Padjajaran University scholar Adrian Rompis delivering his testimony for the Government virtually at the judicial review hearing of Law No. 32 of 2002 on Broadcasting, Tuesday (20/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Internet-based content or over-the-top (OTT) services is not clearly regulated in Law No. 32 of 2002 on Broadcasting because they are regulated in Law No. 36 of 1999 on Telecommunications, said Padjajaran University scholar Adrian Rompis, an expert for the Government at the judicial review hearing of Law No. 32 of 2002 on Broadcasting held by the Constitutional Court (MK) on Tuesday afternoon, October 20, 2020. The hearing for case No. 39/PUU-XVIII/2020 was carried out under strict adherence to the COVID-19 health protocols.

“The license for internet[-based] institutions is regulated in Law No. 36 of 1999 on Telecommunications, which is not in the same cluster [as the Broadcasting Law]. [Such institutions] are telecommunications operators for services, meanwhile broadcasters are special telecommunications operators,” the broadcasting law expert explained.

Also read: RCTI and iNews Question Regulation on Internet Broadcasting 

Adrian believes OTT services is far removed from broadcasting. He said broadcasting content monitoring is done by the Indonesian Broadcasting Commission (KPI), as stipulated in the Broadcasting Law, since the request for broadcasting is filed, in which the content to be broadcasted is attached for review. On the contrary, OTT services only rebroadcast content of other broadcasters. He believes they are different, so that the Petitioners’ request that the phrase “internet[-based] broadcasters” be added to Article 1 number 2 of the Broadcasting Law shouldn’t be granted.

“’Internet[-based] broadcasters’ cannot be mandated to (be included) in the general provisions (of the Broadcasting Law). Broadcasters here is the parties that make broadcasting content or only rebroadcast content from others, and we cannot match it with the term in the Broadcasting Law,” he said before the justices led by Chief Justice Anwar Usman.

Definition for Broadcasting 

Adrian also said there are three phrases in the provision that the Petitioners challenge: “radio frequency spectrum,” “simultaneously and synchronously,” and “received with a broadcast receiver.” He added that the arrangement of the radio frequency spectrum was based on the nationality principle. Law No. 5 of 1964 stipulates that telecommunications activities shall be controlled and organized by the state because Article 33 paragraph (2) of the 1945 Constitution stipulates that production sectors that affect the livelihood of a considerable part of the population shall be controlled by the state.

"In Law No. 3 of 1989, this philosophy was expanded by adding that the object of radio frequency spectrum is a limited natural resource. This philosophy still underlay the birth of Law No. 36 of 1999. However, in the context of telecommunications development, Law No. 36 of 1999 divides the operation of communication into three: telecommunications networks. telecommunications services, and special telecommunications," he explained. 

Also read: House: OTT Services Not among National Broadcasting System 

The license for radio frequency spectrum and satellite orbits are regulated by the Government Regulations No. 52 and No. 53 of 2000. In Article 9 of Law No. 36 of 1999, broadcasting is under special telecommunications, which consists of three activities: for personal purposes, for state defense and security, and for broadcasting purposes. Government Regulation No. 52 of 2000 states that special telecommunications operators for broadcasting purposes are required to build their own networks as broadcasting facilities and transmission facilities for broadcasting purposes. Meanwhile, Government Regulation No. 53/2000 regulates radio frequency spectrum license for broadcasting activities

“The regulations on broadcasting are based on Law No. 24 of 1997. However, the law couldn’t be implemented because there were attempts to revise [the law]. One of the bases for the revision was the provision of Article 7 that broadcasting is controlled by the state, and the guidance and control is carried out by the government. At that time this was considered very detrimental to public interest because the state adhered to an authoritarian principle. Because the radio frequency spectrum is in the public domain, it a public interest. Government intervention is minimal, minimized. This is the basis for the birth of Law No. 32 of 2002,” he explained.

Adrian added that broadcasting monitoring is done by the KPI as a people’s representative. Law No. 32 of 2002 means that the public carries out broadcasting activities. This issue had been brought to the Constitutional Court before, which decided on a division of authority.

"The KPI’s authority is only restricted to content, while other authorities are related to broadcasting, outside of content. Another problem during the formation of Law No. 32 of 2002 was conglomeration. Conglomeration must be prevented so that broadcast content that reach the public isn’t influenced by the government or capital owners,” he said.

Also read: Expert: State Must Regulate OTT Content 

The Petitioners of case No. 39/PUU-XVIII/2020 are PT Visi Citra Mitra Mulia (Inews TV), represented by executive director David Fernando Audy and director Rafael Utomo (Petitioner I), as well as PT Rajawali Citra Televisi Indonesia (RCTI), represented by directors Jarod Suwahjo and Dini Aryanti Putri (Petitioner II). Their legal team is Taufik Akbar and peers. They requested a material review of Article 1 number 2 of the Broadcasting Law, "Broadcasting means an activity of broadcasting through a transmitter and/or transmission facilities on land, in the sea, or in space by using radio frequency spectrum through air, cable, and/or other media to be received simultaneously and synchronously by the public with a broadcast receiver." 

They argued that the provision of Article 1 number 2 of the Broadcasting Law has caused constitutional damage for them because it has led to unequal treatment between the Petitioners as conventional broadcasters using radio frequency and broadcasters using the internet such as OTT services. 

They believe that because there is no legal certainty whether internet broadcast such as the a quo OTT services falls under broadcasting as regulated in Article 1 number 2 of the Broadcasting Law or not, so far internet broadcast such as OTT services is not bound by the Broadcasting Law. Because internet broadcasters are not bound by the Broadcasting Law, the Petitioners believe it has caused unequal treatment.

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
PR: Andhini S. F.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 10/22/2020 13:52 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.