THE Public Service Broadcasting Bill, just published by the Ministry of Communications, contains the good, the bad, the ugly and the unspeakably ugly.

This article was first published in the Business Day on 3 November 2009.

Initial reports have focused on the end of the TV licence system, but the bill contains much more fundamental changes to our broadcasting environment. If it is adopted in its current form, we will be stepping back from public broadcasting and towards a return to the state broadcasting we had under apartheid.

It is a scrappy piece of legislation that shows the signs of hurried drafting and a rush to Parliament. No doubt the new Communications Minister, former defence force chief Siphiwe Nyanda, wants to show he can bring his military precision to the job and probably also wants to take advantage of the current SABC crisis. He has bypassed the traditional “white paper to green paper to legislation” route, and cut corners to get it in place within a few months of getting into office. But undue haste could have serious consequences.

The legislation gives the minister much more power over broadcasting than he has had before, and creates a whole raft of new statutory bodies to complicate the broadcasting sector. Its main features are:

• The end of the licensing system and the introduction of a special tax to pay for public broadcasting. This is not a bad idea. The licence system was not working and a special tax is at least our money, rather than a departmental grant. If it is our money, we can demand that the broadcasting serves the public; if it comes from the department, it can be used to manipulate the public broadcaster. Making it a tax also takes us away from the regressive format of the licensing model, where everybody pays the same, and creates a fee linked to one’s income.
• But it is not at all clear that the National Treasury would allow a special tax, having resisted all such forms of taxation for many years. What might be a compromise would be to keep it as a licence fee, and just allow the South African Revenue Service to collect it more efficiently than the SABC.
• The introduction of a Public Broadcasting Fund. This is potentially a good idea, as it is preferable to direct government funding of the SABC and will allow other broadcasters and producers to access the fund, and do public service work as well. However, there are not enough details to know if this fund will be independent of political influence, how it will divide up its money , or how it will handle such a large sum of money for so many different things. The fund is intended to cover everything from public broadcasting and programme creation to signal distributor Sentech and a new Museum of Broadcasting and Signal Distribution created in the bill.
• The creation of three new boards: a Local Content Advisory Board (to advise the minister on how to develop local content), a Public Service Broadcasting Advisory Board (to advise the minister on public service broadcasting), and a panel to evaluate the performance of the SABC board (set up with Parliament to measure board members against performance criteria).

All these appear to undermine the roles of existing bodies, such as communications regular the Independent Communications Authority of SA (Icasa) and the parliamentary communications committee. The big difference is these new bodies will be appointed by the minister. Rather than take on the existing independent bodies, Nyanda wants to introduce a whole new level of bodies that answer directly to him and which seem not to have clear public accountability.

New channels: the bill bizarrely obligates the SABC to apply within 12 months for licences for extra channels to deal with education, health, youth, sports, parliamentary services and “government and interactive services”. Since the SABC has not coped with its current load, and there has been no funding for the extra two regional channels created in earlier legislation, it seems that this is just wishful thinking. However, by creating new channels in this way, Nyanda is circumventing both Icasa, whose job it is to allocate licences, and the SABC itself, which should be deciding what needs to be on its channels and what is viable.

There is also an argument to be had about whether it is either healthy or desirable for the gargantuan SABC to get even bigger.

The bill reaffirms the hope in earlier legislation that the SABC’s commercial channels will cross-subsidise its public service channels, and ignores the fact that this model has been a clear failure. At the moment, the subsidisation is actually working the other way, since public service channel SABC1 makes enough money to subsidise the loss- making commercial channel, SABC3. This needs to be fixed, rather than perpetuated.

The bill creates a new international division in the SABC to absorb Channel Africa and promote international broadcasting. But it does it in a way that undermines the SABC’s independence, by saying that this division will promote the country’s foreign policy. Note that it is not the national interest that the SABC would be obliged to promote, but the current government’s policies.

Nyanda is given extraordinary powers: he can make regulations on any matter connected to public service broadcasting; he may direct any of the bodies mentioned in the bill (including the SABC board and Icasa) to take any action if they are unable to perform their functions or are mismanaged. This gives him unprecedented powers to interfere at all sorts of levels.

Community media must now be run “in partnership with municipalities”. It is not clear what this means, but it definitely threatens the independence of these broadcasters. In many smaller towns, one would expect community media to give voice to those who are taking on their local authorities for their poor service delivery, and this is unlikely to happen if they are forcibly linked to municipalities.

There are a number of other aspects of the bill that I can only believe are simple errors. It says community stations will in future have to comply with the Public Finance Management Act, a requirement that would close down this sector within weeks. That could not have been Nyanda’s intention.

Underlying all these changes is the explicit notion that public broadcasting must “align to the development goals of the republic”.

The problem is that it is never explicit what this means. Previous state attempts to align public broadcasting with developmental goals — such as in many newly independent African countries in the 1960s — proved disastrous, as it reduced the media to purveyors of sunshine journalism. There is nothing wrong with public broadcasters covering or even promoting development, but if you impose it from the top, force partnerships with local government, undermine the independent regulator and give the minister powers to interfere, then it is time to worry.

Nyanda has allowed only a month for discussion of this bill. Let’s hope it is a month of intense debate.