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Is NHK worth its subscription fees as Japan’s public property?

Tatsuo Uemura
Professor, Faculty of Law, Waseda University

The keyword is “a mature civil society”

The stance of NHK, which is always of national interest, is deeply connected to current Japanese society. I became a member of the NHK Board of Governors more than five years ago, and I have also served as an audit committee member and acting chairman. In the self-introduction I gave upon my assumption of the management committee post, I said that, “NHK is a public property, our commons, and it can influence the quality of Japan's civil society.” This belief has not changed for me. The key issue of NHK is what a mature civil society ought to be.

At present, an issue that’s drawing much public attention is the appointment of NHK’s president. Will the scandalous President Momii be reappointed? Another is if subscription fees should be collected even when viewing NHK programs online. Moreover, how the governance of the organization should be changed is also important as it is significantly related to the two issues. Below are my personal views on these issues.

Reappointing Momii would be suicidal for the Board of Governors

The NHK Board of Governors has established a nomination committee and begun the nomination procedure for president of NHK. While people seem to be talking about the high possibility of reappointing Momii and intentions of both the Prime Minister’s Office and the Board of Governors Chairman Ishihara, this issue is very simple – it is whether Momii meets the requirements for the position of president set by the nomination committee. The nomination committee, which is comprised of the members from the Board of Governors, narrows down a list of candidates. The new president is then nominated from this list, requiring at least 9 votes out of the 12 members.

The nomination procedure for the next president appears to be basically the same as the previous nomination, which is: (1) be politically neutral, (2) fully understand the roles of NHK as a public broadcast, (3) be an honorable person who can give convincing explanations and gain trust from the general public, (4) be an imaginative, strong leader who puts plans into action, and (5) have a business sense which can adequately adapt to social changes and meet the needs of the new era. Although the previous nomination procedure had six required qualifications, there is no difference in the content.

President Momii has been criticized for his frequent controversial remarks. In his first press conference, he said, "I cannot say 'left' if the government says 'right,'" "comfort women were common at the time," and "now that the Act on Protection of Secrets has been passed, there is no point in discussing it." Furthermore, he has also said that, "NHK’s reports on nuclear power plants should be in line with the government's official announcements." Although he withdrew the comments that he made in the beginning of his term, he did so only because he considered expressing his personal views at press conferences as inappropriate; he has not personally withdrawn them, meaning that he still holds these opinions. This is a crucial issue. I once criticized him for making such statements in a meeting once because they are wrong, not because they were made at a press conference. What he said are not matters of personal interests and preferences but directly effects NHK’s position as a public broadcasting corporation. Any opinions publicly expressed by NHK’s president are not private but that of NHK. In other words, because his personal views are unacceptable as president of NHK in any place and time, they go against the Broadcast Act (paragraph 2 of Article 1, which requires impartial broadcasting, and paragraph 2 of Article 4, which requires political fairness).

The requirements to become NHK’s president presented by the nomination committee states that the president must be a person of good judgement and have a personality that can gain trust from the general public. However, it does not oblige the president to comply with the Broadcast Act, which should be the bare minimum and is something the public demands. It is obvious in every respect that because of his personal views, Momii has failed to meet expectations since his inauguration. I have to admit that I was partially responsible for failing to dismiss him while he was in office, but I can hardly say that he is qualified to be reappointed. The nomination committee is supposed to discuss whether the current president is suitable as a candidate for the next president before finalizing the list of candidates. Since Momii fails to meet the required qualifications at this point, he must be the first to be removed from the list. If the nomination committee ignores this logic and should favor his reappointment, it would need to offer explanation that there was no better candidate. Yet, this would only deny the raison d'etre of the Board of Governors because it is saying that a person whose personal views go against the Broadcast Act could be president. Such situation would indicate the destruction of NHK’s governance structure.

As discussed above, the reappointment of Momii completely out the question. I want to add that the Board of Governors must put in effort in finding another candidate whom both the ruling and opposing parties (the general public) can unanimously approve, given the Board has requested Momii to work towards getting approval from both parties for the NHK budget.

Should we support NHK as our public property, even if we do not watch its programs?

The subscription fee issue is important for NHK as the issue concerns its reason for existence. The Broadcast Act imposes subscription fees on those who live in Japan with the assumption that the owner of a broadcasting receiver watches NHK programs. This assumption, however, is no longer realistic because more and more people now watch TV programs online. This is an issue common to NHK and commercial broadcasting stations. Although simultaneous online distribution of TV broadcast is still in its test phase in Japan, this trend will not change. In August, the Saitama District Court ruled that owners of mobile phones capable of receiving 1seg broadcasting are not considered to be owners of a broadcasting receiver, but NHK has not changed its position that owners of such mobile phones should pay subscription fees.

I believe that this is an issue of whether Japanese civil society is mature or not. Some European countries obligate subscription fees payment for their public broadcasting. For example, Germany collects subscription fees from each household, France collects subscription fees in the form of tax, and the U.K. collects subscription fees in the same way as Japan does, but imprisons those who fail to pay. We should not misunderstand here; France's state-run broadcaster is not manipulated by the government, even though it is operated with tax money.

If these measures taken in these European countries prove right, whether mobile phone owners are considered to own broadcasting receivers is not even part of the discussion. Rather than considering a subscription fee as a price for public broadcasting, the belief rooted in these European systems is that public broadcasting programs are valuable that every citizen should bear part of its operating systems, even if they do not watch them.

Public or common property is "social common capital," as proposed by the late professor Hirofumi Uzawa, which includes resources and systems that everyone considers as necessary components of society, such as nature, the environment, education, and parks, even if not provided for by law. Egocentric ideas such as “a love for mountains but not the sea because you hate swimming in it” are denied by common sense, a sense shared by everyone in society which differs from common knowledge. The quality of a society is measured not only by to what degree its members comply with law, but also by how much common property they share.

The discussion about paying subscription fees in Japan seem to be unproductive because while some people refuse to pay because they do not watch NHK programs, NHK’s response is, “we won’t allow people to watch our programs for free,” which is a lousy argument. Before raising subscription fees or obligating people to pay them, NHK should call for a national debate on its public role and repeatedly emphasize that it has made efforts to create worthy programs for the public than those of commercial TV stations (NHK needs to be determined not to participate in audience rating races with commercial TV stations with the exception of some programs). When I was a member of the Board of Governors, I proposed that the Board of Governors take the initiative in starting such a debate by setting up an informal panel of experts. The debate on mandatory subscription fees without serious discussions about the public role of NHK would only confirm that it cannot serve as a measure of Japanese civil society’s maturity.

NHK is ready to continue broadcasting from Osaka or Fukuoka at any time in case it becomes impossible to broadcast in the Tokyo area. I believe that each of us should be willing to support NHK as our public broadcasting station while properly evaluating its function and criticizing it whenever necessary.

The governance of NHK, which is significant for the discussions of its future, has serious flaws. I will not discuss the governance issue further here, but you can read my article about the issue (Tatsuo Uemura, "Governance of Japan Broadcasting Corporation (NHK) and Functions of its Audit Committee," No. 1, Vol. 91, Waseda Law Review, December 2015).

Tatsuo Uemura
Professor, Faculty of Law, Waseda University

[Research Interests]
Companies Act and Financial Instruments and Exchange Act (former Securities Exchange Act)

[Major Publications]
Companies Act Reform (published by Iwanami Shoten, Publishers)
Where Will the Companies Act Go? (co-authored and published by Nikkei Inc.)
Note: See the website of Global COE, Waseda Institute for Corporation Law and Society.

[Courses taught]
Companies Law and Capital Market Law

[Message to Students]
The studies of law, legal theory, legislation, and legal interpretation are changing day by day. If you think it is sufficient to just have textbook knowledge, you have not studied law in Japan.