A fascinating debate has broken out in the wake of the Ghanaian National Communications Authority’s (NCA’s) decision to shut down two radio stations in the country for their refusal and/or inability to service and renew their frequency licenses, in some cases dating back many years. The corporate owners of the stations are said to be owing to the NCA back fees and levies in substantial amounts. The cool thing about this debate is that perfectly reasonable and well-informed people are unable to agree. Those are the debates worth having, especially in a democratic society where elite consensus should be hard won. My position on the matter is, however, fairly simple. The NCA should go to the civil courts to collect its overdue fees and any fines it has imposed and should continue to impose on the corporate owners of the radio stations for failing to meet renewal deadlines and for broadcasting without a valid license. What they should avoid in the future is the use of force to physically prevent broadcasting. It is easy to misconstrue the problem as one of “freedom of speech versus property enforcement”. Whilst this categorisation is close to the true situation, it is not really accurate. We are not dealing here with the individual rights of broadcast journalists in the employ of Radio Gold and Radio XYZ to express their views. Nor are we evaluating the right of NCA to use legitimate means to prevent expropriation of their property – the airwaves – by private individuals. Mischaracterising things that way has led some people to argue that the Radio Station staff may have a constitutional right to free speech, but nothing in the law says they should be free to grab hold of other people’s property – in this case, radio spectrum – and use it anyhow they wish in their bid to enjoy and exercise that right. One person put it this way: having freedom of worship doesn’t mean you can walk into Accra Mall Shoprite and attempt to conduct a “church service” with your motley crew of “prayer warriors” without permission. In the same vein, according to this argument, Radio Gold journalists should feel free to resort to their personal blogs or podcasts or even syndicate their views through other media channels. No one is preventing them from practising free speech or journalism; they just need to cough up the cash to pay for the means of practising that journalism. After all, free speech doesn’t include free access to laptops, pens or recording devices, so why should it presuppose uninhibited access to spectrum. This is an unfortunate overapproximation. The real tension here is not among competing private interests, but rather between two public goods:

1. A Free Press (not just “free speech”, per se, note the subtle difference); and
2. Fair Public Access to Spectrum (not property rights in spectrum).

Recast this way, the debate gets far livelier, and the outcome, in my humble view, tilts strongly to my view that physical preclusion from access to a public resource in any manner except through civil action is prejudicial, in a context where a competing public good objective predominates. Let me explain further. The NCA is an executive agency whose composition and functions are heavily influenced by the President and his assigns. The whole point of a “free press” is to limit the influence of powerful, senior, politicians and other members of the national elite on content regulation. That is why the NMC (National Media Commission) is set up to be more independent than the NCA. The latter’s frequency regulation activities must align with government policy. The NMC’s content regulation mandate, on the other hand, need not, or some might say, must not. The public good of a free press must not in any way be impeded by the “proprietarisation” of the airwaves. The law would not privilege rents due to an “owner of the airwaves” over the supreme public good of a free press, generally speaking. What the NCA is mandated to do – the public good element of their function, so to speak – is to ensure “fair access” to spectrum/airwaves. This is because whilst spectrum is non-excludable depending on the level of technology, it is still rivalrous. There is no need to get into the complex technical economics of these distinctions, but suffice it to say that without sound regulation everyone would broadcast any waves across any range or modulation leading to chaotic interferences and sheer confusion. The public would be much poorer for it. The NCA’s mandate then is to allocate channels to the many people who seek spectrum in a manner that would avoid chaos. Because demand is likely to exceed supply, it must divvy up the resource in a fair manner. The approach currently available for this task is “market-based rationing” whereby through licensing and registration, it seeks to auction off these resources and police their allocation. The NCA’s ability to undertake this mandate requires an ability to revoke allocations if an individual or entity is a) objectively abusing the spectrum or b) failing to comply with the market-based mechanism for fair access. Note however that, in respect of test (b), the fee mechanism (what earlier I referred to as “market-based rationing” is but one approach. An alternative means would be to use “first come, first serve” or “lot/lottery”. Current thinking suggests, however, that fee-based rationing is the most sensible mode of rationing. In resolving the tension between this important mandate of the NCA and the critical need to maintain and promote a free press secure from the arbitrary persecution of executive agencies, we need to separate the enforcement power of the NCA against “frequency abuse” and the power to enforce “fair access”. One is primarily law and order (consider someone intentionally interfering with civil aviation or national police frequencies) and the other is purely economic. Law and order enforcement typically involves the use of physical force, blockades, preemptive defences, and the whole apparatus of the state’s coercive capacities. Economic rule enforcement is primarily achieved through civil action. Regulatory agencies usually go to Court to enforce rules that are primarily economic in nature due to the reduced exigency and the limited harm in case of delay. The reason is obvious: unless warranted by other circumstances, coercive power should be sparingly used, especially where discretion and summary actions are in play. The right way to approach the Radio Gold and Radio XYZ issues then, regardless of the duration of noncompliant behaviour, would be to mount civil action to recover the fees due and continue with the strict enforcement of any consequent judgment debts against the delinquent entities. Remedying debt delinquency does not automatically mean the termination of broadcasting. Unless there is a garnishment of property that extends to transmission equipment, continuous broadcasting may well continue throughout the proceedings. In short, there should be no indelible link between fee delinquency and broadcasting rights. Even where a spectrum allocation has been revoked, only a court should be able to order the termination of broadcasting, due to the overriding public interest in the promotion of media plurality. That is to say, it is less the rights of Radio Gold journalists that concerns us, and more the fact that Radio Gold’s continued operation is more likely than not to contribute to more diverse voices in the media. Only a judicial forum provides the structures of due process sufficient for weighing the overriding necessity of media plurality against the strong imperative of fair access to spectrum. It is important to note, also, that the Ghanaian Electronic Communications Tribunal (ECT) is not the place to pursue debt delinquents. And its current ruling that “expired licenses” amount to a reversal of the status of the affected radio stations to fresh applicants de novo does not in any way constitute a judicial basis for termination of broadcasting in pursuit of debt or as a consequence of forced resolution/liquidation. The ECT simply re-established the importance of regulation to the fair access doctrine, which we have already acknowledged. In fact, it is the very idea that a radio station because it owes fees and has allowed its license to lapse should be blocked from broadcasting, even if it is not abusing the spectrum to the detriment of other spectrum users, that we are questioning here. Broadcast termination is neither an automatic remedy nor a particularly sound one. The reader might counter with the question of whether such an action would be counselled if the defaulters were tax evaders. Or if the broadcast equipment were “sectioned” or detained by the EPA (Environmental Protection Equipment) as posing a radiation threat. Such questions can only proceed from a misunderstanding of the argument being canvassed. Tax evasion is a crime that arises not from circumvention of a “fair access to public resource” provision but from conduct that directly imperils the finances of the State. And, here, there is no competing public good. Failure to comply with the radiation-rating of equipment or other safety standards directly imperils the public, and here too no competing mitigation is available because of public interest. Apples and bananas. I have avoided the citation of black letter law in order to reach for the deep underlying moral and ideological foundations of the debate, but it is interesting that both the original and amended statutes on broadcasting regulation in the United States, a reference country in media and broadcasting matters, cite “public interest” as the overriding basis of regulation. I believe that a careful reading of Ghanaian regulatory law, alongside constitutional and statutory provisions pertinent to the situation, should lead one to a very similar conclusion as the one drawn here.