Japan Institute for National Fundamentals

　　　　　On December 6, Grand Bench of the Supreme Court made a ruling on a contract with Japan Broadcasting Corporation, better known as NHK, for receiving television transmission. In this case, NHK sued a man in 2011 for refusing to conclude a TV reception contract with NHK and pay a fee as requested by the public broadcaster. I have served as defense lawyer for the man.
　　　　　Paragraph 1 of the Broadcast Act’s Article 64 provides that “persons installing reception equipment capable of receiving the broadcasts of NHK shall conclude a contract with NHK for the reception of the broadcasts.” At issue in the case were whether the provision binds TV set owners to conclude TV reception contracts with NHK; whether the binding violates the liberty of contract and the principle of no taxation without law, going against the constitution; when and how the contract is established; and how far NHK can ask TV set owners to retroactively pay TV reception fees.

Compulsory fee payment suspected as unconstitutional
　　　　　Given the legislative history of the Broadcast Act and the absence of penalties for the refusal to conclude a contract or of an explicit provision requiring TV set owners to pay reception fees, many jurists have interpreted the provision as a discretionary and nonbinding. This is because the provision, if binding, violates the liberty of contract and the principle of no taxation without law by forcing such fees to be collected like tax. I made this point in the trial.
　　　　　The Supreme Court judged that the provision can force TV owners to conclude contracts to pay TV reception fees to NHK. Its ruling said that the Broadcast Act aims “to ensure freedom of expression through broadcasting by guaranteeing the impartiality, truth and autonomy of broadcasting” and a dual system consisting of private broadcasters and NHK as a public broadcaster was adopted to achieve the aim. It also said that NHK is financed by TV reception fees paid by TV set owners unlike private broadcasters financed by advertisement income in order to be free from control or influences by any specific individuals, organizations or government agencies.
　　　　　Given that even private broadcasters are required to ensure the impartiality of broadcasting, however, none can take advantage of the aim of the Broadcast Act to justify binding TV set owners to conclude TV reception contracts with NHK. Furthermore, I have to argue that allowing TV reception fees to be collected like tax without legislative procedures runs counter to the constitution.

Forcing TV set owners to retroactively pay fees for decades
　　　　　Rejecting NHK’s claim that TV reception contracts be automatically considered established when NHK offers to conclude them, the Supreme Court said those refusing to conclude TV reception contracts be forced to do so through lawsuits. It thus decided that those contracts are established when rulings ordering TV set owners to accept those contracts are finalized. The problem is that the top court allowed NHK to force TV set owners to pay TV reception fees retroactively to the date for installing TV sets. TV set owners who have failed to pay TV reception fees while having concluded TV reception contracts with NHK may be required to pay fees retroactively for up to five years because claims to fees for earlier years are extinct under the prescription. If TV owners have not concluded such contracts, however, they may be required to pay fees even for decades retroactively. This is too unreasonable.
　　　　　The Broadcast Act was enacted when NHK was the only broadcaster in Japan under Allied occupation. At present, numerous private broadcasters exist, allowing TV viewers to choose TV channels. NHK for its part is now required to reconsider fundamentally its financing to secure its financial base. The latest Supreme Court ruling endorsed suspiciously unconstitutional treatment, allowing it to continue for the immediate future.

Katsuhiko Takaike is an attorney and Vice President of the Japan Institute for National Fundamentals