방송의 공공성과 구조규제에 대한 비판적 검토

Korean broadcasting acts are of regulation. Especially the Broadcasting Act includes various regulations such as structural, behavioral, and mixed. Public interest, publicness, and fairness are abused as grounds for the regulation. Broadcasting regulation is commonly legitimated by the specificity of broadcasting. Traditionally, spectrum scarcity was considered as a technical limitation of broadcasting which other media don’t have. However, the technical limitation has been overcome by recent developments in the broadcasting and communication technology. Other ones, mentioned as the specific feature of broadcasting, are powerful influence and democratic function of opinion making. The influence of new internet media such as Youtube, Facebook, Naver etc. is as much powerful as that of broadcasting. Democratic function of opinion making is the function every media has, not the specific one that only broadcasting has. Unless broadcasting has its own specificity, the rationale that distinguishes the freedom of broadcasting from the freedom of speech has no ground to stand upon. Freedom of broadcasting is just a part of freedom of speech, which is realized through broadcasting. Freedom of broadcasting is consisted of freedom of establishing and managing broadcasting station, programming, and delivering contents. The most controversial part is freedom of establishing broadcasting station. If freedom of broadcasting is considered not as a right, but as an institutional guarantee, freedom of establishing shall not be accepted. However, like freedom of speech, freedom of broadcasting has the significance of existence when it stands as a subjective right. It is reasonable to realize subjective freedom of broadcasting and admit the right to establish broadcasting station by a private individual. Even so, considering publicness of broadcasting, the right to freely establish broadcasting station could be restricted. In this case, the principle of proportionality from the Constitution Article 37 (2) should be applied. In the Announcement of Sponsoring for Broadcast case in 2003, the Constitutional Court considered freedom of broadcasting in the perspective of extremely objective institutional guarantee. Considering recent developments of the broadcasting and communication technology, it is not valid anymore and should be abolished. Korean broadcasting system is dualistic where public service broadcasting stations such as KBS, EBS, MBC and numerous private broadcasting stations are running harmoniously. Under this dualistic system, the public service broadcasting stations should supply basic programs for the whole nation. By contrast the private parties have freedom to establish broadcasting stations and air programs. Since structural regulations such as entry regulation or ownership regulation are excessive in the Broadcasting Act, it should be deregulated. The concern about media concentration could be solved by the audience share regulation, which was introduced in the Broadcasting Act revised in 2009.