Chief Justice rules $2.5M broadcast fee inapplicable for continuing broadcasters

Chief Justice (Ag) Ian Chang, has ruled that the $2.5M broadcasting fee which was imposed last year by the Guyana

Acting Chief Justice Ian Chang

National Broadcasting Authority (GNBA) on first time broadcasters should not be applicable to existing broadcasters. Further, the existing broadcasters, in keeping with the new law should pay 3.5 per cent of their gross revenue but only in the new year. They had earlier paid their licensing fees for the current year. Six broadcasters had initiated the court action after being told that they were required to pay the $2.5M fee. The broadcasters were CNS Channel 6; HBTV Channel 9; RBS Channel 13; HGTV Channel 16; MBC Channel 42 and SKAR Channel 102. “The court holds that regulation 3 of the Broadcasting Regulations 2013 is pro tanto valid to the extent that the minister has fixed a grant fee of $2. 5 million on first-time broadcasters but is invalid to the extent that the minister has purported to fix a percentage of 3.5% of gross revenue of the previous year for existing broadcasters,” the Chief Justice ruled. The Chief Justice added that if the minister is minded to do so, he must act under Section 40 (3) of the Broadcasting Act 2011 and not under Section 48 which does not empower him to do so. An annual fee based on a percentage of gross revenue of the previous year cannot apply to a first-time broadcaster and can apply only to existing broadcasters. On the other hand, a grant fee of $2.5 million cannot apply to existing broadcasters and can apply only to first -time broadcasters. Chang noted that all the applicants in the matter are “existing broadcasters”. They made this application on October 30, 2013. The court further noted that the Broadcasting Regulations 2013 were gazetted on November 29, 2013 i.e. after the applicants had already instituted these proceedings. In sending out letters demanding payment of fees in September 2013, the Authority could not therefore have been acting on the basis of the Broadcasting Regulations – even though Regulation 1 thereof provides: “These Regulations may be cited as the Broadcasting Regulations 2013 and shall be deemed to have come into operation on the 28th August 2012”. (The day the Broadcasting Act came into operation). It is significant to note that there is no provision in the Broadcasting Act 2011 conferring on the Minister power to make any regulation which involves creating retrospective fiscal obligations. “Thus, in respect of existing broadcasters, any regulation made by the minister and gazetted on the 29th November 2013 for annual licence fees could have effect only from the fiscal year 2014,” the Chief Justice noted. Moreover, regulation one of the Broadcasting Regulations was also found to be pro tanto invalid to the extent that it purports to have retrospective application for the payment of broadcasting fees. “It needs hardly be stated that Cabinet could not have determined any fees payable in respect of broadcasting after the coming into operation of the Broadcasting Act 2011 on the 28th August 2012 since that Act expressly vested such powers in the minister and the Broadcasting Authority under various sections,” the ruling specified. Chang also found that it did not appear that Bibi Shadick in her capacity as Chairman of the Authority made any decision in the determination of any fees in respect of broadcasting. “Nor does it appear that she, in that capacity, imposed any such fee. It does appear that it was the Authority (rather than its Chairman) which made a decision to prematurely enforce the Broadcasting Regulations.” “The signing and issuing of the letters (Exhibits D 1 – 3) by the Chairman were ministerial rather than administrative acts. The Order or Rule nisi of Certiorari made on the 30th October 2013 against her must therefore be discharged. The court so orders.” Chang posited that he believed that the demand letters were prematurely issued. The court case had challenged whether the Cabinet of Ministers itself has the authority to decide on fees for broadcasters or if the Parliament should not have played a role. The Board of Directors of GNBA was appointed last year but the secretariat is still to be fully established. However, broadcasters have been directed to submit new applications for broadcasting operations to the GNBA. Approved licencees have to pay two fees before they are handed their licences. The licence fee was set at a minimum of $2.5 million by Cabinet – the Council of Government Ministers chaired by the President, GNBA’s Chairperson, Bibi Shadick, announced back in June. The Cabinet reportedly directed that the licence fee be calculated at three percent of gross income for the preceding year, but it should be not less than $2.5 million. The issue of broadcasting has been a contentious one between the Government and the Opposition after 11 radio applications were approved for licences by former President Bharrat Jagdeo in late 2011, days before he left office. This was despite a standing agreement for no new licences until new broadcasting regulations and the GNBA were in place. Jagdeo’s best friend, Dr. Ranjisinghi ‘Bobby’ Ramroop received one with multiple frequencies. Also receiving a similar number of frequencies was The Mirror, a newspaper which belongs to the ruling party and Telcor, a company with close links to serving Natural Resources Minister, Robert Persaud. The disclosures of the licences, which also included approval for two cable TV operations, sparked court cases and several days of protests, as well as local and international condemnation. The administration has been accused of attempting to take control of the media by its actions.