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Published: August 31, 2005
Abstract
[*Should a discrepancy exist between the Chinese and English versions, the Chinese version takes priority.]
After its license renewal application for the TV news channel ETTV-S was rejected by the Government Information Office (under the Executive Yuan), the Eastern Broadcasting Company petitioned the Taipei High Administrative Court for a provisional measure to continue its operation. On August 19, 2005, the court ruled to reject the petition. The reasons for this rejection are summarized as follows:
| Table of Terms Used in this Verdict | | Terms used hereafter | Referent | | Petitioner (hereafter referred to as EBC) | Eastern Broadcasting Company | | Other party (hereafter referred to as GIO) | Government Information Office, Executive Yuan, Republic of China (Taiwan) | | Channel in question(hereafter referred to as ETTV-S) | ETTV-S, Eastern Broadcasting Company's news channel | | Original sanction of approval | GIO approval of a broadcasting business license to ETTV-S | | Original sanction | GIO's administrative sanction to reject the ETTV-S license renewal on August 2, 2005 | | The Act | The Satellite Broadcasting Act |
According to Article 5 of the Act, applications shall be filed with the regulatory agency for approval to operate satellite television broadcasting. Paragraph 2, Article 6 of the Act stipulates that satellite broadcasting business licenses are valid for six years. The business license issued by the GIO to EBC was valid from August 3, 1999, to August 2, 2005. Since the original sanction of approval was an administrative measure subject to time limitation, it would become invalid on the date of expiration, and EBC could no longer transmit programs through ETTV-S with an expired sanction of approval. Financial and other disadvantages are the natural consequences of expiration and invalidity of a time-limited sanction of approval. EBC contended that suspension of ETTV-S would bring about an annual shortage in earnings of at least NT$700 million and the loss of professional staff and work teams that had been cultivated over many years. Moreover, because of termination of ETTV-S, its employees might have to face job transfer or even unemployment, and its hard-won reputation built up through six years of effort, the channel's growing audience and TV ratings, and even its longstanding advertisers who appreciate its rating performance, might totally evaporate due to termination of ETTV-S. The court maintained, however, that the losses and damages were caused by the expiration of the original sanction of approval, and not by the original sanction (of rejection) per se.
I. Since the original sanction of approval was subject to time limitation, EBC should have anticipated that it might cease to be effective on August 2, 2005. When applying for the original sanction of approval, EBC should have considered its term of validity and evaluated the scale and risks of its investment and business deals. After its original application was approved, it should also have had contingency plans ready for the possible aftereffects that would be caused by invalidity of its license six years later. EBC is at fault if it did not prepare for the occurrence or aggravation of such aftereffects. The Act specifies that the valid period of a license is six years; review of its license renewal application can be regarded, therefore, as a case of new application. Since no one can assure the approval of a license renewal application, it would be wishful thinking if EBC were to take such approval for granted. EBC should be responsible for all losses if it does think so and fails to make any contingencies.
II. EBC claimed that, should ETTV-S cease broadcasting, its many employees would be laid off, which would cause hardship for their families. In addition, it would be difficult for ETTV-S to recover its operational losses and corporate reputation in the future. The rights and interests of ETTV-S's viewers and advertisers would be affected as well. On top of this, regional system operators would replace the original channels and broadcast alternative ones. EBC, however, failed to present any evidence for the prompt clarification of their claims. During the license renewal interview held on July 27, 2005, ETTV-S's editor-in-chief Lee Huei-huei indicated that 60 people worked for the channel. She also admitted that four of the penalties that ETTV-S had received were for obtaining content from "the same news sources" as ETTV News. This is consistent with ETTV-S's operations plan presented to the GIO, which states that "ETTV-S is only an auxiliary channel of ETTV News and also the only secondary news channel in Taiwan's TV industry." It also stated, "[ETTV News's] experienced journalistic human resources can enhance ETTV-S's program content and greatly reduce operation costs by sharing manpower and facilities needed for producing news programs." On the other hand, information obtained from EBC's website shows that, apart from ETTV-S, EBC also owns other domestic channels, including ETTV News, ETTV Foreign Movie, ETTV Drama, ETTV Variety, YOYO TV, ETTV Movie, Super TV, and a value-added digital channel. Its overseas media businesses include ETTV America, ETTV Asia, and ETTV Europe. Furthermore, EBC has other media businesses in Taiwan, including ET Today, ETFM 89.3, The Commons Daily, as well as commodity businesses such as a TV shopping and a general retail department. Even though ETTV-S does employ full-time staff, according to the law, they cannot possibly be made redundant if EBC's other channels and businesses lack manpower. As a matter of fact, the responsible person of EBC announced to the public, "none of its employees would be subsequently made redundant, and some of them would be transferred to ETTV Variety to produce noon, evening, and midnight news programs, while others could produce commissioned programs." After the original sanction was delivered to EBC, EBC announced on August 4, 8, 9, 10, and 11 through a local human resources website, dozens of job vacancies for operations managing specialists, graphic designers, scriptwriters, assistant directors, training and development officers, soundmen, cameramen, and so on. In this light, EBC's claim that 300 employees would lose their livelihood, causing their families great hardship, is inconsistent with the evidence.
III. Paragraph 2, Article 6 of the Act stipulates, "The license mentioned in the preceding Paragraph is valid for six years. A satellite broadcasting business shall file an application with the regulatory agency for license renewal within six months prior to the date of expiration of the license." Accordingly, EBC should have filed an application for license renewal no later than February 2, 2005. EBC, however, failed to submit the application until March 15, 2005, making it 40 days overdue. EBC places all blame on the GIO for the deferred review of its license renewal, and this is unfair.
IV. The broadcasts of Taiwan's electronic media are full of exaggeration, privacy infringement, sex, violence, and violations of the law. Even instances of stories being fabricated exist. This is precisely the so-called "ecologic imbalance in Taiwan's media" and " 'broadcasting disorder' in Taiwan's society," as stated by EBC in a newspaper announcement after being informed of the license renewal denial. It is common knowledge that this greatly affects the sound development of satellite broadcast and the public's audio-visual rights and interests. In particular, as more than 80 percent of Taiwan's population has access to cable TV, a large majority of individuals and families are concerned. Whether cable TV fulfills its social responsibilities and abides by related laws and regulations has a bearing on public interest. ETTV-S, however, was punished 25 times for violating laws and regulations between October 24, 2000, and July 1, 2005. In addition, most of the serious violations were for breaching the Regulations for the Classification of Television Programs and the Sexual Assault Crime Prevention Act, impairing the physical or mental health of children or juveniles, or disrupting public order and good social customs. ETTV-S, however, maintained that it did not commit any such serious violations of the Regulations for the Classification of Television Programs or of compulsory or prohibitive regulations under the law. Its claims were found to be unconvincing. In this light, with ETTV-S having this type of record, should it be allowed to continue operating and broadcasting before its original sanction is ascertained, public interest would clearly be violated.
V. Thereby, EBC did not suffer a great loss (or an unrecoverable loss) due to the original sanction. In addition, should ETTV-S be allowed to continue operating and broadcasting before its original sanction is ascertained, public interest would clearly be violated. EBC's petition does not meet the prerequisites of Paragraph 2, Article 298 of the Administrative Appeal Act. Its petition for a provisional disposition to obtain temporary status is groundless and should be rejected.
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