CGCS visiting scholar Adriana Mutu discusses the EU’s Audiovisual Media Services Directive and the independence of National Regulatory Authorities (NRAs). Adriana, a Ph.D. candidate in Political Science at the Autonomous University of Barcelona, is beginning her research on the relation between media systems and political systems focusing on institutional aspects of broadcasting regulation in Europe. Results of this research are forthcoming.
On February 3, 2014, the European Commission (EC) formally established a new group of regulatory authorities to oversee audiovisual services. This group, “The European Regulators Group for Audiovisual Media Services,” is designed to foster closer and more regular cooperation between member states’ regulatory bodies and the EC, and to advise the EC in implementing the EU’s Audiovisual Media Services Directive (AVMSD). Members of the new group are the heads or high level representatives of national independent regulatory bodies in the field of audiovisual services. According to an EC press release, the group’s first meeting will be on March 4th.
This recent event highlights an ongoing debate regarding media governance, policy and regulation across Europe. Strengthening cooperation between independent regulatory authorities in the broadcasting field is a recurring trend in recent policy recommendations. As seen in directives such as Directive 2010/12/EU, policy objectives emphasize EU coordination, especially in providing rules to shape technological developments, creating a level playing field for emerging audiovisual media, preserving cultural diversity, protecting children and consumers, safeguarding media pluralism, combating racial and religious hatred, and guaranteeing the independence of national media regulators. This article will discuss the independence of national media regulators, the focus of my research, situating the question of regulatory independence within the interdisciplinary agenda on regulation across Europe.
The concept of independence was originally adopted to characterize the institutional status of Central Banks (Rogoff, 1985). Central Banks’ independence comprises two elements: political independence, “the ability to select policy objectives without influence from the government,” and economic independence, “the ability to use instruments of monetary policy without restrictions” (Alesina and Summers, 1993; Maggetti, 2007).
Among other requirements such as accountability, transparency and participation, independence is perhaps the most central principle of good governance. In this context, independence is understood as, “the absence of pressures from political and industry interests,” and its implementation “requires the adoption of a series of measures that will shelter the agencies against undue pressures” (Magnette, 2005). Among European and American scholars there is a divergent understanding of what independence from political interests is. This relates to the peripheral role of political parties in the EU model of governance. While in the US independence means avoiding political control by one party, in the EU independence means “independence vis-à-vis industry interests, as well as independence vis-à-vis the Commission and the Member States” (Magnette, 2005).
In the audiovisual field, independent regulatory authorities represent a key model of European media governance. Much of the literature on regulatory agencies examines why governments allow the creation of National Regulatory Authorities (NRAs) and how NRAs retain their independence, especially given politicians’ incentives to reassert control over the media. Comparative studies on regulation and media independence, however, provide little systematic theoretical and empirical evidence to support the links between institutional arrangements and policy outcomes. Research to date tends to focus on particular and specific national cases rather than cross-country comparative studies. Communication scholarship and public policy are “weakly connected” (Neuman, 2003). Albeit the immense literature on regulation, the number of studies dealing with the political aspects of media regulation is limited.
My research focuses on the formal (de jure) independence of NRAs for broadcasting by analyzing a series of prescriptions enshrined in the constitutions of agencies, which are intended to guarantee independence from elected politicians (Gilardi, 2001). Political independence represents “the degree to which the day-to-day decisions of regulatory agencies are formed without the interference of politicians and/or consideration of politicians’ preferences” (Elgie, 1998). The hypothesis that very independent regulatory agencies will have a stronger position and greater power is a basis for normative arguments based on the credibility, legitimacy, and administrative capacity of NRAs. Following normative arguments, the core argument of my research is that formal independence is a key variable when studying broadcasting regulators’ functions. Despite the importance of this variable, very few comparative studies examine the formal independence of regulators across Europe. One of the major reasons for the lack of comparative work is the absence of a suitable method for conceptualizing and assessing formal independence that can be used in cross-case studies.
My work adds to current research as it introduces new data on a number of variables such as institutional framework, internal organization and staffing, powers of the regulatory bodies, financial resources and checks and balances, and uses these indicators to create a proxy for the independence of regulators. I am currently constructing a database on NRAs, collecting data from different sources such as official documents, statutes, constitution, laws, terms of reference, rules of procedures, the financial regulations. The evolution and the forms of broadcasting regulation across Europe will be presented in a cross-national, cross-time, and cross-issue analysis of patterns of regulation.
Different models of NRAs for broadcasting have been established in European countries. Indexing their main features, emphasizing the differences among them and comparing the outcome in decision-making processes add new dimensions for measuring the performance of regulatory institutions. Specifically, reason for further research is evaluating the extent to which NRAs use European networks of regulators to justify and legitimize independence. The EC’s establishment of the new group of regulatory authorities for broadcasting gives us the opportunity to explore this issue, contrasting national and European norms in the attempt to explain how transnational networks affect the relationships between regulators, national governments and European institutions.
 The distinction between formal (de jure) and actual (de facto) independence has been widely analyzed in the literature. Formal independence is “the product of laws and statutes prescribing the institutional design and safeguards of a regulatory body” (INDIREG, 2011). The notion of de facto independence characterizes the effective independence of agencies during their day-to-day regulatory action “without receiving and acting on the basis of instructions, threats or other inducement from politicians” (Hanretty, 2010). Indexing formal independence is relevant when assessing the actual independence of regulatory agencies. As scholars Hanretty and Koop (2009) state, “there is value in studying formal independence” if more independent agencies deliver better policy.
- Alesina, A.; Summers, H.L. (1993). “Central Bank Independence and Macroeconomic Performance”. Journal of Money, Credit and Banking, 25, p. 151-162.
- Elgie, R. (1998) “Democratic accountability and central bank independence: Historical and contemporary, national and European perspectives”, West European Politics 21(3): 53-76.
- Gilardi, F. (2001). “Policy credibility, Interdependence, and Delegation of Regulatory Competencies to Independent Agecies: A comparative empirical consideration”. Paper presented on ECPR Joint Sessions of Workshops. Grenoble, 6-11 April.
- Hanretty, C. and Koop, C. (2009). “Compararing regulatory agencies: Report on the results of a worldwide survey”. EUI Working Paper RSCAS 2009/63. Available at: http://cadmus.eui.eu/bitstream/handle/1814/12877/RSCAS_2009_63.pdf?sequence=1.
- Maggetti, M. (2007). “De Facto Independence After Delegation: a Fuzzy-Set Analysis”. Regulation & Governance, 1(4), p. 271-294.
- Magnette, P. (2005). “The Politics of Regulation in the European Union”. In Geradin, D.; Muñoz, R.; Petit, N. (eds.) Regulation Through Agencies In The EU: A New Paradigm of European Governance. Cheltenham: Edward Elgar.
- Neuman, W.L. (2003). Social Research Methods: Qualitative and Quantitative Approaches. Boston: Allyn and Bacon.
- Rogoff, K. (1985). “The Optimal Degree of Commitment to an Intermediate Monetary Target”. Quarterly Journal of Economics, 100, p. 1.169-1.190.
- Hanretty, C. (2010). “Explaining the De Facto Independence of Public Broadcasters”. British Journal of Political Science, 40, p. 75–89.
- INDIREG report. (2011) “Indicators for independence and efficient functioning of audiovisual media services regulatory bodies for the purpose of enforcing the rules in the AVMS Directive” (SMART 2009/0001)” Available at http://www.hans-bredow-institut.de/en/node/3904.