By IKEM OKUHU

The immediate impression one gets from interacting with the recently released 6th Code of the National Broadcasting Commission (NBC) is that someone just might be introducing communist-style management in the country’s broadcasting landscape. Otherwise, it is almost impossible to understand what the Nigerian broadcast regulator targets to accomplish by this dangerous unitary, anti-enterprise policy that certainly will constrain innovation and organic competition in the industry.

Also read: Why FG is breaking monopoly in broadcasting — Lai Mohammed

It is urgently important to remind the Nigerian broadcast regulator that this is not 1920 but the year 2020 and that the democratization of entitlement in an industry that demands creativity as most important means of brand differentiation is inimical to progress. The impression one gets from reading the new code, especially the sections that address the broadcast industry is that NBC’s intention is the commoditization of broadcasting by promoting equality of all players in the industry. Before November 22, 1996, when the first private broadcast stations launched in Nigeria, this could have been possible, broadcasting being the exclusive preserve of government. Even then, and considering the differences in political, ideological, economic, social and even religious goals of the different federal and state governments, this would still have accomplished very limited results.

While many sections of this new Code are as self-contradictory as they are repugnant to the demands and letters of business differentiation and innovation, it is important to take deep looks at Sections 6 and 9, which treat the issues of competition in the industry.

Section 9.0.1 provides in part that, “…no broadcaster or licensee shall enter into any form of broadcasting rights acquisition either in Nigeria or anywhere in the world to acquire any broadcasting right(s) in such a manner as to exclude persons, broadcasters or licensees in Nigeria from sub-licensing the same.”

As if this was not bad enough, NBC, in Section 9.1 compels license holders to supply their licensed programmes to other broadcasters, upon demand and within “reasonable time” and at a given premium, failing which penalties follow. It will be nice to study the law establishing the Nigerian broadcast regulator to determine if one of its roles includes price control, but even if that very unlikely role exists, NBC should also know what should deepen broadcasting in the country and what shouldn’t.

Except Nigeria is reversing to the era of government-controlled broadcasting monopoly, in which case, the Nigerian Television Authority will resume control of programme licensing, NBC should realise that seeking to create a level playfield with the 6th Code for Broadcasting in Nigeria will defeat all the gains so far made since the Decree No. 32 (as amended) established private broadcasting in Nigeria.

Nigerians were used to hearing, in the days of continuity announcers, about “clear signals”, “quality programmes” and the comparative “wider reach” as constituting the core differentiators of broadcast houses and that is because globally, broadcast houses differentiate themselves mainly along the lines of programming and, to a great extent, their target audiences. In designing or seeking to acquire programmes, certain segments of the audience are mapped and deliberately targeted. Once a programme begins to attract a lot of eyeballs as compared to the competition, its rating rises and along with it, the potential commercial value. Rating agencies like Nielsen’s Television Audience Measurement (TAM) in the United States, and Broadcast Audience Research Council (BARC) in India, make tons of money providing radio and television audience research services to advertisers.

Businesses like what TAM and BARC India offer will have no place in the kind of ecosystem that NBC is trying to create in Nigeria where, by the strange decree of this Code, producers and/or licensees of commercially viable programmes would be prevented from enjoying the full benefits of their creativity, investments in marketing and vision. What NBC is trying to usher in is a regime of entitlement where broadcasters would prefer to sit on their hands in wait for a clever and creatively future-forward entity to generate compellingly sellable content at which time they would apply for a relicensing, failing which, they would run to the NBC to invoke the provisions and, possibly, punishments prescribed in Section 9.1.1.11.

Penalties for failure to relicense content range from N10 million. One then begins to wonder if the regulatory agency is out to penalize innovation and compensate mediocrity. It is obvious that NBC, with the new Code, is trying to help new entrants in the Pay TV market, but it makes no sense stopping the progress an entire industry simply because you want a new entrant to get a foothold. Families do not stop their older children from going to school just for the reason of allowing the younger ones to catch up. In the wider world of productivity, Carl Benz, who made the world’s first car in 1886 was not asked to stop producing or to release his patents to other players just to make the industry fair. And interestingly, while Mercedes Benz has remained the most valuable car brand in the world, Toyota, a very late entrant, appears to have sold the most units of cars with its Corolla model.

The underlying reason for the Code, as specified in Section 0.2.2.7 apparently is to “prevent the misuse of monopoly” by broadcasters, but it is impossible to inspire a creatively vibrant industry by pampering the weak while punishing the strong. It is against this backdrop that most people interrogating the revised Code are asking a number of questions of NBC:

1. A lot of sections in the Code speak about “fair market” but it is not clear what NBC thinks constitutes a fair market?
2. What problems do the regulator aim to resolve, especially given that there have not been reports of unfair competition in the industry?
3. Why is there a lot of emphasis on sharing of content and how does anyone hope to promote investment in production in a communist-style environment where the mantra is looking like it is “from each according to his ability and to each, according to his NEED?”
4. What genres of content are sharable: are they restricted to locally produced content or those licensed by foreign content owners?

Answering these questions fairly and honestly could reveal, even to the regulator, the inconsistencies in the provisions of its own Code. For instance, while Section 9,1.1. prescribes unhindered communalism in premium contents like Sports and News, Section 3.18.3 provides that broadcasters shall not only obtain permissions of music rights owners but also pay all royalties applicable. Nowhere in this section did the NBC state what happens should the musical artiste fail to grant permission to the broadcaster. More importantly, what is the difference between the property rights of a musician and that of a broadcast content provider to warrant so diametrically opposing prescriptions and in the same broadcast Code?

Given the long and detailed provisions of Section 6 of the Code, it would seem that the broadcast regulator might have had as its primary motive, the review of how sporting content is franchised and managed. The opening statement in this rather long section states that “it is the policy of the Nigerian Government to promote local entrepreneurship in the creative industry in Nigeria”.

Except the National Broadcasting Commission is, by this new Code, giving the word, “Entrepreneurship” a whole new meaning, it wouldn’t be wrong to conclude that the rest of the subsections of this section, and the little portion that somehow, strayed into Section 9, have rendered the promises an potentials of the opening statement impotent. This is because, by its elementary meaning, entrepreneurship refers to the “concept of developing and managing a business venture in order to GAIN PROFIT BY TAKING SEVERAL RISKS IN THE CORPORATE WORLD.

Did NBC give due consideration to the risks in entrepreneurship and the expectations of rewards? It would seem that while mouthing support for enterprise, the NBC also habours the intention to protect those who would prefer to be on the sidelines while others are thinking and taking risks.

If the broadcast regulator’s objective is to provide a fair playfield for new entrants, it becomes very important to remind them that in the history of broadcasting the world over, new entrants have always found their way to the top without the state providing them with a magic carpet. For instance, until the 1980s, the US broadcasting ecosystem had only three players at the top of the food chain. They included; American Broadcasting Company (ABC); the Columbia Broadcasting System (CBS) and then the National Broadcasting Company (NBC). But by 1986, Fox happened on the scene and quickly raced to the top of the ratings. Part of the factors for Fox’s success was its creativity and unique programming, eventually fueled by its acquisition of the broadcasting rights for the National Football League (NFL).

Another example is in the Nigerian telecom sector where Globacom, a late entrant was not given any special leverage by government. But this company clawed its way to a decent number 2 showing at a time on the back of innovations that lured the customer.

The fate of an entire industry is at the mercy of a Nigeria’s overly benevolent regulator.

Vanguard