While the driving force behind telecommunications regulation has been primarily the liberalization of the sector and promotion of competition, the regulation of broadcasting and media has been mostly influenced by the social and cultural impact of the industry.1 Broadcasting is defined by the ITU as a radiocommunication service in which the transmissions are intended for direct reception by the general public. This service may include sound, television, or other types of transmission.2 Broadcasting often has substantial content regulation because it is perceived as playing a special role in the cultural life of a country and in developing a national identity. For example, in order to promote social objectives, the majority of OECD countries have regulations regarding broadcasting content and media ownership.3
Telecommunications and broadcasting services traditionally have been regulated separately, whether by the same regulatory entity or a different regulatory entity.4 In a majority of countries, broadcasting is regulated by a separate entity or responsibility over broadcasting is shared by the telecommunications regulator with other government entities responsible for broadcasting. In other countries, such as Australia, Bulgaria, Canada, Croatia, Ghana, India, Italy, Japan, Malaysia, Norway, South Africa, Switzerland, Tanzania, the United Kingdom and the United States, the telecommunications regulator also fully responsible for broadcasting.5
Convergence has resulted in new technologies and services that often are not encompassed in existing service definitions and regulation. This has challenged the adequacy of the current industry-based regulatory framework. For instance, should audiovisual content offered through the Internet or a mobile telephone be defined as telecommunications or broadcasting?6 As broadcast content and telecommunications network carriage become more integrated, a need exists to review telecommunications and broadcast media regulation to accommodate the regulation of new services and ensure consistency in policy and regulation. Convergence from a broadcasting perspective is primarily manifested in the joint offerings of video and high-speed Internet service (and often voice service), mostly via cable television networks.7
In order to address the challenges of convergence, some jurisdictions such as Australia, Malaysia, Hong Kong (SAR), and the United Kingdom have established a common regulator with responsibilities over the telecommunications and broadcasting sector. Regulators such as the Office of Communications (OFCOM) in the United Kingdom and the Malaysian Communications and Multimedia Commission (MCMC) have undertaken regulatory reforms to enact new converged regulatory frameworks that apply to all electronic communications networks and services. In Hong Kong SAR, the Office of the Telecommunications Authority (OFTA) is currently reviewing its broadcasting regulatory regime, and considering the benefits of establishing a unified regulator, merging the Broadcasting Authority (BA) and OFTA into one regulator to oversee the electronic communications sector.
ENDNOTES
1 Id. at 10.
2 Article 1.38 of the ITU Radio Regulations, at http://www.itu.int.
3 OECD Communications Outlook 2005, Chapter 7, at 203.
4 According to an OECD survey, only six of the 30 member countries give responsibility for broadcasting to the same regulator or Ministry, namely Canada, Italy, Japan, Switzerland, the United Kingdom and the United States. See The Implications of Convergence for Regulation of Electronic Communications, OECD Working Party on Telecommunication and Information Services Policies, 12 July 2004, at 7. Australia recently in July 2005 merged the Australian Communications Authority and the Australian Broadcasting Authority to form a new regulator, the Australian Communications & Media Authority. However, in most of these countries despite the unified regulator, broadcasting and telecommunications sill have separate legislation. Some countries, such as the United Kingdom in enacting the Communications Bill, have moved towards creating a single legislative instrument for all electronic communication services.
5 ITU World Telecommunication Regulatory Database 2005.
6 The Implications of Convergence for Regulation of Electronic Communications, OECD Working Party on Telecommunication and Information Services Policies, 12 July 2004, at 7.
7 Id.