Who is afraid of public service broadcasting? The digital future of an age-old institution under threat

Introduction: Public service broadcasting (PSB) finds itself currently in the eye of the storm. It has been for some time now the target of sustained criticism on the grounds that it is a relic from the age of spectrum scarcity, a paternalistic curb on viewer sovereignty and consumer choice, an unjustified intervention in an increasingly competitive marketplace. The amount of funding it receives, its governance, and also, more and more, the extent of its remit are under close scrutiny.
Since the beginning of the nineties, public service broadcasters (PSBs) across Europe have been faced with a cascade of appeals at European Union level against the allegedly anti-competitive nature of the licence fee and other forms of state support received by them. Initially these attacks were spearheaded by commercial operators claiming that the state financing of PSBs constituted unlawful state aid under Article 107 TFEU (ex Article 87(1) EC). The first complaint was filed in 1992 by two Spanish commercial broadcasters regarding the public funding of regional broadcasting channels and of the national broadcaster TVE. It was followed by numerous other complaints against the PSBs of almost all the Member States of the European Union of the Fifteen. In a nutshell, Private broadcasters alleged that the public service remit was not defined in a sufficiently precise manner, that there was no adequate independent supervision, that the licence fee was excessive, and that it distorted competition in advertising and other commercial markets.
The 1997 Amsterdam Protocol has not shielded Member States’ institutional and regulatory arrangements for organizing and funding PSB from scrutiny. It clarified that it is for the Member States to define the remit, but preserved the Commission’s competence to assess the effect of national funding mechanisms on trade and competition. However, financial and content-related supervision are intertwined.