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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
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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 mass-

circulation 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:


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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


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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 POLICY GOALS POLICY


GOVERNMENT INSTRUMENTS
REGULATION
Control of Entry Planned development of Licensing of commercial
broadcasting services broadcasters
Ensuring station viability and Limits on station numbers
system stability
Ownership and Control Limiting concentration of Limits on concentration of
media power ownership
Australian control of Limits on cross-media
broadcasting services ownership
Responsiveness to local Limits on foreign ownership
communities Local ownership requirements
Content Promoting Australian national Australian content standards
culture Children’s programming
Promoting local program standards
production Quota requirements for
Providing opportunities for program types (eg. local
local producers drama, documentary)
Catering to specialist
audiences (eg. children)
Program Standards Ensuring fair, accurate and Program classification
responsible coverage of standards
matters of public interest Advertising standards
Respecting community Time restrictions on program
standards content
Protection of children from Requirements for news and
harmful material 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
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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


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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 Policy
Economy 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
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institutional form, but it is important to distinguish those agents - primarily non-

governmental - 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
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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
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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
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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,


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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 non-

government 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


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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,


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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


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developments in the policy field. Noting that policy-making is not simply a goal-

oriented 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


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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
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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


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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
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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
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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


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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.


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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


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‘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
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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: 326-

327)

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


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change. In doing so, they were encouraged by the sporadic regulatory activism of

the FCC during this period, particularly when Newton Minow was Chair (1961-

63) 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


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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
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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


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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
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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)
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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
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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


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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.


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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
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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 ‘semi-

peripheral’ 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
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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.
2
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.