IRIS Special 2001 - Television and Media Concentration - Regulatory Models on the National and the European Level
Author: Susanne Nikoltchev (Ed.), European Audiovisual Observatory
In January 1999, the Committee of Ministers of the Council of Europe adopted a Recommendation to its Member States on Measures to Promote Media Pluralism.
The Appendix to Recommendation No. R (99) 1 commences with the words:
"Member States should consider the introduction of legislation designed to prevent or counteract concentrations that might endanger media pluralism at the national, regional or local levels. Member States should examine the possibility of defining thresholds – in their law or authorisation, licensing or similar procedures – to limit the influence which a single commercial company or group may have in one or more media sectors. Such thresholds may for example take the form of a maximum audience share or be based on the revenue/turnover of commercial media companies. Capital share limits in commercial media enterprises may also be considered. If thresholds are introduced, Member States should take into consideration the size of the media market and the level of resources available in it. Companies which have reached the permissible thresholds in a relevant market should not be awarded additional broadcasting licenses for that market."
The task defined here is by no means an easy one in view of the rapid convergence of markets that were previously divided along media and geographic lines. Limiting media power is a matter of considerable importance, in order to guarantee media variety while also continuing to ensure free and fair competition. The adoption of measures designed to defend pluralism is only one side of the coin here. The other side involves understanding existing regulations and applying them in practice. The parties concerned here are lawmakers, regulatory and monitoring bodies, and market players. They must all obtain an overview of the legal situation that is relevant to their work or their plans, so as to be able to perform their duties or plan their actions.
This book is intended first and foremost to contribute to a better understanding of the variety of legal problems and regulations that are relevant to limiting concentrations of power in the medium of television. The term television here covers television in analog and digital form, whether broadcast terrestrially, via satellite or via cable. The subject of the investigation will be the legal limitations on three types of economic interpenetration:
– "horizontal media concentration", i.e., ownership and capital integration among different television broadcasters;
– "vertical media concentration", i.e., ownership and capital integration among television broadcasters and their associated production and distribution markets;
– "diagonal media concentration", i.e., ownership and capital integration among television broadcasters and other media such as the print media and internet providers.
We shall concentrate in particular on the investigation of a selection of models for establishing rules, which are currently applicable in states of the European Union with comparatively large television markets, and which at the same time suggest alternative approaches to regulating media concentration. The countries selected for the study are Germany, France, the United Kingdom, Italy and Spain. In describing the legal situation in these countries we shall point out the special features and basic regulatory approach of each of the various legal models as well as the ways in which each model is implemented in practice.
The presentation of the media-specific rules applying in each country will be complemented by a description of the competition law in force in each country, since such law flanks media law in relation to merger control and in relation to providing protection against the abuse of dominant market positions.
These descriptions would of course be incomplete if they did not also include an overview of relevant EC rules and key decisions of the European Commission. There are already indications that Community law will achieve even greater importance in future, to the extent that the European Union makes ever-increasing use of the possibilities it has for creating a legally binding framework within which the European media market can flourish.
In order to clarify the implications that continued development of EC law might have on the coexistence of competition and media law, the description of Community law will be followed by a chapter on the overall development of, and current trends in, the field of media concentration regulation in the USA. In North America the need for regulation of television market power seems to be already receding.
By contrast, there is a need for regulation in countries which are just beginning to set up a private radio and television broadcasting market and which are therefore having to come to terms with the question of limiting media concentration for the very first time. Such countries include, for example, the Russian Federation, where the movement away from state-run towards private broadcasting is getting underway.