Development and Current Issues with the NHK Receiving Fee System

Abstract

The NHK broadcast fee system is almost a century old. Originally limited to radio signals, it was later reformed after the war under the influence of the allied forces. The result was a mixed system that looks to fund the public broadcast while providing access to information. However, since the Broadcasting Law does not establish an obligation to pay, with Article 64 instead setting an obligation to enter a contract with NHK, the nature and scope of the system have come into question. This paper analyses the development of the fee system as well as the latest trends in the case law. Since 2006 NHK has opted to sue individuals and business that have not entered the contract despite their obligation to do so. Thus, the courts have been called on to interpret both the law and the receiving fee contract itself, which in turn gave rise to a scholarly debate on the matter. Indeed, since the law does not actually provide for the contents of the contract, leaving this issue to NHK and the Cabinet, many issues have been subject to debate regarding, for instance, the person who must enter the contract, the prescriptive extinction period applicable to the NHK claims and the possibility of technologies besides television falling under the scope of the law. On one hand, NHK tends to make claims that will produce the best economic benefit for the corporation, with the outcome that at times it brings claims which seem outlandish. On the other hand, the public nature of the service provided by NHK cannot be denied, and thus the issue of funding is one that cannot be ignored.

The courts, for their part, tend to favour NHK, which raises question as to the nature of the contract. While the law does establish that individuals who have installed equipment capable of receiving the NHK broadcast must enter into a contract, the contract itself is no different from any other private contract. In fact, it is a classic example of an adhesion contract. Therefore, under general principles of contract interpretation, any burden that arises from contractual ambiguities should be borne by NHK. In 2017 the Supreme Court had to rule, amongst other things, on the constitutionality of the obligation to enter the NHK fee contract as set by the Broadcasting Act. The result was a decision that gave NHK the legal backing to continue their claims, but the ruling also raised questions as to the scope of the contract.