Proving that someone controls an ‘undue amount’ of a particular segment of the media market is a headache even before you start looking at the cross-media issues
ON MONDAY, Bob Collins, chairman of the Broadcasting Authority of Ireland, and the eight other members of the authority, will sit down to assess the media holdings of businessman Denis O’Brien and the awkward question of whether they represent an undue concentration of ownership in the market.
Turn over the exam paper, read the question carefully and make sure to define your terms. This, according to a BAI spokesman, is likely to mark just the beginning of the authority’s discussions – after all, Monday’s meeting has not been specially convened to debate O’Brien’s coup at Independent News Media (INM). Rather, it is a scheduled monthly get-together where items such as approving or rejecting the latest applications to its Sound and Vision fund will also feature on the agenda.
The authority’s workload is not the only reason why its probing into O’Brien’s media interests is likely to be slow and not entirely sure-footed. Media market concentration, never mind undue amounts of it, is extraordinarily tricky to define, both philosophically and, well, legally.
Media expert Claire Enders, founder of consulting firm Enders Analysis, teased out some of the ambiguities to the Leveson Inquiry this week. She, like the British regulator Ofcom, favours a “share of consumption” metric that calculates the number of actual minutes of viewing, listening or reading that are allocated by members of the public to each media outlet.
But this is still, Enders conceded, “a very soft imperfect measure” that doesn’t take into account the fact that not all consumption is equal – if someone drifts in and out of a radio station that’s been left on in the background out of habit, the station’s output won’t have the same impact as a newspaper story avidly consumed word-for-word. People whose eyes are glued to every flicker of a television news bulletin may perform a mere quick scan of the newspaper headlines before settling down to the real business at hand: the crossword.
When it comes to newspaper readership, it is especially difficult to separate minutes spent on news and minutes devoted to entertainment, not least because these are not mutually exclusive terms.
The BAI’s ownership and control policy does offer some hard-and-fast numerical limits in relation to radio services. Updated in April, the policy reconfirms its ceiling on the total number of services one entity can own or control at 25 per cent, and adds a number of factors that it will take into account during licence applications if the number of services owned by a single entity exceeds 20 per cent.
Audience share – that is the absolute number of listeners, viewers, readers or subscribers – come into play in its proposed test on whether someone has “an undue amount” of media ownership or control. It’s a case-by-case basis situation. The BAI also “takes the view that there is no obvious practical matrix for determining what constitutes a ‘reasonable share’ of the sound broadcasting services in all cases”.
Proving that someone controls an “undue amount” of a particular segment of the media market is a headache even before you start looking at the cross-media issues. If “no obvious practical matrix” has been established for determining what is reasonable, then logic would suggest it’s next to impossible to label someone’s holdings unreasonable.
For a while, it was unclear as to whether the BAI would make any response to O’Brien’s move to increase his stake in INM from 22 per cent up to 29.9 per cent and then successfully remove unfavoured directors from the INM board. Ultimately, the boardroom drama did indeed prove enough of a trigger for it to write to O’Brien’s Communicorp group – owner of Today FM, Newstalk and numerous other radio stations – in June, asking it to set out its position. The BAI has now received Communicorp’s submission.
This remains confidential, but it would be astonishing if the radio group did not point out what the authority already knows – that the kind of media holdings that may once unarguably have made O'Brien seem like an all-powerful mogul and ultimate controller of vast swathes of the supply of news now have to be examined in the context of today's digital media landscape. The point here is not that the greater Twittersphere or news sites such as Distilled Media's theJournal.ieare necessarily so influential that they mitigate the presence of a figure such as O'Brien – the point is that their existence in the market is taken into account precisely nowhere in Ireland's media competition law.
This is just one of the hurdles awaiting the BAI. It would rather have waited until the Government published its Consumer and Competition Bill – which really should include digital media in its definition of “communications media” – before updating its ownership and control policy. When the Bill was delayed, it decided it had no option but to proceed with a refresh ahead of the current radio licensing round (Communicorp’s 98FM is, incidentally, one of the stations that sees its licence expire in 2013).
When the Bill is eventually produced, the BAI will have to update its policy again. Government ministers who don’t want to be the next Jeremy Hunt may also be tempted to delegate media merger decisions to BAI staff, putting it under greater pressure to lock down “a practical matrix” that can please everyone and sustain legal scrutiny.
