations the regulator was likely to licence, and;
· We argued that the MDDA should not be funded by way of a statutory levy on the broadcasting industry.

With the publication of the MDDA Bill, the NAB is pleased to note that a number of our concerns have been addressed. We do, however, have some remaining issues of concern. Our comments fall into three broad areas:

· Firstly, we are concerned that the powers granted to the Minister by the Bill reduce the MDDA's independence from government.

· Secondly, we believe the mandate of the MDDA could, in some instances be more clearly defined. The NAB is of the view that the MDDA's priority should be rolling out support to deserving entities and projects and that the law should make this clear.

· Lastly, certain terminology used in the Bill requires clarification.

For the purposes of this oral submission, I will concentrate on the first two areas.

2. MINISTERIAL POWERS

Dealing with our first concern on ministerial powers, the NAB supports the independence of the MDDA as is laid out in section 2 (4) of the Bill.

However, we are concerned that certain sections of the Bill appear to erode this independence. These are primarily sections 13(3) b, 17(k), 18(3), 18(4), 19(3) and section 21. The NAB is concerned that the Ministerial powers in these sections may limit the impartiality and independent decision-making ability of the MDDA.

In our written submission, we made an alternative proposal on each of these clauses. As you have the written submission in front of you, I will not go through those proposals in any detail now. Generally, we proposed that the clauses be redrafted to allow for the Board (as opposed to the Minister), to make regulations on matters such as priority projects, selection criteria, the application process and the percentage of funds to spend on various projects, in consultation with stakeholders.
In light of the comments by GCIS yesterday on the issue of joint determination, our concerns may also be addressed by the GCIS suggestion that it may be necessary to reword the legislation to make it clear that the regulations will at all times have the full approval of the board, and that they will be drawn up by the board and submitted to the Minister for publication.

In the interests of transparency, the NAB would also welcome the provision for public comment on those regulations dealing with criteria and percentages of money to be allocated to different projects.

On the appeal procedure, it was noted by GCIS yesterday that they would welcome suggestions for alternative appeal mechanisms. In our written submission we proposed that instead of the Minister having the power to intervene in a decision of the board, the law make provision for an ombudsman. This ombudsman should have the power to refer a matter back to the board should an aggrieved person show compelling reason. We believe the introduction of an ombudsman could be done in a fairly simple manner along the lines of the Banking Ombudsman and could be built into the Bill through new provisions along the lines of the current sections 5 - 8, and amendments to section 19. We would be happy to supply a further written proposal on this, should the committee request it.

3. MANDATE AND FUNCTIONS OF THE MDDA

Turning to our second area of concern on the mandate and functions of the MDDA, we believe the general functions of the Board should be reformulated in order to allow it to more clearly focus on its primary goal - the funding of community and small commercial media projects. We are concerned that open-ended provisions in section 13 (1) such as the provisions to "promote media needs", "engage in research" and conduct "marketing" may distract the board from this goal and could overlap with the mandate of ICASA.

We therefore propose that in section 13(1), the functions of the board should be confined to:
· engaging in research in order to select projects;
· selecting such projects;
· raising public awareness with regard to media development and diversity issues; and
· negotiating with public utilities, organisations and financial institutions to acquire indirect support for projects, including support in the form of discounts or subsidies and low-interest rate loans.

Our full proposal on the wording of this section is contained in our written submission.

On section 13(4) which empowers the Board to make recommendations regarding media development and diversity, we believe this section makes the mandate of the MDDA too wide and detracts from its primary purpose and function. We also believe this provision could be perceived as shadowing the function and objectives of ICASA. We therefore propose that this section be deleted.

4. TERMINOLOGY AND DRAFTING ISSUES

Our third area of concern relates to various terminology and drafting issues. These are laid out in our written submission and I will not deal with them now.

5. CONCLUSION

In conclusion, the NAB supports and agrees with the proposed objective of the MDDA and the majority of the proposed functions of the Board.

However, we are concerned that in some cases the independence and impartiality of the MDDA will be compromised and that amendments to the Bill are therefore needed.

The NAB is also concerned that the mandate of the MDDA should be clearly laid out to prioritise and facilitate the delivery of support to deserving entities. It is, after all, the delivery of mechanisms to address the problems facing community radio that we urgently require.

A year ago, the NAB addressed this committee on the state of the community radio industry. We noted the widespread problems caused by the delay in licensing of four-year community stations. At that stage three provinces: KwaZulu Natal, the Western Cape and Gauteng had not yet had their four-year applications heard. A year later, there has been progress, although it is limited. KwaZulu Natal has had its hearings and non-competitive applications in the Western Cape have been dealt with. However, most applications for the Western Cape and Gauteng are still outstanding. The consequences of this are severe. As we noted last year, as long as there is this delay, stations have to apply for a new temporary licence every year. Some stations have applied for up to seven temporary licences and are still not assured that that they will be issued a four-year licence. Stations broadcasting on temporary licences struggle to convince advertisers and donors that they are a sustainable option. Working year to year also impacts on the ability of these stations to formulate long-term plans on staffing, training and programming.

This is part of the context that the MDDA may be able to address, by giving grants to stations which, in light of these continuing licensing delays, are struggling to remain viable.

Another hurdle community radio faces is the introduction of the needle time levy through the recently passed amendments to the Copyright Act and the Performers Protection Act. Needle time will mean an additional percentage of turnover payable by all broadcasters, including community broadcasters, for the use of music. The NAB fears that this levy may severely affect the viability of both community and greenfields commercial broadcasters and that it may therefore negatively impact on the diversity of our broadcasting landscape.

Again, it is hoped that the MDDA could assist in mitigating this effect.

The NAB is grateful for the opportunity to comment on the Bill and is hopeful that this input will assist the committee in its deliberations.

Appendix 2
Towards Media Development, Diversity and Transformation
Submission by the South African Communist Party
To the Parliamentary Hearings on the Media Development and Diversity Agency Bill

1. INTRODUCTION
1.1 The South African Communist Party (SACP) welcomes the Media Development and Diversity Agency Bill as introduced to parliament. We congratulate the Minister of Communications and the Government Communication and Information Systems (GCIS) for their work in this regard.

1.2 The purpose of this SACP submission is to consolidate the Bill in order to ensure a sustainable programme of action to effectively realise development, diversity and transformation of our country's media as a whole.

1.3 This submission also seeks to contextualise the MDDA and its role given the issues, interests and rights of poor and working people when it comes to the right to information, access to, control and ownership of the media, and freedom of expression. Poor and working people constitute the majority of those marginalised by the largely un-transformed media in our country.

1.4 Most importantly, the SACP regards the MDDA Bill and the Parliamentary Hearings as an important opportunity to reflect on the general state of transformation of the media industry as a whole, including the advertising industry. In this regard, the SACP submission also incorporates additional comments on challenges for the fundamental transformation of our country's media. The SACP calls on the Parliamentary Committee, the GCIS, commercial media, community media, media workers and other stakeholders to utilise the MDDA process to explore and take action on the role of, and the challenge of the transformation of media in our society.

2. SPECIFIC COMMENTS
2.1 The independence of the MDDA
2.1.1 Current patterns of concentrated ownership and control of the media promote commercial interests and the logic of the private capitalist market. This situation privileges and entrenches the freedom of expression of an elite at the expense of the interests, issues and experiences of the majority of our people. This situation is an anti-thesis to the role that should be played by a truly free and independent media in a free and democratic country. For these reasons the SACP strongly argues for an MDDA that is fiercely independent from commercial interests and the logic of the private capitalist market. Therefore the MDDA Bill must include appropriate mechanisms to ensure this independence whilst at the same time ensuring that private commercial media plays an appropriate role in media development, diversification and transformation. This implies that the Bill's Preamble and Sections 4, 5, 6, 10 and 14 of the Bill must be appropriately amended to factor in this independence from private commercial interests. The mentioned sections deal with the Constitution of the Board, Nomination and Appointment of members of the Board, Disqualification, Conflicting Interests and Finances of the Agency respectively.

2.1.2 The second aspect of the MDDA's independence concerns its independence from government. Given the nature of envisaged work of the MDDA, it is necessary that it must be afforded the highest guarantee of independence possible in terms of the law in order that the MDDA board can independently set its programme, activities and funding priorities. The SACP therefore raises problems with the provisions in the Bill that essentially dictate that the Minister must prescribe detailed criteria for selecting MDDA supported projects, the applications process and the percentages of grants to be made by the MDDA. These powers belong to the Board and not to the Minister. The Board of the MDDA must operate independently and account to the public through reporting annually to parliament. This is the case with other independent statutory organisations whether set up by the constitution or specific legislation - this refers to structures such as the South African Human Rights Commission, the Commission on Gender Equality, Eskom, the South African Broadcasting Corporation, etc. Whilst the SACP argues for a central role of our national democratic state in transformation generally, and in transforming and diversification of the media establishment particularly, the SACP argues that we must distinguish between the role of the executive arm of government and the role of a financially, administrative and operationally independent MDDA. The Minister has a role to play in the development of regulations and a broader framework related to the functioning of the MDDA but not in the functional operations of the MDDA.

2.1.3 Having said the above and whilst the MDDA must be independent in the manner discussed above, however the MDDA cannot be goal-independent of our country's developmental objectives as enshrined in our country's constitution and the Reconstruction and Development Programme (RDP). As the SACP we argue, without fear of contradiction, that the MDDA's goals, aims and objectives must be accountable and answerable to the vision, aims, objectives, principles and values enshrined in the RDP. But this is not the same as the role the current Bill envisages the Minister to play.

2.1.4 To argue for the alignment of MDDA objectives to the constitution and the RDP is not to compromise the independence of the MDDA. In any class based society, the concept of independence is relative and contingent upon power relations between existing social and class forces in society. In our situation, the constitution and the RDP are an expression of this struggle between contending classes. Therefore the MDDA, in fact the media as a whole, is an unavoidable terrain of struggle between social classes. Therefore, it is important that the MDDA, whilst it attains operational, financial and administrative independence, it must base its overall independence on the constitution and the RDP in order to promote the interests of poor and working people. Therefore the preamble of the MDDA must more emphatically and clearly align the MDDA objectives to our country's constitution and the RDP.

2.2 The role, functions and statutory character of the MDDA
2.2.1 As already implied above, the SACP argues that the MDDA should be seen primarily as a watchdog and promoter of the constitutional rights of freedom of expression and access to information. Part of its watchdog function is to fund targeted media in order to give effect to these rights. However, the MDDA should not be understood as a funding body only, as providing funding in the absence of a comprehensive approach towards media development, diversity and transformation will be self-defeating.

2.2.2 It will, therefore, be necessary for the MDDA to have powers to make recommendations on regulatory, policy-making and legislative issues. These powers must take into account existing statutory organisations and their regulatory functions and powers. If the MDDA does not have these powers it will be toothless and ineffective in enhancing and advancing real media development and diversification. Therefore appropriate criteria and principles of regulation insofar as they apply to media development, diversity and development must be developed and the MDDA Bill must be amended to include these powers.

2.3 The accountability of the MDDA
2.3.1 The SACP reiterates that the MDDA must report and account annually to Parliament in line with standards and regulations on oversight and accountability of other statutory and constitutional institutions when these bodies account to parliament. The SACP endorses the provision that the MDDA should conform with the requirements of the Public Finance Management Act.

2.3.2 The SACP welcomes the provision in the Bill for an annual MDDA meeting with stakeholders in the media. But it is important that MDDA stakeholders are not strictly limited. Otherwise, it will be possible that other important stakeholders may be excluded from this important forum. For example, the MDDA Draft Position Paper did not specifically include parliament, media workers, labour in general, MDDA stakeholders and beneficiaries since they are not explicitly listed as participants in the Annual Review Forum. All these are important stakeholders in the media.

2.3.3 Further, the SACP argues that this MDDA annual stakeholders meeting must also serve to assess general transformation of the media as a whole as per discussion in section 4 below.

2.4 Constitution of the Board of the MDDA
The SACP argues that the representation on the MDDA's Board cannot be limited to dominant and existing media players as it is currently proposed. The current proposal in the Bill constitutes the Board as follows: -
a) GCIS
b) Commercial Print Media
c) Commercial Broadcast Media
d) Community Media
e) General Public

2.4.2 This proposed composition is not in line with the MDDA objectives. It excludes key interests and stakeholders currently marginalised from the media. Specifically, the SACP objects to the separate representation of commercial print media and commercial broadcasting media in the Board. This essentially means that the very private commercial media we seek to diversify and challenge unjustifiably and unfairly gets two seats whilst community media and other marginalised voices and interests are effectively marginalised from the MDDA Board. Such a composition will reinforce the current media ownership and control patterns under the cloak of media development and diversification.

2.4.3 Other important sectors that are excluded from, and need to be represented in the MDDA board are labour and community sectors as defined under NEDLAC Constituencies. Labour essentially means employed workers in the formal sector who are represented in a plethora of policy forums by trade union federations. Labour represents an important sector in society the interests, needs and values of which are effectively undermined under the current media ownership and control patterns. By community we mean essentially civil society - interests and organisations in the fields of human rights, women and gender, youth, development, children, disability rights, religious sector, unemployed people, civic movement, NGOs generally, etc. as defined in the NEDLAC Constituencies. These are important role players that in and of themselves develop media that is not currently regarded as part of the media. They also have an interest in the development and diversification of the media. This community sector must be understood as being different from the general public.

2.4.4 The SACP also does not understand why the public broadcaster is not included in the Board of the MDDA. The public broadcaster has a public mandate and therefore an interest and a role in the development and diversification of the media. The MDDA Bill cannot give an unjustified powers to the very private commercial interests we seek to diversify and challenge whilst limiting or leaving out the public broadcaster from the Board of the MDDA. The public broadcaster cannot be included under commercial broadcasting media.

2.4.5 The SACP therefore proposes the following composition for the MDDA Board: -
a) A representative of the GCIS
b) A representative of the Public Broadcaster
c) A representative of Community Media
d) A representative of Community
e) A representative of Labour
f) A representative of Commercial Media
g) 3 Nominees from the general public

2.4.6 Further, the SACP reiterates the call it made in response to the MDDA Discussion Paper that the MDDA board should be activist - essentially a board centred on activism for media diversity, development and transformation - and not just tilted towards expertise only. This therefore means that the qualifications, expertise and experience required of the MDDA Board collectively must be tilted towards this kind of activism. Importantly this means that the section 4(2) of the Bill must include experience in human rights, workers' rights and independence from private commercial interests.

2.5 Funding of the MDDA and its funding priorities
2.5.1 The challenge of defining the MDDA as a funder is that it cannot decide on funding priorities in the absence of a policy framework, which in turn will be premised on an understanding of the needs of fundamental media development, diversification and transformation.

2.5.2 The MDDA needs both the freedom and the powers to determine its priorities for funding, and also needs to ensure that its own funding is sustainable and its funding efforts are not being disabled by industry activities or the narrow focus or whims of a government bureaucrat: therefore the importance of statutory powers for the MDDA. If the MDDA is to be established as a watchdog and promoter of the constitutional rights to freedom of expression and access to information, then it needs to enjoy the necessary levels of independence including its financial independence and its access to sufficient financial resources.

2.5.3 According to the MDDA Bill, the MDDA would receive funding from three sources: government, commercial media and other unspecified donors. Whilst the primary source of the MDDA's funding and budget will be public resources, but what is the extent to which we can talk of an acceptable level of funding from the public sector? Related to this question is the extent of resources in the private sector and what we are doing to tap from these resources. The MDDA cannot and must not be unduly limited by resource constraints. Otherwise the MDDA, its aims, objectives and independence will be undermined.

2.5.4 What is of serious concern to the SACP is the fact that two of the identified funding sources will essentially be voluntary in nature. And the SACP does not believe that voluntary funding mechanisms will work when it comes to private commercial media.

2.5.5 Therefore, the SACP argues for an approach which guarantees that private commercial media funds the MDDA on a permanent and sustainable basis. The SACP proposes that the MDDA Bill must prescribe the following: -
· A statutory levy, based on a percentage of gross annual revenue, which must be paid by private commercial media and the advertising industry. The levy should apply both to single-medium and multi-media organisations.
· The MDDA should be given the powers to prescribe and revise this levy on a regular basis through regulations, and should also be able to create penalties in respect of non-payment of this levy.

3. MEDIA DEVELOPMENT AND DIVERSITY AS PART OF FUNDAMENTAL MEDIA TRANSFORMATION
3.1This part of the submission addresses broader media development and diversity beyond the MDDA Bill. This part of the submission follows up the SACP submission to the 2000 hearings of the South African Human Rights Commission (SAHRC) on racism in the media and the SACP submission on the MDDA to parliament in March 2001.

3.2 The MDDA Draft Position Paper gives chilling details about the ownership, readership and what is covered in our media. As we said in our SAHRC submission these current ownership arrangements mean the freedom of the white male elite only, now being joined by a new black elite, to express its interests over and above a broad range of interests in society. The MDDA process is an attempt to correct this historical legacy. But if media development and diversity narrowly focuses on community media, then it will leave the largely un-transformed media to the whims and moods of the private capitalist markets which have no other interests and obligations other than those of private profit. Therefore the MDDA process cannot leave current ownership, control and coverage of our media untouched. Tempering with current ownership patterns means an MDDA and government roles to introduce new forms of collective ownership and control of our media. As we said in our submission to the SAHRC, patterns of ownership in our have a huge impact on what the media is and covers.

3.3 Linked to this is the issue of foreign ownership of our media. The MDDA Draft Position Paper states that Independent Newspapers and the Mail and Guardian are more than 50% foreign owned. As a result, who are they accountable to - the South African public or their foreign capitalist owners? To what extent is this foreign ownership influencing their coverage of South Africa and Africa as a whole? Should we not be putting a limit on the extent of foreign ownership of our media?

3.4 Whilst the SACP acknowledges that part of media transformation will lead to increased black ownership of the media, but this black ownership does not necessarily offer a strategic opportunity for working and poor people in media ownership, coverage and control. Once more, this points to the need for a progressive and fundamental approach to media transformation which will go beyond perpetuating the current patterns of capitalist ownership, albeit deracialised.

3.5 Given the depth and gravity of all these matters raised above, the SACP reiterates its call for a Media Transformation Summit out of which should emerge a Media Transformation Charter. We ask the GCIS and media workers to engage the media industry towards this Summit. We also specifically call on this committee of parliament to host such a summit in the next 18 months. In addition to issues raised during these hearings. issues for discussion at this Summit must also include - labour relations, affirmative action, media ownership and control, the promotion and use of all South African languages in our media, the transformation of the Advertising Industry, public service obligations on all media, and the transformation and funding of the SABC.

Appendix 3
SA National Editors' Forum: the MDDA Bill
Mathatha Tsedu, Chairperson
Submission to Parliamentary Portfolio committee on Communications
6 March 2002

SANEF
1. As the name suggests, Sanef is a forum that brings together senior editors in print and broadcast media, as well as trainers. It does not represent all editors, and certainly not all journalists. Neither does it represent media owners. However, it is still widely recognized as one of the important journalistic associations in the country.

2. Sanef is also not a tightly knit organization that develops an agreed position on every issue. Nonetheless it is based on two core principles: support for transformation and media freedom. Within these broad parameters there are often various debates and positions adopted, yet it is also within these boundaries that Sanef members in all their diversity operate. In short, Sanef is profoundly committed to the two fundamentals of transformation and media freedom - values that are, indeed, enshrined in the South African constitution.

3. From its inception, Sanef has had a sub-committee tackling the issue of media diversity, for the reason that this matter is extremely important to the values of transformation and media freedom. As a forum, we have engaged with much of the process preceding the Bill, and we have had several briefings from GCIS, as well as one from the Print Media South Africa about their parallel development initiative.

4. There is thus an organic and longstanding interest by Sanef in the objectives of the MDDA. As such, we identify fully with the preamble to the Bill which states (i) that it is desirable to create an enabling environment for development and diversity, (ii) that it is desirable to redress exclusion and marginalisation from media, (iii) and that it is desirable to support community and small commercial media projects.

5. It is against this backdrop that the following comments are made on the basis of consultation with various Sanef members although they are not an officially adopted position.

TRAINING

1. In recognition of the imperatives of transformation, Sanef from its inception has also included trainers as important members of the organization and contributors to transformation. There is an Education and Training sub committee within Sanef that involves trainers in formal training institutions like technikons, NGOs and universities, as well as industry-based in-house trainers.

2. This set-up is what informs Sanef's view that the MDDA Bill underestimates the importance specifically of training in creating an enabling environment for development and diversity. Our view is that training is given insufficient attention in clauses of the Bill. Inflated expectations and projections of the MDDA's activities could be the result, if this deficit is not remedied. The point is that if the MDDA is to be effective as an institution, the Bill needs to emphasise the importance of training a lot more than it currently does.

3. However, Sanef does not recommend that the MDDA become a training provider itself. Rather the agency should utilize existing training resources

COMPOSITION OF THE BOARD

Sanef believes that if MDDA Board members are drawn from different sectors, this will add value to the organization. However, Sanef also believes that although such members will broadly reflect a range of stakeholder interests, they will need to act in the interests of the Agency as a whole. As such, the Bill should make clear that members should not see their role on the Board as being to advance specific sectional interests there.

CRITERIA FOR FUNDING

Sanef believes the Bill should specify that funding criteria should be clear and transparent and understandable to the public and especially to applicants. In addition, they should - as far as possible - be objective and measurable. For example, the following matrix could be considered. Projects scoring in each block would get priority; those with fewer scores would get less priority.