Chapter Three_phd_terry Flew

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Chapter Three Broadcast Media Policy, Broadcast Property and the ‘Social Contract’

This chapter draws upon theories of public policy and regulation in order to understand Australian broadcast media as operating within a policy system, with a distinctive political economy, institutional framework, policy culture and policy discourse. The concepts of policy communities and policy discourse are developed in this chapter, as ways of understanding the origins, scope and limits of policy activism. It is argued that the nature of regulatory authority in Australian broadcasting has revolved around an implicit ‘social contract’ between commercial broadcasters, regulatory agencies, and activist and public interest groups, whereby industry protection and the safeguarding of broadcast property has, over time, been exchanged for a commitment to ‘affirmative’ programming initiatives, particularly in the areas of Australian content and children’s programming.

The concept of policy activism, or activism in the policy process, draws attention to the fluidity of interactions between policy ‘insiders’ and ‘outsiders’, as well as the ways in which dominant policy discourses and the nature of policy

108 communities have set limits to structural change through such interventions. It is apparent, to take one example, that policy activism has been more possible in Australia in policy areas concerning media content, where regulatory agencies have had significant autonomy from government, than those in the area of media ownership, which have been more strongly driven by the relevant Minister and by Cabinet. It has also perhaps been the case that implicit support for the maintenance of oligopolistic media markets may underpin activist approaches to content regulation, presenting new challenges when there is a dynamic of cumulative structural, technological and regulatory change.

Broadcast Media, Regulation and the State

Policy institutions have a central role in the development of media as cultural forms. They regulate the ownership, production and distribution of masscirculation media, and seek to manage cultural practices in order to direct media conduct towards particular goals such as those associated with citizenship. Regulation of the media of communication is, as James Michael has observed, ‘as old as blood feuds over insults, and … as classic an issue as deciding whose turn it is to use the talking drum or the ram’s horn’ (Michael 1990: 40). The media of mass communication generate particular concerns for regulation because, as James Donald notes:

109 The modern media produce and police publics, and modes of behaviour appropriate to public participation, and in that sense themselves constitute a technique of regulation. From this point of view, most discussions about media regulation appear to be concerned with the second order regulation of the conditions necessary for the effective creation and maintenance of publics and citizens through the media. (Donald 1998: 221)

Broadcast media, as the pre-eminent mass medium of communications in the twentieth century, have attracted particularly extensive forms of governmental regulation. Reasons for such extensive regulation have included: concerns about their potential impact on children and other ‘vulnerable’ individuals; the ability to use such media for citizen-formation and the development of a national cultural identity; and the implied right of public participation and involvement associated with the distinctive nature of broadcast spectrum as both a common cultural resource and a particular form of property (cf. Bennett 1982). There has also been significant regulation of broadcasting in order to achieve what Philip Schlesinger terms ‘communicative boundary maintenance’ (Schlesinger 1991b: 162), which has included local content regulations, controls over foreign ownership of media, and the sponsoring of both public broadcasters and domestic audiovisual production in order to develop national culture and cultural diversity.

In the Australian context, media policy has been directed as much towards the creation of national cultural infrastructures that can be subsequently protected

110 as towards the protection of existing cultural industries and practices. This is indicative of a broadcast media structure that, in terms of Anthony Smith’s (1989) three approaches to guaranteeing the public interest in broadcasting (discussed in Chapter One), is based upon a dual broadcasting system, with a dominant commercial sector and a state-funded national broadcaster. In a country that is Anglophone, relatively affluent, has strong cultural ties to the United States and Britain, and has a dominant commercial sector, support for distinctive national cultural forms and institutions swims against the tide of dominant market logics to some degree, and thus requires significant state subvention.

Compared with other forms of media, such as print, radio and film, broadcast television has been subject to relatively high levels of government intervention. One reason for this is constitutional. Section 51 (v) of the Constitution of Australia gives the Commonwealth powers over ‘postal, telegraphic, telephonic and other like services’, which has been interpreted as giving the federal government the power to regulate broadcast media, whereas powers relating to print media reside with the states. Government intervention in the commercial broadcast television marketplace in Australia has, since 1956, been observed in four areas, as shown in Table 3.1:

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Table 3.1 Government Regulation of Commercial Broadcasting AREA OF GOVERNMENT REGULATION Control of Entry

Ownership and Control

Content

Program Standards

POLICY GOALS

POLICY INSTRUMENTS

Planned development of broadcasting services Ensuring station viability and system stability Limiting concentration of media power Australian control of broadcasting services Responsiveness to local communities Promoting Australian national culture Promoting local program production Providing opportunities for local producers Catering to specialist audiences (eg. children) Ensuring fair, accurate and responsible coverage of matters of public interest Respecting community standards Protection of children from harmful material

Licensing of commercial broadcasters Limits on station numbers Limits on concentration of ownership Limits on cross-media ownership Limits on foreign ownership Local ownership requirements Australian content standards Children’s programming standards Quota requirements for program types (eg. local drama, documentary) Program classification standards Advertising standards Time restrictions on program content Requirements for news and current affairs programs

While such regulation of commercial broadcast media appears extensive, it must again be noted that, in contrast to publicly funded cultural institutions such as public museums or educational institutions, the capacity of policy institutions to ‘guide the possibility of conduct’ of broadcast media towards pro-social ends has, in practice, always been significantly constrained by two factors. One has been the private ownership of broadcast media institutions, and the circumscribed capacity of the state to control the uses of private property. The second has been

112 the cross-border distributive capabilities of broadcast media as cultural technologies, and their tendencies to ‘uncouple’ the ‘fit’ between polity and culture within a national space that has frequently been the goal of governmental regulation of cultural institutions and textual forms.

Australian Broadcast Media as a Policy System

Policies toward broadcast media in Australia occur within a wider policy system. The concept of a policy system, as developed by Considine, implies ‘some level of concerted action across a known field’, as well as ‘groups of actors engaged in continuing, interdependent activity’ (Considine 1994: 22). Participation in such a policy system ‘does not imply high levels of agreement about what is being done, nor great and detailed knowledge on the part of participants’. Rather, the minimum requirement for continuing participation on the part of actors is some level of shared resource dependency, or ‘their shared reliance on the set of services which they system provides’ (Considine 1994: 22).

Conceiving of broadcast media as part of a policy system provides a useful mid-level approach to understanding the centrality of policy to the development of the Australian broadcast media system, while allowing policy processes to be linked to wider historical, social and political relations and developments. It allows for detailed empirical analysis of what Miller and Rose (1992) refer to as the governmental technologies of state administration as well as their underlying

113 political rationalities. At the same time, it allows policy to be viewed not just as a series of decisions and programs, but as ‘the continuing work done by groups of policy actors who use available public institutions to articulate and express the things they value’ (Considine 1994: 4). The concept of a policy settlement, outlined in Chapter One, aims to combine these distinctive elements of the Australian broadcast media policy system.

According to Mark Considine, a policy system can be seen as having four related elements: political economy, policy institutions, policy culture, and policy actors, as shown in Figure 3.1

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Figure 3.1 Elements of a Policy System

Policy Institutions

Political Economy

Policy Culture

Policy Actors

Source: Considine 1994: 9.

The first two elements of this policy system - political economy and policy institutions - are held to be primarily related to the material dimension of policy, or the allocation of social resources, while policy culture is primarily associated with the intellectual dimension, or with ideas, values and discourses. A policy actor is defined by the terms developed by Hindess (1987), and discussed in Chapter One, as an individual or collective agent that has reasons for and interests in taking action, and is capable of assessing situations and reaching decisions about appropriate forms of action. Such forms of agency will primarily take an

115 institutional form, but it is important to distinguish those agents - primarily nongovernmental - that participate in policy processes on the basis of their interests, and those - primarily governmental - policy institutions whose role is to assess and adjudicate on the claims of competing policy agents and interest claims.

Political Economy of Policy Systems

The political economy of a policy system can be defined at two levels. First, political economy can be defined as the institutional and structural forms through which social collaboration is organised in order to meet the material, cultural and symbolic needs of a society. A second level of definition, which follows from the first, is the particular configuration of social roles and relationships through which the production, distribution and consumption of resources to meet such material, cultural and symbolic needs are organised (Mosco 1995; Garnham 1997). Considine proposes that four elements need to be examined in any political economy of policy:

1. Provision: relations between producers and consumers; 2. Association: links within each producer/provider and consumer/user group; 3. Intervention: the roles of public agencies; 4. Organisation: prevailing techniques and forms to organise relations between producers, consumers and government.

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In each of these areas, we can observe distinctive elements of commercial free-to-air broadcast television as a policy system. First, in the area of provision, free-to-air television programming has possessed strong ‘public good’ elements, as well as being a private commodity. The ‘public good’ aspects of the commodity include:

1. The broadcasting signal not being destroyed in an individual act of consumption, so consumption by one person does not affect the access of others (non-rivalry); 2. The broadcasting signal being simultaneously sent to all sites of consumption capable of picking up the signal (non-excludability); 3. The near-zero marginal costs of both consumption and distribution; 4. The costs of production not being directly related to the number of viewers.

All of these factors point to a situation where the price of individual broadcasting signals should be zero, since the marginal cost of sending them to each household is virtually zero. This is the basis of the provision of television programs on a free-to-air basis (Owen et al., 1974; Collins et al., 1988; Picard, 1989). In an environment where consumers are unlikely to pay directly for the provision of television programming, two broad options for its financing present themselves: public financing through the taxation system; and revenue acquired through the

117 sale of advertising time. There is thus an homology between the cultural and the economic rationales for the existence of dual-system broadcasting, with a taxpayer-funded public sector dedicated to ‘specialist’ or ‘minority’ programming, and an advertiser-financed commercial sector committed to ‘majority’ programming.

A second feature of the political economy of the broadcast media sector is that

it

possesses

strong

tendencies

towards

the

organisation

of

producer/distributor interests, and very weak tendencies towards the organisation of consumer/user interests. Commercial free-to-air broadcasting has been characterised by oligopolistic market structures, where a small number of large organisations operate within a given broadcasting market, and the barriers to entry for new competitors are high. Reasons for the prevalence of oligopoly in commercial free-to-air broadcasting include: restrictions upon access to the electromagnetic spectrum for broadcasting signals; government licensing procedures, which regulate entry into the broadcasting industry; and the existence of economies of scale and scope, on both the cost side (simultaneous transmission into many markets) and revenue side (ability to offer advertisers the largest possible audience), with benefits accruing to the largest networks in both production and distribution (Litman 1990).

Since the cost of reaching each additional audience member (actual or potential) is virtually zero, the stations which reach the largest possible audience

118 will, all else being equal, be the most profitable. This in turn has led to the commercial television industry tending to aim for the largest possible audience at any time by broadcasting programs which are ‘excessively similar’ to those being screened by their competitors (Neuman 1991). While such an arrangement does not constitute formal collusion, it implies a similarity of conduct and performance among competitors. By contrast, the direct consumers of free-to-air broadcast television are almost infinitely dispersed, and the likelihood of them exercising collective agency in broadcast markets is virtually zero, as the costs of ‘exit’ or switching from one broadcasting service to another, or from television viewing to another social activity are virtually zero. In a structural environment characterised by significant concentration of broadcast television sellers and almost total dispersal of buyers, and with high barriers to entry, neo-classical industry economics predicts minimal product differentiation, low pressures to cost minimisation and high levels of network profitability (Flew 1993).

An important consequence of these features of the broadcasting market is that, due to the high social, political and cultural significance attached to broadcast media, and the low level of market power and capacity for intervention on the part of its audiences, governments will often actively intervene on behalf of a wider community or public interest, or in the interests of particular sections of the community such as children. Further, governments may also feel inclined to ‘rebalance’ the political marketplace in which policy processes between broadcast media networks and other participants are negotiated, rather than simply acting as

119 the passive arbiter of competing interests. They may do this by actively supporting the capacity of policy actors to remain involved, such as those representing children, ethnic minorities, local producers or the ‘public interest’. It is also important to note that governments intervene in the overall Australian broadcasting system in two principal ways: they regulate the commercial sector and they fund public broadcasters such as the ABC and the SBS. This means that some government policy objectives, such as achieving cultural diversity in programming, coverage of events of local significance, educational programming, and providing an Australian perspective on international events, have been primarily the responsibility of public broadcasters rather than regulatory goals towards the commercial sector.

Policy Institutions and Policy Culture

Policy institutions can be understood at two levels. First, they exist as formal structures for making and enforcing rules in a particular policy domain. In the field of broadcasting in Australia, regulation and policy-making has been a federal government responsibility, derived from the Commonwealth’s powers under Section 51(v) of the Constitution. Institutional responsibility has typically been divided between a Department responsible for technical aspects of broadcasting and communication and directly accountable to the relevant Minister, and a regulatory authority whose members are appointed by the Minister, but which possesses an ‘arm’s length’ relationship to the government of the day. Second,

120 policy institutions can be understood as ‘informal rules and procedures that structure conduct’ (Scott 1995: 26).

It was observed in Chapter One that a

condition of existence for social institutions is shared social and cognitive conventions among a group, and that institutions in turn confer identities upon individuals. While sociological work on institutions has tended to focus on nongovernment forms such as corporations, trade unions and professional associations, the forms of such institutions are in practice shaped by the formal policy and regulatory institutions of government. One reason for this mutually reinforcing relationship is that the state, both as actor and institutional structure, tends to create particular governance regimes, notably through the capacity to create, maintain, enforce and transform arrangements concerning property rights (Campbell and Lindberg 1990).

Policy institutions maintain themselves through the development of policy cultures. Considine defines policy cultures as ‘complex structures for political learning and memory’, which exist within policy systems and are ‘made up of characteristic values, preferences and habits of interaction’ (Considine 1994: 47). Considine proposes that these can be traced through the existence of shared sets of values, assumptions, categories, customs and conventions, languages and forms of naming. Christina Spurgeon (1997) has provided a detailed account of the policy

culture

that

has

prevailed

in

institutions

shaping

Australian

communications policy in the 1980s and 1990s. Spurgeon argues that dominant communications policy discourses in this period combined an understanding of

121 communications-as-transmission with a strong belief in the promises for the future predicted by the advocates of digital technology. As a result, Spurgeon argues that key policy agents divided the policy problems of Australian communications into ‘first-order’ problems, concerning the promotion of new markets and digital technologies, and ‘second-order’ problems, such as information quality, equitable access and social regulation of communications power. The consequence has been the development of a dichotomy between ‘technical’ and ‘social’ problems, with resolution of the former commonly presented as the condition for resolving the latter.

Policy Communities and Policy Discourse

The concept of policy communities, or policy networks, describes ‘the informal and semi-formal linkages between individuals and groups in the same policy system’ (Considine 1994: 103), and the resulting ‘dependency relationships that emerge between both organisations and individuals who are in frequent contact with one another in particular policy areas’ (Atkinson and Coleman 1992: 157). A policy community tends to be a fairly small group of policy agents, both within and outside of government, who are able to influence policy outcomes through their ability to establish the ‘rules of the game’ surrounding a policy domain, in terms of control over access to resources, and through a shared set of values and beliefs on a policy issue which set the agenda for debate on that issue. Stability in a policy community is generated both by the ability to sustain a value consensus,

122 and the ability to generate outcomes that provide additional resources for each member of that policy community (Smith 1993). Broadcasting is an area whose political economy makes it particularly susceptible to such developments, since it has been characterised by a small number of producer/distributor interests with significant economic power, high barriers to entry for new competitors, the cultural significance of the medium, the capacity for political influence on the part of its controllers, and the highly fragmented nature of its consumers/users.

The concept of policy discourse refers to the ways in which the structuring of language within a policy system shapes the behaviour of actors by constructing what Michael Shapiro describes as ‘not only the horizons of possible speech but also the horizons of possible action’ (Shapiro 1981: 130). Drawing upon Foucault’s notion of a discursive formation, Shapiro has applied discourse analysis to political theory, observing how language is ‘constituitive of political phenomena rather than merely about political phenomena’ (Shapiro 1981: 5), and that the content of political language is embedded in the social and institutional relations within which it is used.

Policy communities and policy discourses interact with one another. In his history of US broadcasting policy, Thomas Streeter (1996) has used the concept of interpretive communities to provide a basis for understanding how dominant meanings are formed through interaction among policy agents, which in turn constitute the interpretative basis for understanding and responding to

123 developments in the policy field. Noting that policy-making is not simply a goaloriented activity but also constitutes a mode of thought, he argues that the key to understanding which arguments prevail in broadcast media policy lies not in the prohibition of certain types of argument, but in recognition of the discursive rules which ‘determine whether one’s arguments make sense to others, and what sense others make of them’ (Streeter 1996: 116). This interpretative community possesses a range of forms of discourse (eg. those of academics, policy-makers and lobbyists), political positions within the community (eg. over the virtues of competitive markets, or the nature and significance of the ‘public interest’ as a guiding concept for regulation), and can shift in its dominant positions (eg. attitudes towards new technologies, or barriers to entry for new competitors) over time. What remains are a series of discursive rules which stabilise meanings over time for an otherwise diverse set of policy institutions and agents. Such rules are, for ‘insiders’ in the policy community, ‘like water to fish; so much a part of the environment as to be invisible’ (Streeter 1996: 148).

One of the most important discursive rules is the distinction made between ‘politics’ and ‘policy’. Policy-making is defined as ‘a neutral, calm, reasoned, carefully moderated process’, in contrast to the ‘contaminated’ domain of politics. Such a contrast leads to leading to ‘complaints about the “interference” of political concerns with policy making’, and to calls for ‘replacing a chaotic “political” process with a rational “policy” process’ (Streeter 1996: 125). Another discursive rule is the importance attached to expertise. Expertise provides the

124 dividing line that distinguishes the ‘subjective’ arguments of broadcasters, lobbyists and other ‘hired guns’, from the ‘objective’ positions of regulators, policy analysts and academic contributors to the policy process. It also distinguishes the policy ‘insiders’ from the ‘outsiders’, most notably critics of the economic structure of commercial broadcasting. The idea that discussion of underlying systemic structures is ‘off limits’ to broadcast media policy debates provides a central unspoken discursive rule, allowing broadcast media policy to remain, as Robert McChesney describes it, ‘a realm for experts, not for “politics” in the broad sense of governance in a democratic society’ (McChesney 1993: 128).

Policy Activism

Policy activism refers to the capacity of motivated policy actors to transform policy systems and policy outcomes through active and strategic engagement with policy processes. It is perhaps worth distinguishing three forms of policy activism. First, there are policy entrepreneurs, or those within government institutions, who seek to develop and implement innovative approaches to the creation, design and implementation of policies (Roberts and King 1991). Such policy entrepreneurship may arise from the failure of existing approaches, new policy demands with a change of government, or new requirements for a policy agency (eg. that it become more self-reliant in funding). In broadcasting in the United States, such ‘policy entrepreneurs’ emerged around cable television in the

125 1970s, as the FCC Cable Bureau competed for policy influence within the FCC, as a high-profile representative of cable interests and as a conduit for ‘new thinking’ within the agency (Horwitz 1989: 252-253).

Second, there are professional or practitioner forms of policy activism, where professional policy analysts seek greater involvement in policy communities through the generation of forms of knowledge relevant to current policy issues. The involvement of academics in the broadcast media policy process provides various case studies in this form of involvement. This has the role played by mass communications researchers in TV violence debates (Rowland 1983); the debate among those in policy studies about policy advocacy as distinct from ‘value-free’ policy analysis (Forester 1993); the growing participation of economists in areas which had not been strongly influenced by economic forms of analysis, such as media and communications since the 1970s; and the more recent advocacy of a policy orientation to cultural studies made by those involved in the Australian cultural policy debates.

Finally, there is an understanding of policy activism, developed by Yeatman (1998) and others, that is based upon explicitly normative orientation towards community participation and an open-stakeholder conception of the policy process. Such policy activism has the potential to blur the distinction between policy ‘insiders’ and ‘outsiders’, since one of the goals of a bureaucratic policy activist is to bring advocates and activists from outside of government

126 inside the policy-making process. In her account of the strategies of housing policy activists in New South Wales in the 1970s and 1980s, Julie Nyland observes that the boundaries between state agencies and the community-based networks of ‘civil society’ become increasingly porous and intermeshed as a result of such policy activism:

Networks formed across the two sectors, linking activists in the community sector with activists who had moved into the public sector ... The picture is no longer a simple scenario of public policy makers locked in policy combat with community activists. In between these protagonists were the ‘policy activists’, who pursued policy reform across a range of arenas, in collaboration with one another across the institutional boundaries of public and community sectors. Using informal policy networks, they burrowed deep into the policy-making processes and into the very woodwork of the public sector. (Nyland 1998: 217)

Paul Dugdale refers to the ‘hybrid policy activist-professional’, who works within government but has ‘loyalties to something other than the requirements of bureaucratic office ... [and] a substantive ethical attachment to the pursuit of their work as bringing about some good’ (Dugdale 1998: 107). For Dugdale, the hybrid policy activist-professional most effectively operates within a ‘division of activist labour’, connecting with community-based activists, relevant professional groupings, and the agencies of policy and government, while bringing their

127 specialist knowledges to bear upon the policy process by being able to link normative and ethical principles, policy discourses and operational programs.

Broadcasting Property, Regulatory Agencies and the ‘Social Contract’ in Broadcasting

Broadcasting as a cultural technology has always been deeply inscribed by legal relations, and the forms of government policy that underwrite such legal relations. Thomas Streeter (1995) has argued that television is never simply a technology; it is a set of social relations and practices constructed in myriad ways by law and politics, with the result being that television, as technology and cultural form, is a legal inscription on technology. The regulation of private access to the spectrum, and the nature and conditions of access to spectrum space, establish broadcasting stations as ‘a combination of a particular channel with a particular transmitting facility, legally constituted and protected with a federally issued licence’ (Streeter 1996: 221). For Streeter, broadcast licences are soft property, as they are both public and private property, and ‘neither a thing nor a natural condition of human existence, but is rather a shifting, flexible bundle of rights, a set of contingent political decisions about who gets what in what circumstances’ (Streeter 1996: 207). Broadcasting is an area where, as a result of the fundamentally social nature of the service, in terms of how it is distributed through commonly held spectrum and received as a freely available public good, the capacity of state agencies to determine the legal and institutional arrangements and conditions for the

128 allocation of property rights is central to the conduct of broadcasters as institutional agents. 1

One of the features of broadcasting policy is that its history appears as one of regulatory agencies and other institutional interests moving between ‘cooperation and competition, government “interference” and private initiative’ (Streeter 1996: 165). This is not simply a reflection of shifting political fortunes, but rather a manifestation of the inherently intertwined nature of the private and the social, the marketplace and government, in broadcast property and the rights to its use. Rejecting the public/private dichotomy, Streeter argues, with reference to the US experience:

Broadcast policy … is best understood, not as government regulation, but as the mix of public and private social arrangements that undergird market relations. And those private and public social arrangements are usefully approached through the question of property creation. The category of property is the point where private and public most clearly and forcefully intersect. Property is a kind of nexus of culture, economics, ideology and state power. (Streeter 1996: 166)

It was noted in Chapter Two that the public nature of the airwaves has provided media reformers with some powerful rhetorical tools with which to engage commercial broadcasters. Likewise, the origins of regulatory agencies in

129 the need for distinctive governmental apparatuses to oversee the uses of private power for social ends has given them, historically, the potential capacity to constrain the economic power of corporations deriving from control over property rights. While establishment of these agencies involved, in theory, a formal reduction in the scope of freedoms of private property, in practice regulatory agencies have tended to interpret their mandates conservatively, and to be more protective than confrontational towards the industries they regulate.

Horwitz (1989) has observed how regulatory agencies have developed a form of ‘soft legalism’ or ‘bureaucratism’, possessing the formal apparatuses and capacities to enforce decisions as formal legal institutions, but tending in their everyday conduct towards a practice that has ensured mutually satisfactory outcomes between contending institutional agents. Horwitz proposes that regulatory agencies are involved in two particular elaborations of the political power of government. First, regulatory agencies combine legislative, executive and judicial functions, but are restricted in their domain of activity and their ability to initiate broader changes. Second, the operation of these agencies occurred on the basis of a more informal mode of rule making than formal legal institutions, with the agencies undertaking conduct that is more open-ended and discretionary in their dealings with contending parties that have operated within their domain of activity.

130 The conduct of all regulatory agencies has been shaped by the combination of the vague and open-ended legislative mandates which established their existence, the need to adopt quasi-judicial procedures to manage the ‘problems of discretion’, and the practical emphasis upon bargaining with interested parties as a way of minimising the costs, forms of conflict and lack of flexibility which arise from more formal, legalistic procedures. The value of bargaining is that it provides a relatively low-cost and informal means to resolve conflicts, but with outcomes, given the quasi-legal status of regulatory agencies, that have the force of law. The cost, from the point of view of those seeking to reform regulatory conduct, is that such an approach tends in practice to maintain existing policy communities and dominant interests in the regulated sectors.

Horwitz locates three phases in the development of national regulatory agencies in the United States, with organisations such as the Federal Communications Commission (FCC) being part of the ‘second era’ or ‘New Deal’ industry-specific regulatory agencies established in the 1930s and 1940s.2 The Federal Communications Commission (FCC), established in 1934, was established primarily to develop guidelines for utilisation of the electromagnetic spectrum, and to formulate substantive guidelines for what would constitute broadcasting in the public interest. In a manner characteristic of agencies set up in this period, the FCC promoted co-operative relations between government and broadcasters, promoting a ‘rationalisation’ of competition as a tradeoff for the establishment of mechanisms to ensure that such industries serviced particular

131 ‘public interest’ goals. The resulting social contract was one where the nature of the airwaves as common property subsequently allocated to private interests necessitated that ‘the broadcast trustee ... had to fulfill certain “affirmative” obligations’ (Horwitz 1989: 13). These ‘affirmative obligations’ characteristically included a commitment to children’s programming, coverage of matters of public importance, and coverage of events of local or community significance. In the Australian context, adherence to Australian content regulations would also be a central part of such a social contract.

Understanding its principal obligation as being to protect broadcast service to the public, and working with a broad but vague mandate and in a context of strong countervailing forces to its authority (the courts, the broadcast networks, the First Amendment guaranteeing freedom of speech and the Congress), the FCC consistently adopted a pragmatic and conservative approach to regulation. In relation to spectrum allocation, it ensured ‘de facto protection of existing broadcasters and broadcast services’ while, in relation to licensee behaviour, it made various, largely ineffectual attempts, ‘to influence licensee behaviour and programming decisions by broad, ultimately unenforceable policy statements and by means of indirect, subtle threats … or “regulation by raised eyebrow”’ (Horwitz 1989: 156). In his six-country study of broadcast regulation, Wolfgang Hoffman-Riem reached similar conclusions about the conduct of broadcasting regulatory agencies, observing that their regulatory conservatism arose in part from the concern that the use of formal sanctions, rather than ‘soft regulation’, or

132 regulation through informal negotiation with interested parties, would be seen as inappropriate intrusions upon freedom of speech:

As time passes, supervisory authorities increasingly tend to align themselves with the broadcasting industry’s interests in the success of their operations. They also contribute to maintaining the status quo - or deviate from it only gradually. As a result, once broadcasters have been licensed, their interest in a renewal of the license is usually satisfied … the supervisory bodies, when in doubt, play their part in supporting the incumbent rather than a competing applicant. (Hoffman-Reim 1996: 326327)

The overall effect of such a regulatory orientation has been to create barriers to participation for those who seek reform to existing regulatory arrangements. This has most notably included public interest and other advocacy groups on the one hand, and potential new competitors on the other. This commitment to a regulatory status quo in broadcasting, that has exchanged industry protection and the safeguarding of broadcast property for a commitment to ‘affirmative’ or ‘pro-social’ forms of programming, has not gone unchallenged. In the United States, consumer, environmental and public interest advocacy groups sought from the 1960s to control corporate prerogative and, seeing the regulatory agencies as captured by their corporate clients, engaged in policy activism through a combination of legal activism and demands for legislative

133 change. In doing so, they were encouraged by the sporadic regulatory activism of the FCC during this period, particularly when Newton Minow was Chair (196163) and put forward his famous ‘Vast Wasteland’ critique of US commercial television (Krasnow and Longley 1984: 43-52). At the same time, the so-called ‘Chicago School’ of economic analysis emerged, with its critique of regulatory behaviour as a form of cartel management, that transferred wealth and power from ‘disorganised’ interests such as consumers, to organised interests in industry and government. In the United States, technological change would promote a shift towards a new form of policy discourse, where cable TV in particular promoted the emergence of a new political alliance, that included the cable TV industry, professional groups, policy-makers (particularly the FCC Cable Bureau), and liberal-progressive advocacy groups, who advocated cable television as the solution to a diverse range of problems in broadcasting, ranging from lack of competition to lack of community access (Streeter 1983).

Broadcast Media Policy, Debate Cultures and Cultural Criticism: Academic Debate Cultures and Australian Content Regulations

The chapter will conclude with a discussion of the role that intellectuals and cultural critics have played in the development of broadcast media policy in Australia, particularly as this has been reflected in debates about Australian content regulations for commercial regulation, and their relationship to wider analyses of Australian culture. Broadcast media policy constitutes a site where a

134 diverse range of forms of institutional and personal agency are brought together, and where a series of distinctive debate cultures both coexist and compete for political influence. A central element of participation in these policy processes is the capacity for translation of ideas and values, or the ability to link political rationalities and ethical-moral concerns that arise from within particular institutional formations and actor networks with the technologies of government that form the basis of policy. The work of translation, when successful, ‘establishes a mutuality between what is desirable and what can be made possible through the calculated activities of political forces’ (Miller and Rose 1992: 184), or, in Michel Callon’s terms, enables the expression ‘in one’s own language what others say and want, why they act in the way they do and how they associate with each other’ (Callon 1986: 203).

For cultural critics, there is an ongoing danger of presenting administrative or bureaucratic rationality as only ‘one side’ of a full moral personality, with the ‘other side’ being represented by the humanist intellectual or social critic. What results is a tendency to present the ethical persona of the social critic as morally superior to that of the bureaucrat, with the result being, as Ian Hunter has argued, that ‘the marginality of the critical intellectual to the processes of bureaucratic government … is converted into ethical prestige’ (Hunter 1993/94: 101). This claim to ethical authority exists in spite of its inability to be translated into proposals that can meaningfully shape the development of social institutions (cf. Hunter 1994). Moreover, the dominance of various forms of ‘grand theory’, such

135 as Marxism and structuralism, has often meant that mundane technical issues of regulation, policy formation and institutional management are frequently subordinated to structural assumptions about the nature of class and other interests.3 Tom O’Regan has also noted that instances of policy failure, which are often quoted as evidence of the inability of policy-makers to overcome their moral narrowness and technicist leanings, may in fact be a part of the ongoing development of governance, where policy failure contains within it the expectation of policy improvement:

The ongoing activities of Australian governments and critics recording and publicising failures is an intrinsic part of government. Citing the failure of government policy to secure its desired ends is part and parcel of educating the public, enlisting its support, and legitimating new policy directions. It’s part of the tension between different parts of government, which, in any democratic society, spills over into the public domain. Without this information, and evidence to back it up, policy development and change is not made in the full glare of publicity and accordingly public consent is not forthcoming. (O’Regan 1998: 6)

An important point that needs to be established is that intellectuals or cultural critics are not to be found solely within the universities and other educational institutions. Michel Foucault drew attention to the emergence of what he termed ‘specific intellectuals’, and the new forms of connection between

136 theory and political practice emerging between those engaged ‘in a specific relation to a localized form of power’ through their own conditions of life, work, and professional practice (Foucault 1984: 72). Such a capability to engage in activism through the policy process is a particular outcome of the growing significance of expertise in modern forms of governance, identified by Terence Johnson as involving a closer relationship between professional experts and governmental strategies, related to the growing dependence of governments upon ‘the neutrality of expertise in rendering social realities governable’ (Johnson 1993: 151). It will be argued in the second part of this thesis that the period from the early 1970s in Australia marks the emergence of such a network of ‘specific intellectuals’ concerned with broadcast media with the policy networks or policy communities which are associated with the governance of Australian broadcast media. Their relationship to these networks is partly a personal and institutional one, but is also in part a discursive one, concerned with negotiating the shifting terrain of policy language in this field in order to maximise political advantage.

An interesting case study in engagement by cultural critics with the media policy process has occurred around the question of Australian content regulations for commercial television. Early work by cultural intellectuals on this topic was largely concerned with developing a critique of ‘Australianness’ as a stable and given cultural entity, analogous to the wider critique of cultural nationalism developed by historians such as Richard White (White 1981). Nonetheless, others have sought to associate such critiques with proposals to develop more effective

137 policy instruments for the regulation of Australian content. Such a policy orientation has in turn reflected three concerns. First, there is a recognition that, whatever the ‘mythic’ status of national cultural identity, cultural institutions involved with the generation of ideas, images and symbolic forms associated with a national culture have a material basis as part of the cultural industries, and there are issues associated with the development of employment opportunities in these industries (Sinclair 1996). Second, recognition that national cultures are what Philip Schlesinger has described as ‘sites of contestation in which competition over definitions takes place’ (Schlesinger, 1991: 174) has meant that discourses of ‘nationing’ can take on a variety of political inflections, some of which are more politically progressive and culturally inclusive than others.4 Third, and perhaps most significantly in the Australian case, there is the condition of postcoloniality faced by Australian cultural intellectuals, defined by Graeme Turner as a ‘double bind’, where:

Postcolonial intellectuals may feel compromised when criticising their own culture, because their criticism tends to align them with the coloniser; alternatively, uncritical defence of their culture aligns them with the chauvinistic nationalism so widely and variously used as a mechanism for generating consensus on a delimited definition of the nation. (Turner 1992: 427)

138 A ‘policy turn’ in Australian media and cultural studies arose in part out of the endeavors of Australian cultural intellectuals to negotiate an appropriate analytical and political position of engagement, between what Turner has termed the ‘rock’ of an exclusionary and backward-looking cultural nationalism, and the ‘hard place’ of global circuits of cultural production and distribution. Such critics sought to engage with the detail of Australian film and broadcast media policy, and the conflicting and contradictory tendencies of policy formation. Such work is open to criticism from left cultural critics for its complicity with nationalist discourses (eg. Milner 1991), and from those within policy communities who question whether the direct critical address of cultural nationalist arguments may weaken the capacity to lobby governments and industry organisations (eg. Bailey 1994). The fact that such a detailed body of work has been undertaken in Australia is also a reminder that the ‘policy turn’ in Australian media and cultural studies was only partly the product of critiques of cultural studies, but also arose out of debates about the relationship between national culture and global media.

In an early study of Australian content on television, Tim Rowse and Albert Moran argued that ‘it is impossible to define Australian content in television’ (Rowse and Moran 1984: 231). This is partly because nations such as Australia are marked as much by the differences within their boundaries as by similarities, and attempts to impose a unitary definition of ‘Australian culture’ are conservative and exclusionary. In spite of these concerns, Rowse and Moran supported Australian content regulations for television, because they had the

139 potential to create spaces for locally-produced TV content that presented more critical perspectives on Australian society. In Arguing the Arts, Rowse elaborated on this position, calling for a stripping back of the definition of ‘Australianness’ in publicly supported cultural activity, away from attempts at substantive cultural definitions, to the point where ‘“Australianness” should mean nothing more than that a number of residents of Australia were employed in the making of it’ (Rowse 1985: 79).

In The Screening of Australia, Dermody and Jacka (1987) concluded that the search for an Australian national cinema had proved, in the course of the 1970s, to have generated a conservative, aesthetically impoverished and culturally regressive film culture, making films that audiences, both Australian and international, no longer wanted to watch. In a later essay dealing with Australian film of the mid-1980s, Jacka (1988) argued that there had been a ‘commercial turn’ in Australian cinema, which had seen a decisive blurring of ‘distinctly Australian’ cinema into an international film circuit, encouraged by systems of feature film funding based upon tax deductions such as the ‘10BA scheme’. In asking whether such developments made ‘Australian cinema’ an anachronistic concept, Jacka drew attention to the ways in which arguments for public support to Australian film and TV production had possessed considerable continuity over time, in their combination of ‘a realist aesthetic ... with a unitary conception of Australia’ (Jacka 1988: 120). Awareness of the limitations of cultural nationalism in a diverse, multicultural Australia did not diminish the likelihood of continued

140 deployment of such arguments in policy debates, because they have both a strong rhetorical effectiveness and are the easiest proposals to legislate for. What had become apparent to Jacka, however, was that there was a widening gap between cultural critique and cultural policy, as film and media policy activists found it difficult to accommodate the growing body of academic commentary on the socially constructed nature of Australian national culture, preferring instead to redeploy ‘the same rhetorical positions that were expressed throughout the 1960s and 1970s, when the situation was profoundly different’ (Jacka 1988: 126).

Both Jacka and Rowse used a cultural industries rationale for supporting industry assistance measures for Australian film and television, recognising that the economic and employment arguments for government assistance to secure the production of Australian content remained persuasive, even if the cultural arguments underpinning them have become increasingly suspect. At the same time, both envisaged that Australian film and television productions could emerge that were not, as Jacka put it, associated with ‘the nationalist, the populist, the touristy’ (1988: 126). Instead, both Jacka and Rowse looked to a film and television production sector that was ‘local’, not in a geographical sense, but was rather grounded in a complex dialectic between national culture and everyday experience in culturally diverse societies. Jacka and Rowse both sought to promote the ‘local’ as an alternative to the ‘national’, since the strategic value of the ‘local’ is that it functions as an empty signifier; unlike the ‘national’, it has no pre-given form or content. Regulation for Australian content thus becomes a

141 necessary, but not a sufficient, condition for developing a ‘post-nationalist’ response to the limitations of cultural nationalism, in the context of a global economics of cultural production that threatens the viability of small national film and audiovisual cultures.

There are two problems with these arguments. First, whatever their limitations, discourses of national culture and cultural identity continue to provide a foundation for the intervention of nation-states in the cultural sphere. It is difficult to replace these arguments with variants of economic policy discourse, such as strategic trade policy, since such discourses lack the rhetorical depth of national culture discourses and their ability to inspire passion and commitment. Second, the problem with championing the ‘local’ is that its rhetorical strength of vagueness and lack of proscription is a weakness when translated into the policy domain, since the conditions of existence of local cultural production have only been defined in apparent contrast to the ‘national or ‘regional’. There is a ‘know it when you see it’ quality to the concept; as Jacka puts it, ‘the local … cannot be legislated for; it will erupt unpredictably if spaces are created for it’ (Jacka 1988: 127). Such innovative local audiovisual product has material conditions of existence in public policies which support initiatives that take place through cultural institutions, such as film funding policies which support low-budget and independent cinema, television content policies (particularly towards public or non-commercial broadcasting), and in cultural policy discourses of access, diversity, multiculturalism and innovation.

142

Stuart Cunningham (1992a) used the debate about Australian content regulations for commercial television to make a larger claim about the importance of developing a policy dimension for Australian cultural and media studies. Cunningham argued that, in policy terms, there was an important distinction to be made between: (1) critiques of cultural nationalism which work within official culture, demanding greater acknowledgment of pluralism, diversity and conflict in constructions of the nation; and (2) approaches which reject the concept of ‘national culture’ as deeply reactionary, and which celebrate the devolution of the nation-state through economic globalisation on the one hand, and the reassertion of sub-cultural and community identities on the other. Cunningham argued that, at least in the Australian context, the latter set of oppositions ignored the extent to which rhetorics of national culture had constitued a condition of existence for the establishment of national cultural infrastructures, which in turn have been the basis for extension of more local and community-based cultural policy initiatives:

What [anti-nationalist] analyses ... overlook is that a rhetoric and infrastructure for community cultural production, and its consequent employment and economic multipliers, have emerged in Australia only recently, and that these developments have been facilitated by initiatives taken and arguments won at the level of national coordination, policy and funding. National rhetorics, which may appear transparently ideological to the social critics, are of recent vintage and are quite vulnerable to the

143 stronger imperatives toward internationalisation which have a persuasive technological and economic cachet. Without a national cultural infrastructure, and a workable rhetoric to sustain it, the sources for enlivening community, local, regional or ethnic cultural activity would be impoverished. (Cunningham 1992a: 43).

The debate about Australian content regulations for commercial television illustrated, for Cunningham, the tensions and misunderstandings which can arise between the debate cultures of cultural criticism and cultural policy. Cultural criticism was seen as being ‘ideas-rich’, characterised by practices of rigorous scepticism and continuous textual innovation, whereas policy discourse was seen as being ‘ideas-thick’, characterised by the strategic deployment of familiar concepts and arguments as the basis for incremental change across a diverse range of fields. As a result, Cunningham argued, cultural criticism frequently misrecognises the distinctive functions which policy discourse performs, since ‘the rhetoric of policy tends to be so much grist to the critical mill’ (Cunningham 1992: 68-69).

An ongoing tension in Cunningham’s work arose when considering its implications for critical intellectual practice. Hawkins (1992) has argued that Cunningham does not adequately address some of the dilemmas of intellectual work applied to the policy field, such as the critiques of Australian cultural nationalism as a discourse that is both politically conservative and no longer

144 intellectually tenable. By contrast, Cunningham was saying that, whatever its other limitations, the rhetoric of cultural nationalism retains strategic value in the policy field. This may reflect the continuing gap between cultural critique and cultural policy as much as it does a rapprochement between the two, which is what Cunningham sought. It is also a reminder of the complexities and ambiguities of intellectual work that responds to globalisation from ‘semiperipheral’ or ‘antipodean’ countries such as Australia, and the resulting likelihood, as Turner describes it, of ‘living with contradictions [and] occupying positions that can be show to be less than consistent’ (Turner 1992: 427).

Conclusion

This chapter has undertaken a general overview of Australian broadcast media policy as being formed within an overall policy system, characterised b: a distinctive political economy, with strong tendencies towards industry concentration, highly dispersed consumers, and significant public good characteristics; a policy culture which has tended to give primacy to technologies and structures over culture and content; and policy discourses that have often placed wider questions about the social role of broadcasting off limits, as compared to technical issues about the delivery of broadcasting services. At the same time, the mixed nature of broadcast licences as ‘soft property’, with both public good and commercial characteristics, has provided the scope for significant forms of policy activism in the field, particularly when this has been accompanied

145 by a commitment to institutional pluralism and open processes on the part of regulatory agencies. Content regulations in their various forms have provided a site for such engagements, which have included intellectuals and cultural critics as well as the range of institutional and social agents who have a more ongoing involvement with the broadcast media policy field.

1

For a general discussion of this aspect of state capacity, see Campbell and Lindberg, 1990. The first, ‘Progressive’ era of the early twentieth century, saw the establishment of agencies concerned primarily with the construction of general and uniform rules for the conduct of behaviour by corporations in the marketplace, such as the Interstate Commerce Commission, the Federal Trade Commission and the Federal Reserve System. The third, ‘Great Society’, era of the 1960s and 1970s involves the establishment of agencies concerned with the promotion of ‘public’ or ‘consumer’ interests, as well as a critique of existing regulatory agencies as being ‘captured’ by producer or industry interests. 3 Alec Nove’s The Economics of Feasible Socialism (Nove 1983) relates this reluctance of the left to engage with concrete questions of policy to certain assumptions in Marxist theory, most notably the belief that the increased material abundance of advanced industrial capitalist societies would render processes of socialist planning simpler over time. 4 Tony Bennett’s work on the changing nature of museums, from sites for the training of national populations to ‘contact zones’ involved with ‘relations of reciprocal interaction with the different communities which comprise their cultural hinterlands’ (Bennett 1998: 211), provides an example of such developments. 2