The Broadcasting Authority of Ireland has published a new policy document on the licensing of broadcasting services.
The Broadcasting Authority of Ireland (BAI), the body responsible for the regulation of broadcasting in Ireland, published a new ownership and control policy on 26 April.
One of the BAI’s key functions and responsibilities is the licensing of independent radio stations. The 2012 policy sets out the rules and the regulatory approach that the BAI follows when assessing applications for broadcasting licences and when assessing requests for changes to the ownership and control structures of broadcasters that are already licensed by it. The BAI carries out all such assessments in accordance with the Broadcasting Act 2009.
The 2009 Act requires the BAI to endeavour to ensure “the provision of open and pluralistic broadcasting services” and to “promote diversity in control of the more influential commercial and community broadcasting services”.
In considering applications for radio broadcasting contracts under the 2009 Act, the BAI must take into account the desirability of allowing any person or group of persons to have control of, or substantial interests in, an undue number of radio broadcasting services.
As with its previous ownership and control policy, the BAI continues to provide minimum and maximum thresholds in respect of what it considers to be an “undue number” of radio broadcasting services. It explains that these thresholds are designed to ensure that a reasonable range and number of different voices are available to the Irish public.
In its Draft Broadcasting Services Strategy Consultation Document of August last year, the BAI had proposed considering whether the threshold for the maximum permitted share of commercial radio broadcasting services licensed under the 2009 Act should be reduced to 20%. There is no change, however, in the upper threshold under the 2012 policy and a ceiling of 25% remains. When it published its new 2012 policy, the BAI noted in its press release that its overall policy objectives remain relatively unchanged.
The following thresholds are considered by the BAI when assessing the licensing of commercial radio broadcasting services:
- A number of 15% or less of the total number of commercial radio broadcasting services licensed under the 2009 Act is considered to be an acceptable level for any one entity.
- A number equivalent to between 15% and 20% of the total number of commercial radio broadcasting services licensed under the 2009 Act requires additional consideration. Among other things, the BAI makes its decision based on a compliance audit submitted by the entity concerned in respect of all of its radio broadcasting services over a twoyear period. The audit sets out compliance with statutory, policy and contractual provisions.
A number equivalent to between 20% and 25% of the total number of commercial radio broadcasting services licensed under the 2009 Act requires further additional consideration. Again, the BAI takes into consideration the compliance audit described above. In addition, it takes into account five factors:
- The number of services where an entity has control rather than a substantial interest.
- The extent to which the relevant services are operating in common or separate franchise areas.
- The relative audience shares of the relevant services when compared with all radio broadcasting services licensed under the 2009 Act.
- The extent to which the relevant services have a common target audience focus.
- The extent to which the relevant services represent a concentration of the supply of news and information, taking into account all communications media.
- A number over 25% of the total number of commercial radio broadcasting services licensed under the 2009 Act is deemed unacceptable.
As well as this, the BAI also considers the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of radio broadcasting services or an undue amount of communications media in a specified area.
The 2012 policy notes the Government’s plans to revise legislation in relation to media mergers. The BAI has stated that it will take into account the content of any such legislation, particularly the extent to which “the concept of concrete indicators of diversity is introduced in respect of media acquisitions and mergers”.
It is expected that a Consumer and Competition Bill will be published by the Government later this year which, among other things, will significantly change the regime regulating media mergers and acquisitions in Ireland. Although a draft text of the Bill is not yet available, it is expected that all media mergers will have to be cleared by the Minister and the Competition Authority. The Minister’s analysis will be based on public interest criteria in terms of plurality and diversity of the media, while the Competition Authority’s role will be confined to a competitive assessment.
The BAI currently has a role in media mergers where there may be a change in the ownership and control of a licensed broadcaster as a result of the merger, or where the BAI makes submissions or observations regarding the proposed merger to the Minister. It remains to be seen, however, whether the BAI will have any increased role in media merger clearance under the new statutory regime and whether it will have any knock-on effects on the BAI’s ownership and control policy.