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Matthew Hamilton, Director of Operations and Public Affairs, Headstrong


Regulating for Change: Are you being served?

Helen Shaw - Managing Director Athena Media.

Broadcasting Commission of Ireland, Nov 18th 2004

The way the two words run together - citizens and consumers - it often seems they are the same thing. The UK communications regulator OFCOM - states it exists to serve the interests of an animal called the citizen-consumer in the digital age as if the two are in harmony. OFCOM goes on to define this as:
" Balance the promotion of choice and competition with the duty to foster plurality, informed citizenship, protect viewers, listeners and customers and promote cultural diversity.
" Serve the interests of the citizen-consumer as the communications industry enters the digital age.

What is a citizen-consumer?
We can see most citizens are consumers and most consumers are citizens. Yet the interests of the two are distinctly different and can even be in conflict.

The state defines legislation to protect consumers at all stages of a commercial transaction to ensure people get what they pay for, within the law, but the state's responsibilities to citizens is far more profound and is, fundamentally, about the nature of civic society, participatory democracy and the public sphere.

So what does that mean in practical terms? As a consumer, I used to happily use plastic bags when I did my weekly shop and like most people I enjoyed not paying for those bags and saw it as part of the service of the supermarket I was visiting. Consumers and supermarkets were happy to let that situation continue. On the other hand the state looked at the long-term impact of the plastic bags on the environment and considered not just my short-term consumer interests but my long-term citizen interests and indeed responsibilities and imposed a levy on the bags effectively removing them from use.
The consumer was inconvenienced and moved towards durable green bags, the citizen, on the other hand, enjoyed a better public environment which will benefit her children and grand children. The smoking ban in public places is another good example.

Consumers, who were smokers, objected to their described right to consume cigarettes in pubs and restaurants being removed yet the greater good, for the entire citizen body, in terms of public health, was protected.

In many ways consumer interests are often short-term and personal objectives while citizen interests are long-term and potentially communal.

A shopper may be happy to get clothes at low cost, which on a personal basis seems great value, but if those clothes are produced at that cost through children as young as eight or ten working for 80 cents a day in Thailand, then the global citizen responsibilities we face as both nations and people is hurt. Many businesses will say, echoing the primacy of the marketplace, that their sales, or in broadcasting terms audience figures, show their citizenship power. But since consumer and citizen interests are often not the same the concept that market popularity means you are serving citizens does not work. Selling burgers cheaply can make lots of profits but it may not serve the citizen interest if that food is low in nutritional value, high in fat and ultimately leads to health issues. Letting the marketplace decide may mean short term gains but long term price tags in terms of environment, health or social policy.
In broadcasting what does the balance between consumers and citizens mean?

Frequently this debate has been that RTE - as the public funded broadcaster - should serve the public interest - and this is a legitimate and real expectation of the public which should be met - yet we must remember that the broadcasting spectrum belongs to the public, is a public good, and therefore everyone benefiting from that good, commercially, must reflect that obligation. The public, in a sense, allow commercial companies to exploit their good in return for services - services which provide them with returns not just as consumers but as citizens.

If it was solely a consumer return it would be the same as any other commercial good they 'buy' but in this case the good e.g. broadcasting services funded by advertising - is provided to them through the means of their own public good - spectrum. The good they buy - is of course the access they give the commercial broadcaster to sell advertisement.

This relationship - in terms of the obligations of commercial business operators in broadcasting - is reflected in our broadcasting legislation in terms of the 'public interest' requirements, e.g. news and content requirements. Yet it is also reflected in our ownership and cross-media requirements. We believe diversity - e.g. a wide choice in content serves the wider needs of the public - and that plurality of ownership enriches diversity.

The connection between information and democracy has been well mined from Plato to James Madison and in our own political landscape we regulate content to be both balanced and fair across the broadcasting landscape. In the US the Fairness Doctrine was lifted in 1987 and in a sense that allowed Fox News to take a polemic line in news - to describe itself 'as fair and balanced news' in its branding but actually emphasising opinion over reporting. While News Corp. Rupert Murdoch's company owns both Fox and Sky News - Sky operates within the UK regulations which ensure content balance and which make it difficult for a terrestrial broadcaster to take a political stand. In Ireland, regulation has ensured that news in independent media whether Today FM or TV3 carries similar onus at that on RTE - to report accurately and impartially. Such regulation has in effect protected the public interest and the wider long-term impacts of information in society. It equally creates a situation where the impact of ownership on content is reduced.

But ownership is not neutral no matter how benign. Even public ownership brings challenges in terms of political independence as we have seen through the history and development of RTE. Who owns commercial independent media is important and does raise issues far beyond competition or the competency of the Competitions Authority. Ownership, and its impact on content, is best seen in situations of extremity - like the US - where unregulated concentration of ownership has led to a neutering of TV news.
The impact of media mergers and media oligarchies is not reported by the half dozen conglomerates that control the TV news media. Michael Eisner of Disney who own ABC News once commented that the best way to avoid a conflict of interest in ABC covering Disney was not to cover the story. Equally the commoditisation of news - as in Fox News - has led to stories being directly suppressed as with the Monsanto antibiotics in cow's milk investigation which led to reporters taking a case against Fox.

In the UK, ownership restrictions have been relaxed in the 2003 Communications Act - allowing greater concentration of radio ownership - and allowing foreign companies like Viacom etc to buy into UK broadcasting services.

In Ireland there is a general recognition that some level of ownership concentration may be healthy to the future of the radio market - allowing economies of scale and investment - but the balance will be not to lose what is there - a diverse local radio market which often provides mixed schedules of speech and music.

In the Ox Report we balanced the needs of consumers and citizens and tried to explore the conflicts. In our view - and it's one of the core findings - the radio spectrum must be fully utilised to serve the public - who own it. If spectrum is available it should be used to provide choice and serve audiences rather than drip fed in order to protect the interests of the existing businesses. Clearly there is a policy and market need to ensure the continued growth of the radio industry but in no comparative study can we see a justification for a hold back on spectrum - a public good - in order to avoid competition. Competition has enriched the broadcasting market and strengthened the flow of information in our society.

Extending competition will ensure that niche choices are explored and provide, as Newstalk does in Dublin, real choices. While much debate has centred on the ability of Dublin to support more radio, in any comparative study Ireland and Dublin in particular has less radio choices than other similar sized populations. Diverse music choices are still absent.

We maintained that there is the potential - as we found in some other countries like Norway - for another national station - using a rationalisation of spectrum and argued that this would be positive if and only if it provided defined or extended choice in national radio. The objective of a national station would not be to replicate existing stations but do something distinctly different in music and speech - which has national appeal.

Equally we argued that it was not in the public interest that there was no national use of AM - other than the replay of Radio 1. In the UK, national channels like Five Live - Virgin and Talk all grew in AM and have since developed digital lives. The independent sector may argue that a children's radio channel is not commercial - and it may not be the first choice in a commercial market - but that may be the role of regulation to define gaps and stimulate interest in tendering for those gaps.
Newstalk in Dublin has shown the commercial potential for stations doing other than pop music and that kind of radio thinking is needed to ensure that real choices are being offered and created.

The key to the balance of interests between consumers and citizens is in my view that policy relating to public goods - and spectrum remains a public good - needs to be primarily focused from the citizen's interests looking at the market dynamics in as broad and long-term a view as possible.

If policy leads through legislation and direction then regulation will be both rationale and accountable. In the Ox report we emphasised the need to make the process of broadcast licensing more accountable to society so that the decision-making process is defined in as objective a form as possible through a scoring system for licence applications and decisions and a greater involvement of public interaction in the development of new services. It's not reasonable that the public should be surveyed to identify levels of interest in genres of programming whether speech or music and equally not unreasonable to have audience council models, elected through open canvass rather than appointment, as part of the means of extending public participation in the broadcasting sphere.

Across Europe, an EC funded research project is now assessing ways of increasing citizen participation in broadcasting due to the crucial role that information and culture plays in our societies. The Audience Council model created by RTE since last year is being seen as one of the 'best practices' from the survey with a view to recommending similar approaches in other regions. In the UK, the role of public advocacy groups has been important in the formation of new thinking on broadcasting and regulation. The very idea of OFCOM's citizens and consumers - came from advocacy groups pointing out that a consumer only model did not recognise the civic role of the media - in particular broadcasting.

Unlike the OFCOM model, the proposed new combined regulation, the Broadcasting Authority of Ireland - should see its remit as regulating primarily for citizens and headlining that at each point of the debate over content, licensing and regulation. If serving the public citizenship comes before consumerism we can ensure a broadcasting sphere which works economically but which maximises the best use of public resources for the whole population.

Indeed the Broadcasting Authority of Ireland itself is already - in my view - an outdated concept. While the legislation is still being written the growing need is for an integrated content regulation which reflects the nature of new media and its relationship with broadcasting. What we should more accurately and more effectively be creating - in order to adequately serve the public interest - is a Media Authority which looks at content regardless of its platform. This is already happening in other countries including Australia and increasingly as the debate over combined or integrated regulation grows the entwined nature of the internet, broadband, and broadcasting in multi-media content provision is seen

In Ireland we are at a key point of departure in both broadcasting legislation and regulation and we have the opportunity to learn from international examples and trends. We have already - through initiatives like the Forum on Broadcasting, the Charter and the Access Fund - led in these issues and what is now important is to continue to lead in the development of the new regulator.

OFCOM - while it represents the merger of five regulators - does not do what the Broadcasting Authority of Ireland is intended to do - bring together content regulation for public and independent broadcasting. The opportunity and challenge is immense. And these are crucial issues for us to debate - and yet that is a debate which I do not hear happening - at all - in public. We have had extensive independent and public consultation on a range of broadcasting issues this year from radio licensing to the children's code, from the impact of the TV licence fee on the commercial market to digital broadcasting. Yet on the proposed model for the Broadcasting Authority of Ireland - its form, powers, structure I have heard very little. I hope we still have time - given the public stakes involved - to have that debate and to see it framed not just as an internal broadcasting industry debate but as one which touches on the very tone of Irish public and civic life.

I - for one - would welcome that debate starting here today.