Introduction

This contribution is concerned with broadcasting policies at a time when broadcasting itself is considered by some as a thing of the past. Indeed, as a rich body of research from the mid-2000s onward describes (e.g., Katz & Scannell, 2009; Olsson & Spiegel, 2004; Turner & Tay, 2009), the past twenty years have seen a transformation of broadcasting from one-to-many, linear communication based in one analogue technological platform, with the control over the time and content of communication positioned at the level of the broadcaster rather than audiences, and organized by medium specific policies and legislation, to a growing diversity of linear and non-linear, mass and on-demand communication through a myriad of digital platforms and devices and thus to multiple reception contexts, and a shifting policy and legal framework. Digitization is generally identified as the key force behind this transition, creating convergence at the level of technology, business models, content and, indeed, policy.

As a result, since the mid-1990s, broadcasting, and especially broadcast television, has been pronounced dying (and even dead) by trend-watchers, industry people, and academics alike.

However, it appears that broadcasting is not so much dying or dead as being restructured and redefined in and for the digital age. This creates challenges for the industry as broadcasters need to reconsider their business models, programming, and platform development and as new players restructure the playing field, but also for policymakers that are confronted with the convergence of once distinct media and, in consequence, with new stakeholders and issues to consider. Taking a European and diachronic perspective, this contribution looks at current trends in broadcasting policymaking and specifically at the challenges, created by the evolving market for audio-visual content, that policymakers and various stakeholders are facing. The main focus will be on television—or rather audio-visual content—but radio too will be discussed.

Broadcasting Policy in the Age of Analogue Media

Broadcasting policy and regulation pre-convergence mainly developed at the national level and in a context whereby different media fell under different legal and policy regimes, reflective of the Zeitgeist in which they originated and dominated the media scene. At the time of its introduction, broadcasting was preceded as a mass medium by the printed press. The later, after a heavily controlled origin in the authoritarian era, was considered part and parcel of the democratization of Western societies. Not surprisingly, freedom of expression in many constitutions was written down as freedom of the press, which has remained a strong starting point for any press regulation up to this day (Czepek, Hellwig, & Novak, 2009). Press freedom always meant first and foremost freedom from interference from the state, restricting the press mainly to commercial and (some) social-profit initiatives. Guidelines and restrictions were mostly limited to self-regulation.

Telecommunication, for a long time, was not considered as part of media law and policy and its regulation, based in international agreements (e.g., frequencies), was technology rather than content based. For instance, telephony was not regulated with regards to what could be said on the telephone as it was not considered as part of mass (one-to-many) communication, to which media policies and regulation applied, but to interpersonal (one-to-one) communication of which regulation was limited with regards to the right to privacy, the latter mainly defined in relationship to the state (Bannister, 2005).

In contrast, after a brief experimental period in the early 1920s, the broadcast medium of radio was quickly recuperated by the state, following the growing belief in the visible hand of government and the social responsibility of the state toward the media, resulting in policymaking and regulation focusing mainly on content and commercial communication. This view extended to television as it started to spread post–World War II and it lasted well into the 1980s (Van den Bulck, 2001; Price, 1995).

The most well-known exponent of this view on the relationship between media and the state, of course, are the public service broadcasting institutions that characterized most European broadcasting scenes from the 1930s onward. Despite national differences, European public service broadcasting showed great similarities in structure, regulation, mission, and operation. Public service was organized in centralized institutions that maintained a government-supported position, based on a national broadcasting monopoly—legitimized by the scarcity of the means of distribution—and a license fee as not-to-be-competed-for source of income (compensating for a ban or limitations on advertising). As a mainstream institution, it had a distinct—and distinctly ideological—remit. It was given the threefold “Reithian” (after the BBC first director general Lord Reith) responsibility to inform, educate, and entertain, to be interpreted within the notion of universalism. This implied targeting a general audience as well as a variety of minority interests within the boundaries of quality and relevance. Public service broadcasting was to serve the entire nation—making open access an important goal—and to enhance the educational and cultural capital of its members. This led to high professional standards, including objectivity, diversity of opinions, and quality. The audience was thought of not in numbers (ratings) but in abstract terms and was talked about rather than talked to. Audience autonomy was limited to the ability to decide to (not) listen or watch programmes broadcast to them in a linear fashion (Scannell & Cardiff, 1991; Price, 1995; Van den Bulck, 2001; Bardoel & Lowe, 2007).

Notable exceptions were Luxemburg’s commercial RTL and the turn to a duopoly in the United Kingdom as early as 1954, yet overall the European broadcasting scene adhered to this framework. This is not to say that public service broadcasting institutions did not vary. The decentralized German or pillarized Dutch broadcasting systems differed structurally from more centralized institutions such as the British and Belgian public service broadcasters. The latter two, in turn, financially relied entirely on a license fee, while in the Netherlands, Germany, and Italy—among others—a mixed financing system based on license fee and advertising revenue for radio and/or television was installed. Finally, in small countries, public service broadcasting was confronted by foreign competition through natural overspill as well as an early (Austria in 1956, Switzerland and Belgium in the early 1960s) introduction and success of cable distribution. Yet, they all shared the core ideal of providing a public service to their audiences.

Broadcasting in a Late-20th-Century’s Media World of Plenty

The “liberalization” and marketization of broadcasting—an extension of a neo-liberal approach to society and of the belief in the invisible hand of government—from the 1980s onward ended the public service broadcasting monopolies and introduced a multichannel broadcasting environment. This transition was aided by a range of technological (cable and satellite), political (deregulation, Europeanization of legislation), economic (economies of scale and scope, concentration, commercialization, and trans-nationalization) and sociocultural (postmodern, assertive, hedonistic consumer-viewers) trends (cf. Blumler, 1992; Negrine & Papathanassopoulos, 1990; Siune & Truetzchler, 1992; Tracey, 1998). As a result, most national broadcasting scenes went through a rapid transition—for radio in the early 1980s, for television in the late 1980s and early 1990s—from a few channels, often restricted to the public monopoly services, to a wide and varied range of public and private, broad and narrowcasting channels available to audiences through new means of distribution (Hoffmann-Riem, 1996; Humphreys, 1996; Hallin & Mancini, 2004).

Although presented at the time as the deregulation of broadcasting, policies in fact resulted in a reregulation of the broadcasting market (cf. Dyson & Humphreys, 1989; Siune & Truetzchler, 1992). In most European countries television remained subjected to much regulation with regards to content and commercial communication. Probably the most clear example of this liberalization combined with reregulation was the policymaking and regulation at the European Union (EU) level. Originally not part of its remit, in the 1980s the EU started taking an active interest in media as a new, potentially successful, economic market. Its Television Without Frontiers (TWF) Directive (1989) aimed at a “single market” for broadcasting, especially television and pushed its member states to end the public service monopolies and to open up national borders to foreign channels. Yet, the TWF Directive also provided a wide range of rules and instructions regarding content regulation (including quota) and the limits of commercial communication, applying to commercial as well as public service channels, be it to different degrees according to nationally specific policies (cf. Biltereyst & Pauwels, 2007; Wheeler, 2004).

The relative nature of the “invisible hand of government” further transpired from policies with regards to public service broadcasting. Particularly in the early 1990s, the future of public service looked bleak, not in the least because many institutions were abandoned by their governments flirting with neo-liberalism. The “sell off” (or privatization) of TF1 in the middle of the 1990s is probably the most outspoken example hereof, but even the BBC, the “mother” of public service broadcasting, in this period for the first time was “threatened” with the withdrawal of its license fee. However, by the end of the 1990s, the worst of the storm was over. Most public service institutions survived in some shape or the other and both the EU and national governments (re)affirmed their long-term, if not unconditional, commitment (Donders & Pauwels, 2010). Government and public service broadcasters tried to find new interpretations for the latter’s charter, structure, organization, mission, and identity, fit to deal with the changing media context. Policy discussion typically played out at the intersection between a market failure model that, from a neoliberal perspective, reduces the role of public service broadcasting to providing what the market does not, and an holistic model, a continued belief in the relevance of a public service active in all areas of broadcasting. Although outcomes differed across countries, overall public service broadcasting was reshaped in the direction of a retreat of politics and the introduction of a certain economic or corporate logic. Cultural-educational principles were replaced by an orientation toward (varying levels of) competition, audience maximization, clearly defined channel identity and a view of the audience as a disparate group of individual consumers (cf. Blumler, 1992; McQuail & Siune, 1998).

The opening up of the broadcasting market to commercial players brought new issues for policymakers to deal with, most importantly the trend toward transnational ownership concentration, affecting a free market. Because of its transnational nature, ownership concentration has been hard to capture by national governments, which, in addition, have been charmed by stakeholders into staying away from very strict antitrust policies (Meier, 2007). The EU antitrust policies, in turn, often clashed and clash with its free market ideals (Donders, Loysen, & Pauwels, 2014)

Digitization, Convergence and Broadcasting in the 21st Century

While the 1980s saw the end of public service broadcasting monopolies, the start of the 21st century seemed to bring the end of broadcasting altogether. The key term, here, is convergence, resulting from digitization, which has shaken up considerably the old media regimes. Clear distinctions between media and between mass and interpersonal communication become obsolete, as convergence questions old boundaries between once distinct media types and markets. It opens up traditional media markets to new players, most notably those from the once distinct sector of telecommunications—today widened to information and communication technologies (ICT)—and their spin offs, but many others as well (d’Haenens and Brink, 2001; Hendriks, 1995). Similarly, convergence and especially the introduction of web 2.0 social media overturned the distinction between “senders” and “receivers” of mass media messages as audiences become not just consumers but active producers—the so-called “prosumers.” This has led to a blurring of the boundaries between the public and the private.

In broadcasting too, digitization and convergence have triggered significant changes that go in various directions (Buonanno, 2000; Guerrieri, Iapadre, & Koopmann, 2005). For one, it allows broadcasters to move more easily into other media areas than broadcasting as is demonstrated by the extensive online presence of both commercial and public service broadcasters. Often this develops at the chagrin of stakeholders in these other sectors. Digitization further provides new options for production and distribution of audio(-visual) content. As a result, the traditional process of production and distribution, the valorization of this work in the different phases hereof (the so-called value change) and the accompanying distribution of costs and revenues (the business model) have been and are being subjected to considerable changes.

On the one hand, the exploration of new technologies and the innovative use of emerging cross-media positions provide new opportunities for the economic growth of the sector and for the offering of better products to new audiences. In television, for instance, “free-to-air,” that is, traditional linear broadcasting, has stopped being the only channel of distribution as “video-on-demand” (VoD), pay television, “over-the-top content”-services (OTT), and other platforms and services provide opportunities to bring products to new and different markets. This allows for a diversification across several valorization “windows,” thus extending the lifespan of audio-visual content. On the other hand, these opportunities pose certain threats. New forms of digital production and digital and online distribution impact on the existing value chain, on the relationships between different players in the market formerly identified as broadcasting, and on their financing and business models. An example can illustrate this. Flemish commercial Channel VTM stopped broadcasting the successful shows in the format of a telenovela, not because of a lack of viewers but because part of the target audience watched the program in time shift mode, a functionality provided by distributors. These time shift viewers were not taken into account when calculating the price for the advertising slots around the program as they were assumed to be skipping the ads. The loss of profit on the revenue side (broadcasters) following a functionality provided by a third party (distributors) meant that producing this type of content was no longer profitable. Relationships between the various stakeholders in the broadcasting industry are thus shaken up. For instance, the arrival in several European media markets of Netflix, a U.S. OTT platform, introduces a new competitor for traditional broadcasters and distributors but provides opportunities for the independent audio-visual production companies that no longer depend solely on broadcasters for production commissions.

Policymaking for Broadcasting in the Age of Convergence

As a result, convergence is not just a technological and economic reality but poses issues for policy as stakeholders turn to governments to adjust legislation to the new situation. In fact, a veritable “discourse of convergence” has permeated media and information and communication technologies (ICT) policymaking in general and broadcasting policies in particular (Sampson & Lugo, 2003). In these policy debates, two main positions can be identified. Optimists, from a technological determinist position, promote convergence and its innovative possibilities, usually with economic growth as the ultimate goal. Digitization is seen to open up new business opportunities, to provide an abundance of services, and to lower considerably market entry (Armstrong & Weeds, 2007; Elstein, Cox, Donoghue, Graham, & Metzger, 2004). This is often accompanied by a technological nationalism; policy stakeholders promoting convergence to improve economic investments and political prestige (Van den Bulck, 2008). Convergence also features positively in a discourse of technological democracy as an engine for increased autonomy of, and new possibilities for, the citizen-user (e.g., Iosifidis, 2006). This argument is embraced both by stakeholders attempting to obtain a dominant position in new and potentially lucrative markets, and by the cultural and minority sector who believe new media can fulfil “old” ambitions regarding alternative media for voices not heard elsewhere (Cammaerts & Carpentier, 2007). Optimists by and large argue that, due to the explosion of services, devices, and platforms, regulation has become obsolete or, alternatively, impossible to impose and that, more than ever, the market will take care of itself. This view is reflected in so many policy debates and outcomes that Freedman (2005, p. 6) refers to “the hegemony of market-led approaches to the provision of goods and services.”

However, there are other voices. Pessimists, from an equally determinist position, see convergence as a threat to existing relationships and to the carefully established equilibrium in specific media markets, undermining the once stable value chains and thus the viability of existing actors and positions. Convergence, together with globalization, are seen by pessimists as further enhancing the power of transnational multimedia groups, undermining existing positions and future developments of local players that provide content and opportunities for local producers. Convergence thus hampers the social role of media, made explicit in public service broadcasting (Sampson & Lugo, 2003), but that role is also considered to be served by healthy local media markets. Convergence is therefore believed ultimately to push the homogenization and commercialization of culture (De Bens, 2004). Hence, they advocate the need for more regulatory intervention or reregulation in spite of issues of enforceability (Van den Bulck, 2008).

Pessimists suggest that convergence makes national or regional media policy more relevant than ever. At the same time, convergence and globalization make media policy increasingly complex. First, they have opened up traditional media markets to new players, most notably those from the once distinct telecommunications sector and its spin-offs. Convergence also results in new configurations between old and new players. Second, more than ever, media policymaking is not the reserve of national governments, as power has been eroded by the growth of multilevel governance—that is, policymaking responsibilities increasingly being shared by various policy actors at the regional, national, and inter- or supranational levels. European governments have been faced with the growing involvement of the European Union (EU), and the impact of the European Commission (EC) and European Court in media and ICT policy making (Donders, Loysen, & Pauwels, 2014). Indeed, the EU has been instrumental in pushing convergence ever since the EC liberalized the use of cable networks and then point-to-point distribution systems (Østergaard, 1998). It has also taken the lead in providing a framework for the new converged broadcasting landscape with the adjustment of the Television Without Frontiers Directive to include not just traditional linear broadcasting but other, non-linear and on-demand services: the 2010 Audio-Visual Media Services Directive (for role of EU see, for example, Levy, 1999; Harcourt, 2005; Harrison & Woods, 2007; Michalis, 2007).

This has led some to a certain defeatism regarding the (im)possibility of regulating convergence—regulation may still be valuable to ensure socially agreed values, but it has become obsolete due to a lack of enforceability. At the same time, there are indications that national and regional governments remain powerful actors in the media policy arena, particularly in sectors such as broadcasting (Sinclair, 2004). The enormous diversity of media markets in Europe further indicates a level of path dependency: choices made in the past impact the present and continue to do so in the future (Brevini, 2013). For one, small EU member states have adopted various models of “controlled liberalization,” opening up their media markets but with due protection for domestic players in the interests of preserving national identities, culture, and language (Lowe, Berg, & Nissen, 2011). In policy processes, optimists and pessimists can be seen to fight it out while trying to find solutions for various policy issues. The result is that today we see certain new forms of regulation and policymaking with regards to broadcasting while old regulatory regimes require renewed attention

Adjusting the Old to the New: From Public Service Broadcasting to Public Service Media

Policies Guiding New Developments

The impact of convergence on broadcasting has not just pushed governments to reconsider long-standing policy and regulatory regimes, they are also challenged to develop novel policies to deal with “new ways of co-existing in the digital reality, a natural need for new business models and new ways of structuring cooperative relationships, funding models, distribution platforms and marketing strategies” (Filmby Aarhus, 2008, p. 4). Eager to maximize the economic potential of these new developments, the European Union introduced a green paper and consultation round titled “Preparing for a Fully Converged Audiovisual World.” The aim is to evaluate the need to hold on to or do away with certain agreements and legal frameworks regarding “release windows” at a time when users can and want to have much faster access to audio-visual content.

Other policies have focused more on minimizing threats that come with the reconfiguration of the audio-visual media scene. A case in point is the Flemish signal integrity regulation (Van den Bulck & Donders, 2014b). The case started with a joined open letter of complaint in 2010 from the main—and in other regards competing—Flemish broadcasters—public service broadcaster VRT, Flemish-owned commercial VMMa (now Medialaan), and (then) Flemish/Finnish owned SBS Belgium, which together represent an 80% audience share in the Flemish television market—to the dominant cable operator Telenet, a subsidiary of Liberty Global that has an 80% share in the Flemish television distribution market. Telenet provoked broadcasters by offering for free a range of additional consumer services that allow time shifting, ad-skipping, and program recording, while maintaining an unyielding attitude in negotiations with the broadcasters. The Belgian telecommunications incumbent Belgacom provides similar services, but created less friction with broadcasters as it holds only a 15% share in the market for digital television distribution and is considered to be a more flexible player (Evens & Donders, 2013).

Broadcasters claimed that they are the owners of their signals and that this “signal integrity claim” in fact consists of two arguments: “content integrity” and “economic integrity.” Content integrity refers to the demand of broadcasters that providers, in the distribution of services, must not harm the integrity of their signal’s content, an unacceptable infringement on the ongoing creative process that is a television channel. Moreover, providers can potentially interfere with broadcasters’ compliance with legal obligations per content regulation, regarding minors or commercial communication in the case of commercial broadcasters, and the public service remit in the case of public broadcasters. Economic integrity refers primarily to the financial well-being of broadcasters. Especially commercial players see their business model threatened by new digital services, especially those allowing ad-skipping, which means bypassing the advertisers who finance the content, and, in turn, do not want to pay for audiences that skip their messages. The success of Telenet’s digital packages, and of the ad-skipping they allow, undermines broadcasters revenues, thus affecting content, as illustrated with the example above of VTM’s telenovelas. At the same time, Telenet revenues rose by 350%, largely generated from broadcasters’ content, but entirely passed on as dividend to Liberty Global. As owner of the signal, broadcasters want autonomy over decisions about the economic exploitation beyond free-to-air delivery of content.

Both the content and economic aspects of the signal integrity claim were refuted by the two main service providers, Telenet and Belgacom, claiming that distributors cannot be held accountable for changing television consumption behavior, that ad-skipping in Flanders (at the time) was still quite rare, and that broadcasters were averse to innovation. After a lengthy political debate, in 2013 a legislative proposal was accepted. The amended Flemish media decree states that distribution companies have to transmit a television broadcast signal without interruptions or alterations (Article 180, §1) and that functionalities that contravene this require prior consent from the concerned broadcasters (Article 180, §2). In the absence of prior consent, the Flemish Media Regulator must arrange a three-month reconciliation procedure after which it provides nonbinding advice. Services that breach content integrity, that is, go against the editorial independence, autonomy, and responsibility of broadcasters, can be refused outright by broadcasters (Article 180, §3). In return, any remuneration that broadcasters receive for allowing functionalities must be invested in the production of Flemish content (Article 180, §2).

The concerns voiced by Flemish broadcasters, and the legal action resulting from it, has been noticed elsewhere as the handling of conflicts between broadcasters and distributors in The Netherlands, the United Kingdom, and Canada suggest. The Netherlands adopted a legislative proposal concerning the relation between distribution and broadcasting in 2013, but this is not as far-reaching as the Flemish decree (Evens & Donders, 2013). The European Commission, in turn, has taken over some of the underlying principles in its green paper on connected television but, at the same time, has engaged in an informal investigation of the admissibility of the signal integrity principle under EU internal market law. Other issues with this legislation arise such as the fact that it enforces tougher rules on domestic distributors (Telenet and Belgacom) than on global players such as Google and Apple.

Conclusion

Just as broadcasting is not so much dead or dying as being restructured and redefined in and for the digital—and what some call post-broadcast—age, so is policymaking related to broadcasting being revised and reinvented to fit the new, post-broadcast era. Furthermore, as the signal integrity case shows, alliances between stakeholders in forging specific policy outcomes are more than ever temporary and forever shifting, according to the issue at hand. The complexity of the issues that arise and challenges policymakers also promote a growing role for industry experts. The very technical nature of the issue, inherent in the rapid development of technological convergence, means that policy makers often have a hard time grasping the issue, thus creating a space for experts from the industry, not only in explaining technical and economic issues but, more importantly, in suggesting solutions. This results in a further shifting in the power balance between the different actors in the policy process. The story is unfinished as digitization and convergence continue to redefine the industry, the stakes, and stakeholders involved and therefore the policies and regulatory frameworks.

Primary Sources

Data collection in policy analysis typically is based on two complementary methodological tools involving written and oral sources: document analysis and elite in-depth interviews. Primary and secondary sources in media policy document analysis typically include published and internal policy documents and white and green papers, annual reports and other documents of key informants (government, key media institutions, advisory committees, etc.), and communications from stakeholders on relevant fora. Such document analysis is best complemented by in-depth interviews with privileged witnesses who have been part of or have special insight into the policymaking process, and who can help in the reconstruction of meaning, beliefs, or patterns of action.