KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Background and purpose

▶The Korean government has been pursuing regulatory reform and innovation. As part of this, a regulatory impact analysis system, a regulation registration system, and other similar systems have been implemented, but these systems have been criticized for numerous loopholes.

○ Current regulatory impact analysis has been criticized for inadequacy in analyzing targets and analysis criteria. That is, analysis has been only focused on individual regulations, rather than comprehensively analyzing regulatory impacts on the regulated industries. Also, in terms of analysis criteria, it overlooks the necessity and appropriateness of relevant regulations, and rather focuses on the economic cost and benefit.

- Regulation is connected to industrial supply chain. As a result, multiple regulations and supporting measures are combined to produce a comprehensive effect. Therefore, the regulatory feasibility should be analyzed and reviewed in terms of the comprehensive effect, as well as on individual regulations.

- Further, regulation is implemented not only for protecting, developing, and promoting industries, but also for public interest even if social and economic costs may incur. However, the existing regulatory feasibility analysis tool uses criteria only focused on economic cost-benefit analysis, overlooking the necessity or appropriateness of regulations. 

- In contrast, regulatory map not only enables a comprehensive analysis of regulations by giving a glimpse of the current status of overall regulation, but also an analysis of legal system. Since analysis of necessity and feasibility of regulations can be done when reviewing the regulatory feasibility, a research for regulatory mapping is necessary.

○ In addition, existing regulation registration system is only focused on collecting and managing information on individual regulations within the executive branch, the regulator. This puts the regulated at disadvantage in obtaining regulatory information, making it difficult for them to identify a clear path of the whole regulation process and coping with relevant regulation.

- Therefore, in order to eliminate inequalities between the regulator and the regulated, the regulatory information should be provided with a focus on the regulated. 

- Regulatory map makes it easier for the regulated to identify on which point of the regulation path has occurred a problem, or learn about a newly enforced or tightening regulation, helping them to cope with the regulations. In addition, it helps the regulator to obtain a comprehensive information on the entire regulations, thereby preventing overlapping or contradiction of conflicting regulations within the executive branch or between regulatory stakeholders.

▶ A regulatory map provides information with which regulatory feasibility can be reviewed from a comprehensive perspective, breaking the vicious cycle of uncertainty about technology and the market in preparation for the 4th Industrial Revolution, and enabling a transition of (or supplement to) the current regulatory system. Therefore, an in-depth research needs to be done.

▶ With the advent of the 4th Industrial Revolution, paradigm across the fields of society is changing, and accordingly, the broadcasting and telecommunications sector is going through a rapid development and change as well. However, the legal system related to broadcasting and telecommunications has been criticized for the failure of flexible response to such changes. Therefore, it is necessary to promote the relevant industrial growth by preparing legal and institutional improvement measures for the broadcasting and telecommunication regulations.

○ Broadcasting and telecommunications industry has a significant impact on society due to the nature of technology, and also have huge side effects. Therefore, to prevent unreasonably fierce competition in the broadcasting and telecommunications industry and to protect users from such competition, the need for regulation is recognized.

- As broadcasting and telecommunication is intricately interconnected with related industries as well as within the industry itself, the current legislation is not swiftly responding to the rapid changes in the broadcasting and telecommunications environment. This discrepancy between the environmental changes and legislation are causing numerous problems across the field of broadcasting and telecommunications. The first step for an effective solution to this discrepancy is to identify the current status of legal system. Therefore, it is necessary to study formulating a regulatory map that could serve as the basis in response stage by visualizing and providing comprehensive information.

- Broadcasting and telecommunications regulatory map is a new approach of regulatory reform to overcome the limitations of single and linear regulatory improvement policies. In other words, by encompassing the regulatory impact on the whole industrial sectors and presenting it for each industrial process, the map enables a comprehensive analysis of regulatory impacts with regard to the characteristics and effects of regulations that influence each broadcasting and telecommunications industry.

- For an efficient analysis of regulation, it is necessary to cross-check the regulated industries against other similar industries for each industrial process. By visualizing regulatory information across the whole industrial sectors, the regulatory map facilitates a comparison and review of the regulated industries against other similar industries, presenting a criteria of comprehensive review of regulatory impacts.

○The keyword of 4th Industrial Revolution is convergence, and the area where convergence is taking place most vibrantly is broadcasting and communications. With convergence of broadcasting and telecommunications, there is a growing need for a convenient tool for easily perusing the contents of numerous statues and regulations that are becoming more complicated and diversified. This raises a need for regulatory mapping. 

- Broadcasting and telecommunications sector is one of the most rapidly changing industries. In addition, with the advent of the 4th Industrial Revolution, the change will further accelerate. In this circumstance, countermeasures to address legislative issues in various regulatory fields expected to arise in such a swift change should be prepared.

- In other words, by formulating a regulatory map of broadcasting and telecommunications, it is necessary to conduct a comprehensive review of individual regulations and supportive measures encountered in the relevant industrial process, as to whether there is a need for a new regulation; if there is a considerable regulatory burden, what kind of support measures can make up for such regulatory burdens; and how to improve existing regulations. 

- In addition, a regulatory map for broadcasting and telecommunications industry could verify the necessity of maintaining, improving, or abolishing existing regulations, and further contribute to creating the standards for regulatory improvement for innovative growth of specific new industries, including the time for improvement or abolishment, or improvement directions of regulations in need of improvement or abolishment. 

 

Ⅱ. Main Content

▶ Environmental Change of Broadcasting and Telecommunications

○ Traditionally, broadcasting and telecommunications has been strictly separated in transmitting means, so the broadcasting content has been transmitted through a broadcast network, while the telecommunications content has been transmitted through a communications network. However, with development of broadcasting and telecommunications prompted by the growing internet and advent of the 4th Industrial Revolution, the Internet has become the primary means of transmission, and accordingly, viewers of broadcasting programs started to migrate from the traditional way of watching on a television set to using wired or wireless internet access. Therefore, the regulations of broadcasting and communications that were separated in traditional way need to reform to embrace both broadcasting and telecommunications sectors to reflect the changes in the industrial environment. 

▶ Regulation of Broadcasting and Telecommunications

○ The constitutional basis of regulating broadcasting and telecommunications is the principle of social State and the principle of cultural State

- The principle of social State refers to the State’s responsibility to guarantee a human life, real freedom, and equality of all citizens. Although broadcasting and telecommunications have a strong nature of public goods, they have been dealt with only in relation to market economy. This led to monopoly or oligopoly of broadcasting and telecommunication by a few, and the communications market has caused greater information gap and huge disruptions in ensuring the minimal level of decent living and social integration.

- Therefore, the convergence of broadcasting and telecommunications should be regulated in the direction of achieving social integration and ensuring the minimal level of decent living for all citizens by eliminating the information gap among the interested parties, and the principle of social State is a basis for such regulation.

- The principle of cultural State means the State shall guarantee cultural freedom to the maximum extent, actively promote cultural development, and ensure real cultural equality for its citizens. Today, culture is mainly supplied by means of broadcasting and communications, so to ensure the right to cultural equality and to promote cultural development, the State intervention in broadcasting and telecommunications services is necessary.

○ The legal grounds of regulating broadcasting and telecommunications include the Broadcasting Act, the Telecommunications Act, the Framework Act on Broadcasting Communications Development. 

- Traditionally, broadcasting and telecommunications have been separately regulated, and broadcasting has been mainly regulated based on the Broadcasting Act, while telecommunications have been regulated based on the Telecommunications Business Act. The content can be largely classified into economic regulation and social regulation.

- The specifics of economic regulation include regulation of entry, regulation of fee, regulation of competition, and regulation of ownership. Social regulation mainly covers content, and as telecommunications is more focused on transmission rather than content, content regulation is especially emphasized in broadcasting field. The specific content of social regulation in the broadcasting sector includes regulation of broadcasting programming, regulation of deliberation and resolution, and regulation of broadcasting advertisement in the Broadcasting Act.

○ On the other hand, with the development and convergence of ICT technology, the boundary between broadcasting and telecommunications is getting blurred, necessitating a unified regulatory system. Accordingly, the Framework Act on Broadcasting Communications Development and the Act on the Establishment and Operation of the Korea Communications Commission has been enacted.

- The Framework Act on Broadcasting Communications Development mainly covers the definition of broadcasting and telecommunications, development of broadcasting and telecommunications and increase of public welfare, promotion of broadcasting and telecommunications, broadcasting and telecommunications development fund, broadcasting and telecommunications technology standards, management of broadcasting and telecommunications disasters. 

- Besides, the Korea Communications Commission (KCC) has been launched in response to a new environment of convergence of broadcasting and communications, based on the Act on the Establishment and Operation of the Korea Communications Commission. KCC basically conducts administrative affairs related to telecommunications and broadcasting, such as policy-making related to telecommunications and broadcasting, recommendation of approval and permission, and deliberation of content. 

▶  Formulation of Regulatory Map in Broadcasting and Telecommunications

○ A regulatory map in the broadcasting and telecommunications field follows the procedure of :

① Examining the entire procedure and steps of regulations ② Setting up the standards through examination and analysis on the current states of related legislation ③   Organizing the classifications and systems of related legislation ④ Marking the legislative course of related legislation ⑤ Organizing and diagraming the regulations for each step ⑥ Setting up a hyperlink for the regulations in the Network Flow Chart, and diagraming (linking) the related legislation for each step ⑦ Applying monitoring tests on double regulations ⑧ Finally revising the regulatory map ⑨ Following the procedure of the completed regulatory map

○ The standards for categorizing the regulations are: ① Importance of the regulations ② Possibility to revise the regulations ③ Nature of the regulation-related legislation (Negative vs. positive/ Pre regulations vs. ex post regulations)

- The importance of regulations are decided by examining and scoring △ forcibleness, △ public utility, and △ purpose of regulations. Among them, the public utility of regulations could be vague, depending on each nation and society, leading to its limit on measurement and scoring. Therefore, this study borrows the concept of the public utility in the broadcasting Act. The details of public utility are examined at the view of independency, diversity, accessability, and objectivity. the diagram of detailed standards and criteria of the regulations are as follows.

 

Detailed Standards and Criteria for Importance of Regulations

 

Detailed Standards and Criteria for Possibility to Revise Regulations

 

- The nature of legislation is applied by examining whether it’s negative or positive, and pre or ex post regulation.

○ The regulatory map for the broadcasting and telecommunications categorizes following the standards above. This regulatory map classifies the Acts based on the Acts’ importance, possibility to revise, and nature (negative vs. positive/ pre regulation vs. ex post regulations), arranges the classified Acts based on the business procedure (start→operation→end) of a broadcasting and telecommunications operator, and marks the links between same legislation or enforcement decrees, other Acts, etc. 

○ The procedure of diagraming the above is: ⓛ Step 1: Applying figures, colors, sizes of bubbles by analyzing the regulatory importance (forcibleness, public utility, and purpose), the possibility to revise (number of related other Acts, same Acts, and regulation-related legal parties), and the nature of legislation ② Step 2: Formulating the regulatory map of dispersed charts based on the business procedure (opening, operation, end) and legislation types (Acts, enforcement decrees, enforcement rules) ③ Step 3: Diagraming the links between the Acts, enforcement decrees, and enforcement rules by mapping the linking procedure of the Act and its enforcement decree of the same legislation, which shows the fulfillment procedure of the broadcasting Act by a business operator ④ Step 4: Marking the fulfillment procedure of a business operator by showing signs and colors of links with other Acts. 

 

Marking the Linking Procedure of Legislation

  

Color Standards of other Acts

  

Ⅲ. Expected Effects

○ In the field of the broadcasting and telecommunications, getting more complicated and diverse, thanks to the 4th industrial revolution, formulation of the regulatory map is expected to  ① be used as the foundation for analyzing the appropriateness and necessity of regulations, going one step further from the linear analysis on economic cost benefits of the broadcasting and telecommunications field, ② protect users from the indiscriminate competitions of the business operators by showing the current states of regulations, also preventing doubled or contradictory regulations, and to ③ be used as the basic documents for founding the legal system of the broadcasting and telecommunications field by streamlining the complex regulations.