The NCC Should Cease Enforcing a Bad Law

The NCC Should Cease Enforcing a Bad Law
 China Times editorial (Taipei, Taiwan, ROC)
A Translation
September 9, 2010

Some of the most prominent companies on Taiwan, including TSMC, MediaTek, and HTC, are Interested in digital convergence. They hope to invest in the radio and television industries. How has the National Communications Commission (NCC) responded? It has turned them down flat, saying it violates the clause stipulating that political parties, the government, and the armed forces may not own media companies. This is the absurd consequence of bad law combined with ossified reasoning by legal hacks.

The Broadcasting Act contains a so-called "Media Reform Clause." Its primary purpose was to correct problems arising from involvement by political parties, the government, and the armed forces in the media industry. The law was a product of its time. It stipulated that political parties, the government, and the armed forces may not hold even a single share in of stock in the electronic media, directly or indirectly. The law was harsh and unreasonable. This has become only too clear over the past two years. The victims are too numerous to list. Superficially, the Broadcasting Act was a highly substantive media reform act that drove political parties, the government, and the armed forces out of the electronic media. In fact it was a bad law that has seriously hampered industry growth and business operations.

Take for example Delta Investment, a blue-chip company which operates Erda, a satellite broadcasting technology company. Erda's products are sold in Chunghwa Telecom's MOD. Government funds have been invested in Delta. Therefore the NCC has ruled that it "violates the political party, government, and armed forces clause," and forced the company to sell off its holdings. Take for example Kai Bo, Taiwan's largest broadcasting network. Foreign shareholders include ASE, the leading domestic IC closed beta testing company. Government funds have also been invested in ASE. Therefore it too is classified as "illegal" and is being punished. Some broadcasting network shareholders are investment companies. Some investment companies are also listed. These listed companies have "shareholders' shareholders," who including government funds. Therefore, they too are off limits.

The biggest victim so far has been Taiwan Mobile, a subsidiary of the Fubon Group. Last year in September it purchased Kai Bo from the Carlyle Group. The total transaction amount was 32.8 billion NT. It also assumed over 24 billion NT in Carlyle debt. Its total investment was nearly 57 billion NT. But this investment failed to pass NCC approval, because Fubon Financial held shares in Taiwan Mobile. A few years ago, Fubon Bank merged with Taipei City's flagship bank, the Taipei Bank, The Taipei City Government holds Fubon shares. The NCC peeled away layer after layer, and lo and behold, it found that once again someone had violated the "political party, government, and armed forces clause." Once again, a company had reached dead end. When Fubon attempted to purchase Kai Bo in a private capacity, the price skyrocket nearly two billion NT in less than a year. The NCC's improper enforcement of a bad law merely provided the Carlyle Group with a massive windfall profit.

Recently, the China Television Company (CTV), under the name of CTVShop, attempted to purchase four channels, including the Travel and Living Channel and the Gala Television Channel. It was rebuffed by the NCC on all counts. The reason offered was equally absurd. The NCC said it "discovered by chance" that the Taipei City Government holds shares in Fubon Financial Holding. Fubon Financial Holding holds shares in Fubon Life. Fubon Life in turn holds shares in CTV. CTV in turn holds shares in CTVShop. Therefore even a company that is merely a "great, great, great grandson" is still considered in violation of the "political party, government, and armed forces clause" of the Broadcasting Act.

The above trail of blood shows what is wrong with the "political party, government, and armed forces clause." Add to this the NCC's legal hack mentality, and the entire industry has suffered a severe blow. The "political party, government, and armed forces clause" was a product of its time, with its own historical background and historical considerations. Its purpose was to prevent political parties, the government, and the armed forces from controlling the electronic media. The NCC, which is enforcing the law, remains oblivious to its underlying spirit. It has single-mindedly fixated on the "may not either directly or indirectly hold even a single share" clause, leading to this absurd and ridiculous result.

Leave aside the industry merger that resulted in the Taipei City Government holdings shares in Fubon Financial Holding. The government owns four major funds that continue to invest in the stock market. Its holdings are mostly blue chip stocks in various large scale industry leaders. The NCC cannot be bothered to ask whether the government has a controlling interest in these companies, let alone the right to operate these companies. Everyone of them is considered suspect and must be investigated. This essentially guarantees that every major public and blue chip company will be prevented from entering the broadcasting industry. Because, as long as one peels away enough layers, one will eventually discover government funds.

The NCC is utterly ignoring the fact that these government funds are merely financial investments. The percentage of shares held is very low. The government has no operating rights and no controlling interest. Even if it invests in the broadcasting industry, it has not in fact violated the spirit or substance of the "political party, government, and armed forces clause" of the Broadcasting Act. The NCC's "strict review" is merely hobbling the growth of the radio and television industry. It is merely making it harder for them to survive. It is merely making it more difficult for them to establish successful businesses and operate them efficiently.

The political party, government, and armed forces clause is unreasonable. The NCC is not totally oblivious to this fact. That is why it has proposed amending and loosening the law. But amending the law will require considerable time. Until the law has been amended, the NCC insists on enforcing the terms of the political party, government, and armed forces clause in an unreasonable manner. It continues to victimize industry. Digital convergence is under way. Television, radio, and newspapers are being combined into one. Frankly speaking, the NCC's approach has retarded the entire nation's economic growth.

In the past, political parties, the government, and the armed forces were a single entity. Their control over all forms of the media is a thing of the past. It was corrected by draconian measures that, if truth be told, amounted to overkill. Perhaps they were necessary at the time. But ruling party change has become the norm. The media has entered an era of intense competition. The Broadcast Act no longer has any meaning. If anything, political party, government, and armed forces interference in the media is far less likely and far less threatening than the large-scale influx of foreign capital. We hope the government will amend the law as soon as possible. Until the law has been amended, the NCC must understand the spirit of the law and the needs of industry. It must not rigidly adhere to the letter of the law, by reviewing cases with the mentality of legal hacks.

中時電子報 新聞
中國時報 　2010.09.10
NCC不應再用廣電惡法把關
本報訊

猜一猜，如果國內最佳的上市公司─如台積電、聯發科、宏達電等，對數位匯流有興趣，要投資廣電事業，國內通訊委員會（ＮＣＣ）會如何發落？答案是：不准，因為違反黨政軍退出媒體條款。這就是一個惡法加上法匠把關，造成的荒謬結果。

廣電三法中所謂的「黨政軍退出媒體條款」，主要是為矯正過去黨政軍介入媒體經營的弊病，其訂定有其時代背景。但訂定法條時，規定黨政軍不論直接、間接，連一股都不得持有廣電媒體的股權，其嚴苛與不合理，這兩年已非常明顯，受害者可說不計其數，表面上是非常落實黨政軍退出媒體條款，實際上則是嚴重影響產業發展與企業經營。

例如，國內績優的上市企業台達電投資從事衛星廣播事業的愛爾達科技公司，愛爾達的產品在中華電信的ＭＯＤ有上架。但因為政府基金有投資台達電，被ＮＣＣ認為「違反黨政軍條款」，經協商後被迫賣掉持股。再如最大的系統台凱擘，因境外股東有國內封測龍頭日月光投資，政府基金也有投資日月光，因此也是「違法」而挨罰。還有一些系統台，其股東為某投資公司，此投資公司又有一上市公司投資，此上市公司的「股東的股東」，又有政府基金投資，所以，也不行。

最「大尾」的受害者，就是富邦集團旗下的台哥大，去年九月從外資凱雷手上買下凱擘，總交易金額三二八億台幣，加上承接凱雷二四○億元的負債，總投資金額近五七○億元。不過，這個投資案最後也過不了ＮＣＣ這關，因為，富邦金控持有台哥大股權，而當年富邦銀行與台北市政府旗下的台北銀行合併時，台北市政府改持有富邦股票。層層算下來，嘿，又違反了「黨政軍條款」，所以死路一條。富邦要以家族個人身份再買凱擘，不到一年時間，價格暴漲一、二百億元，ＮＣＣ的「不當執法」，凱雷算是最大獲利者吧！

日前，中視以中視文化的名義申請生活旅遊台、綜合台等四台被ＮＣＣ駁回，原因，與前述的情況同樣荒謬。因為ＮＣＣ「意外發現」台北市政府持有富邦金控股權，富邦金控又持有富邦人壽股權；而富邦人壽「復持有」中視股權，中視又為中視文化之股權。所以，即使已經算到「孫子的孫子」公司了，還是踼到「違反黨政軍條款」的鐵板。

從以上「血跡斑斑」的案件，顯現「黨政軍條款」的問題，加上執法者ＮＣＣ的法匠性格，整個產業發展都大受打擊。「黨政軍條款」的訂定固然有其時代背景與考慮，但其出發點是不讓黨政軍力量控制廣電媒體。執法的ＮＣＣ不察其精神，一味拘泥在「直接間接都不得持有一股」的型式，終而造成這種荒謬與可笑的結果。

且不談台北市政府持有富邦金控股權的「併購共業」，由於政府四大基金持續在股市進出，且其持有投資標的多是各產業大型的龍頭股與績優股，ＮＣＣ這種可以不論政府基金是否有控制與經營權，一律算到孫公司的孫公司都要算的審查，幾乎擺明所有大型上市與績優企業都不能碰廣電事業，因為，努力多查幾層，最後總會出現政府基金的影子。

ＮＣＣ這種作法，根本無視於這些政府基金都是財務投資，且持股極低，對該企業既無經營權也無控制權，即使該企業投資廣電事業，事實上並未違反「黨政軍條款」的精神與實質意義。ＮＣＣ的「嚴審」，只是讓廣電產業更難發展、更難有活水，更難引進優秀的企業與經營。

黨政軍條款的不合理，ＮＣＣ不是不知道，因此也提出修法放寬，但修法過程緩慢，而在未完成修法前，ＮＣＣ又堅持且持續的以這種不合理的方式執行黨政軍條款，讓產業界一再受害。在數位匯流、三網合一的趨勢下，ＮＣＣ的作法，說嚴重一點是影響整個國家的發展。

過去，黨政軍「合體」，且控制諸多媒體時代，以「矯枉過正」的嚴厲手段打破黨政軍控制媒體，也許有其需要與意義。但在政黨輪替成為常態，媒體又處高度競爭時代，其意義已不復存在。甚至在現階段，黨政軍介入媒體的問題，恐怕還遠遠不及外資大舉介入國內廣電媒體的問題來得大、來得實際。相較其對產業與國家發展的負面影響，我們希望政府有關單位應儘速完成修法，在完成修法前，ＮＣＣ亦應體察法令精神與產業發展需要，不要再拘泥法條、以法匠精神審查相關案件。