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Behind the Scenes / Public role key to ruling in NHK fees case

The Yomiuri Shimbun

By Yuri Ishihama / Yomiuri Shimbun Staff WriterProceedings have concluded in an appeals trial over whether NHK’s levy of broadcast reception fees violates the freedom of contract guaranteed under the Constitution, among other issues, with the Supreme Court’s Grand Bench expected to make a ruling for the first time within the year.

In its ruling, the top court will also likely express its stance on unpaid fees and the conditions for a reception contract to be valid, influencing views on the nature of public broadcasting.

Man sued for not signing

The defendant in the case is a man in his 60s from Tokyo who installed a television in his home in March 2006, but refused to sign a reception contract with NHK, saying he “didn’t approve of the lack of balance in their program contents,” and has yet to pay reception fees. In November 2011, NHK sued him, demanding that he sign a contract and pay for receiving broadcasts.

Central to the lawsuit is whether the first paragraph of Article 64 of the Broadcast Law violates the freedom of contract guaranteed by the Constitution. The paragraph requires that “persons installing reception equipment capable of receiving NHK broadcasts conclude a contract with NHK for the reception of those broadcasts.”

The defendant claims that this part of the Broadcast Law is unconstitutional, contending that reception fees should be “something you pay for the television you watch,” and that he should not be forced to sign a reception contract in light of the broad selection of channels now available.

Yet while freedom of contract is a constitutional right, it may be restricted for the sake of “public welfare.” Consequently, the Supreme Court’s judgment on whether NHK serves the public good will be key to its ruling.

The Broadcast Law, established in 1950, says the purpose of NHK is to transmit domestic broadcasting through good, rich broadcast programs, which can be received throughout Japan for the purpose of public welfare.

The legal team for NHK, in an argument before the Supreme Court on Oct. 25, raised the example of programs aired under the title “NHK Special,” stressing that NHK “produces quality programs.” A member of the team said: “Reliance on taxes [for its budget] would compromise its independence from the state, and reliance on advertising income would go against the intent of public broadcasting. Collecting reception fees from the people as ‘a special contribution’ is a reasonable practice.”

Kyoto University Prof. Masahiro Sogabe, a constitutional expert, said, “Japan’s broadcasting system comprises private broadcast stations that pursue viewer ratings, and NHK, which aims to create quality programs regardless of ratings, with the two forming a dual apparatus that, as a whole, fulfills the people’s right to be informed.”

If the Supreme Court upholds the social significance of public broadcasting, based on the structure of this broadcast system, it is likely the regulations will be ruled constitutional.

Broadcaster demands back fees

As of the end of March this year, according to NHK, 9.12 million out of 46.21 million households that were required to sign reception contracts had yet to do so. The Supreme Court is also expected to rule on the requisite conditions for a contract to be valid, and how far back viewers’ payments should be considered overdue. This will significantly impact NHK’s policies toward people who have yet to sign a reception contract.

The first and second lower court rulings that have been appealed said the contract with the defendant would be valid “when a ruling in favor of NHK was finalized.” Since 2011, NHK has filed lawsuits demanding reception fees from 281 households and others that refused to sign reception contracts. Defendants have been ordered to pay fees in 54 of these cases, with NHK yet to lose a case.

NHK claims that a contract becomes effective simply by requesting that a person with a television sign the contract. If the Supreme Court approves this view, then NHK will have the right to collect reception fees without having to go to court.

Should the Supreme Court acknowledge the validity of these reception contracts, the question of how far back viewers must pay fees will become an issue. The first and second lower court decisions said “the viewer should pay fees for the full amount of time since the television’s installation,” in line with NHK’s demands.

Currently, viewers who pay by automatic bank withdrawal every two months are charged ¥1,260 per month in reception fees, tax included, or ¥2,230 per month if they also subscribe to satellite broadcasts.

The defendant was ordered to pay approximately ¥200,000 in reception fees dating back to 2006. He criticized the first and second lower court rulings, saying, “It’s an unfair judgment, as some people will have to pay decades’ worth of reception fees.”

How to deal with One Seg mobiles?

As the way people watch television changes, including the spread of internet broadcasting and more TV channels available, new disputes have arisen over the current reception fee system.

An August 2016 ruling issued by a Saitama District Court has attracted particular attention. The Broadcast Law requires that “persons installing reception equipment capable of receiving NHK broadcasts” sign reception contracts. In response, the plaintiff, who owns a mobile phone with the “One Seg” function that enables users to watch television from the device, claimed, “One Seg is something I carry with me, so I’m not obligated to sign the contract.”

The ruling acknowledged this point, noting that the emergence of One Seg broadcasts was not foreseen over half a century ago when the law was established.

It dismissed NHK’s claim that One Seg devices are also subject to contracts, saying the argument “pushed the limits.”

However, a Mito District Court issued in May a contradictory ruling on a similar lawsuit filed, stating that “installation” conceptually includes portable devices.

Both cases are now under review by the Tokyo High Court. One Seg is not under deliberation in the current case over reception fees, but if the Supreme Court addresses the definition of “reception equipment” in its ruling, the One Seg lawsuits and other cases may be affected.

(From The Yomiuri Shimbun, Oct. 28, 2017)Speech

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