What, apart from the Government itself, is the most powerful public body in Ireland? Arguably at least, it is the Broadcasting Commission of Ireland. It licenses 54 independent radio and TV services. Its decisions are relatively unaccountable, writes Fintan O'Toole.
Both the Oireachtas Joint Committee on Broadcasting and an independent report for the Department of Communications have in recent years expressed concerns about the transparency of its decision-making processes.
Those decisions, moreover, are subject to no appeal except to the courts, and they, in turn have taken the view that so long as the BCI stays within the law and acts in good faith, its decisions are its own business. The BCI is likely to get even more powerful: Government policy is to establish a single Broadcasting Authority of Ireland, which would effectively give a super-sized BCI control over RTÉ as well.
The BCI is run by decent, public-spirited people who make decisions in good faith. It is, however, shaped by a Government-led belief that it should take, to quote the hideous jargon, a "facilitory approach . . . leading to a light touch, broad principled operation".
It is expected, in plainer English, to be nice to the companies it regulates. It is expected to fulfil two potentially contradictory functions: to regulate the broadcasting industry on the one hand and to promote it on the other. That the helpfulness can get in the way of the regulation is clear from a case that is currently before the Supreme Court in which Zed FM, a consortium which failed in a bid for an alternative rock radio licence, is challenging the awarding of that licence to Phantom FM.
At one level, the outcome of this case (which the High Court has previously decided in favour of the BCI on the grounds that it acted in good faith) is of relatively little concern. Two groups of wealthy people are fighting for control of a potentially lucrative asset - who cares? But leaving aside all the rival claims, what is of real public interest is the BCI's own account of the award of the licence and the way it illustrates what a "light touch" means in practice.
In this case, it has meant a willingness to forgive and forget a history of defying regulation.
Phantom FM had functioned as a pirate radio station for five years before it applied for the alternative rock licence in 2003. Far from being a disadvantage to its application, however, this seems to have been a help. The BCI has stated that its policy is to allow pirates to apply for licences so as to "encourage the cessation of illegal activity and to encourage people into the statutory regime". The implication seems to be that if you flout the law successfully, the BCI acquires an interest in encouraging you to go legit by granting you a licence.
Phantom had previously tested the BCI's patience by twice going back on air as a pirate after it had failed to secure a licence, but the BCI proved its patience to be almost infinite, and allowed it to keep applying. In its application for the licence under dispute, moreover, Phantom put forward its illegal activities as a big argument in its favour, claiming long experience and brand recognition.
When the new licence came up, Phantom went off air again. The BCI, however, allowed the station back on air by means of so-called Special Event licences. These are normally granted in relation to short-term events like festivals - Phantom was given a licence without specifying any such event. The law is quite specific in stating that the recipient of these licences can broadcast for "no more than 30 days in any given 12-month period".
In fact, Phantom got licences for 60 days within a 12-month period. The law was circumvented by applying for the licences under the names of two different companies. The BCI, in the words of Mr Justice O'Sullivan's High Court ruling, was "aware that in effect the same people were getting the benefit of two licences and that this was contrary to the spirit if not the letter of the (Broadcasting) Act". Phantom was indulged even further. A station operating under a Special Events licence cannot accept ads - Phantom did so.
Phantom was supposed to submit sponsorship messages to the BCI for approval. In one four-day period monitored by the BCI, Phantom carried messages from five sponsors, none of which had been submitted for approval. The station was supposed to have libel insurance in order to indemnify the BCI. It actually broadcast for a period without libel insurance, and when it got the insurance, it covered only one of the two companies that held the licences.
This is what a "light touch" actually means: you can get a licence even if you've flouted the law by broadcasting illegally and even if you have a record of being rather less than punctilious about previous licences. If this is what happens before you get your licence, you might reasonably assume that the BCI will not be too hard on you after you've got it. Is it any wonder that the companies it supposedly rules have so little fear of the BCI, the regulator that likes to say "yes".