Who’s Who Legal spoke to Sarah Herbert, head of legal and regulatory at Commercial Radio Australia concerning her role within the industry body and legislative changes within Australia. Herbert has now been working at CRA for five years; previously she practised at Covington & Burling in the London and Washington, DC, offices.
Name: Sarah Herbert
Position: Head of Legal and Regulatory
Company: Commercial Radio Australia
Commercial Radio Australia is the national industry body representing Australia’s commercial broadcasters. Established in 1930, just five years after commercial radio broadcasting began, Commercial Radio Australia now has 260 members representing 99 per cent of the commercial radio industry. CRA advises its member states on regulatory issues and lobbies government on their behalf for legislative changes.
Radio is an important social tool connecting listeners regionally, nationally and internationally. Commercial radio first entered households in the 20th century and continues to transform itself, keeping apace with technology. It has been adapted to be listened to in cars and on mobile devices, while the advent of digital radio has allowed for an increased number of radio programmes to be transmitted in a given spectrum, improved audio quality and eliminated fading problems.
In 2009, CRA oversaw the roll-out of digital radio in metropolitan Australian cities. The project involved setting up joint venture companies, in which the ownership of the digital radio operational facilities was vested, as required by the Radiocommunications Act 1992. They also liaised with the Australian Competition and Consumer Commission in developing an access undertaking and agreements governing the use of broadcast spectrum. CRA is currently preparing for a similar project rolling out digital radio to regional areas in Australia. Digital radio continues to grow in popularity with listeners – according to CRA there are now 1.3 million people listening to DAB digital radio each week in the five state capitals.
Tell us about your role.
I am head of legal and regulatory for Commercial Radio Australia. CRA represents the industry across a wide variety of issues, including broadcast policy, industry regulation, copyright, advertising regulation, industrial relations, audience surveys and digital radio. CRA lobbies the government in relation to legislative changes that affect the radio industry, and also organises national industry events, such as the Australian Commercial Radio Awards and the Annual National Radio Conference.
As head of legal and regulatory I advise our member stations on regulatory issues, in particular broadcasting, copyright, digital and content regulation. I keep members up to date with changes, circulating briefing notes, strategic proposals and advice as necessary. I am the point of contact for member stations seeking advice on regulation that affects the industry.
My role also includes work related to the development of broadcast policy, often seeking or opposing legislative change. I draft submissions on behalf of the industry in response to inquiries, such as the 2011 Convergence Review, in addition to numerous federal and state/territory reviews. I also appear before Senate Committee inquiries into various issues, usually relating to content and advertising in radio.
I am also involved in negotiating and finalising key industry agreements. The industry has blanket music licensing agreements with collecting societies representing composers, songwriters and record labels. As an industry body, we negotiate these licences, in conjunction with our members.
Describe a typical day.
As you can see from the breadth of areas covered above, the most typical aspect of any day is its unpredictability. Currently, I am spending a significant amount of time drafting Codes to be inserted into the Commercial Radio Codes of Practice, to cover new areas of regulation relating to advertising. This involves dealing with our members, the regulator and the general public. I am also drafting a submission to the Australian Law Reform Commission Review of Copyright and the Digital Economy outlining the industry’s comments on questions raised by the Government on the impact of the digital economy on copyright regulation. In addition to this, I generally take several calls a day from member stations, seeking advice regarding broadcast content.
What size is the legal department?
The CRA department includes three people. There are an additional 10 or so lawyers across the member stations with whom I work closely.
Tell us about any recent special projects you have been working on. Which law firms did you hire?
The industry has recently been involved in two major pieces of litigation. The first was a case in the High Court, which concerned a challenge made by the Australian record industry to a provision in the Copyright Act, on the basis that it breached the Australian constitution. The High Court unanimously held in favour of the radio industry, finding that the provision was constitutional. The second is a full Federal Court Appeal, again brought by the record industry, relating to the payment of additional copyright fees for simulcast broadcasts on the internet. The radio industry won this case at first instance and is awaiting the Appeal decision.
We hired Minter Ellison and senior counsel to conduct the litigation.
Do you always tend to use the same law firms/ individual?
No, we use a number of different law firms, each of which are specialists in different areas. We use Ara Margossian of Webb Henderson for all work related to digital radio, commercial contracts and competition issues. Paul Mallam of Mallam Law provides regulatory advice, particularly on trade practices and regulatory issues. Minter Ellison deals with our copyright issues.
What skills and qualities do you require in external counsel?
Three qualities stand out for me: intelligence, responsiveness and pragmatism. Much of what we do is complex and it is immediately clear if counsel is ill equipped to deal with the subject area. The nature of the advice is also important; we need practical advice we can easily implement and convey to our 260 member stations. Ara Margossian and Paul Mallam stand out as clever, quick and commercial lawyers who quickly grasp the heart of an issue and provide prompt and practical advice. They also understand the commercial radio industry to a level that is unusual in external counsel. In this sense, dealing with good external counsel should feel similar to dealing with an in-house colleague.
Have there been any recent legislative changes that have affected your industry? How has the CRA adapted?
The most recent legislative change that has affected our industry was the change to the local content laws in April 2012. We have been lobbying for changes to the content requirements imposed on regional radio for many years. The previous requirements were extremely onerous, and included a provision that regional radio stations were not allowed to reduce their staff numbers following a corporate restructure or change in ownership. This obligation to maintain existing staff numbers applied ad infintum, with no end date. The law was changed to place a two-year limit on that requirement and to modify several other equally onerous obligations. This was an extremely positive legislative change for the industry, which has made life much easier for many of the regional radio stations in Australia.
What is the most challenging aspect of your job? How do you keep up to date with regulatory developments affecting your business activities?
The most challenging aspect of my job is also the most satisfying one: the breadth of areas on which I advise. When I joined CRA five years ago, I was primarily a copyright lawyer. Now, my experience spans broadcasting regulation, advertising, trade practices, commercial agreements, policy work and countless other issues that come up from day to day. It is sometimes difficult to reconcile such variety with a depth of legal analysis in each area. This is where good external counsel are invaluable in adding their expertise.