13. 04. 2009

ANEM – CRISIS LEGISLATION

ANEM is active in the area of creation of an optimal regulatory framework which would allow the media to function in accordance with market and democratic principles. There are many laws that should be changed, as well as new laws that should be adopted, but taking into account how long it would take to complete both tasks, at the same time it is also necessary to concentrate on the existing laws which can be properly enforced to improve the position of the media. Specifically, we propose some of the ways to advance the position of the broadcasters, which are especially important in this period of crisis:

1) Reduction of broadcasting fees

In accordance with the Broadcasting Law, the fees for program broadcasting are intended to provide funds necessary to guarantee financial independence of the Republic Broadcasting Agency. The Law stipulates that if money collected in this way is not sufficient for financing of the Republic Broadcasting Agency, the remaining amount must be provided from the budget; at the same time, if the collected money exceeds the necessary amount, the difference must be paid to the budget. The Republic Broadcasting Agency and the Government misinterpret the Law specifying the fees in such a way that instead of collecting exactly the amount necessary for functioning of the Agency (with mandatory reserves for unplanned expenses), they collect twice the amount, which results in these fees being highest in the region and practically representing an additional tax for commercial broadcasters, since the surplus amount (around 50%) is paid to the state budget.

Also, the calculation of the fees is being performed in an illegal manner: for years, only one instead of two criteria has been used to determine the fees. The fees have been set exclusively on the basis of the number of inhabitants in the area covered by the program, while the other criterion stipulated by the law (broadcaster's program concept, i.e. the origin and type of the program) – which would reduce the fees for those broadcasters who have their own production, broadcast more than just entertainment program and have social importance – has not been applied at all.

We demand two things, which can be achieved by proper implementation of the Broadcasting Law:
• reduction of the fees to the level necessary to cover regulatory expenses;
• implementation of two legally specified criteria for determination of the fee amount, since the second criterion (the type of the program) has not been applied at all.

At the same time, it is necessary to work on modifications to the Broadcasting Law which would stipulate that all collected surplus broadcasting fees (in annual review) must be paid to a special Fund for Development of Broadcasting and Creative Work in Radio and TV, which would have a separate account within the Agency. In this way, the fees collected from the media would be used for their development and not to increase the budget. The collected money would not be managed by the state, but the Agency, as an independent regulatory body. Legal provisions should prevent possible misuse of this money.

2) Closure of illegal broadcasters' stations

Even the existing laws provide the regulatory bodies with all the necessary authorization to punish illegal broadcasters, but they are not using it efficiently. Selective approach and slow procedures of closure of such broadcasters have additionally aggravated the position of legally licensed broadcasters. "Pirate" radio and TV stations produce harmful interference which hinders the work of legal broadcasters, while their knock-down prices constitute unfair competition.
We demand:
• serious and efficient implementation of legal measures by the Republic Broadcasting Agency and the Republic Agency for Telecommunications against non-licensed radio and TV stations – as soon as possible
• at the same time, modification of the Law, which would result in stronger measures against illegal broadcasters and wider authorization for the regulatory bodies, but in accordance with European standards to prevent the abuse of such measures.

3) Separation of broadcasting infrastructure from the RTS

Although the Broadcasting Law stipulates that broadcasting infrastructure (buildings, antenna systems, radio repeater systems etc.) shall not be considered the assets of the RTS that has been transformed into a public service broadcaster, the public service has continued to manage the total and complete capacity of the said infrastructure objects, using them for its own needs and leasing them to commercial broadcasters, which constitutes an abuse of its dominant position. The public service broadcaster sets the lease prices in its own internal price lists without any public consultations, without reviewable market analyses or any relevance to market conditions. As a result of this, lease prices for public service broadcaster's facilities far exceed prices of any other provider of similar services and often prevent minimal economic viability of broadcasting. Choice of alternative locations and service providers for broadcasting equipment is very limited, since the issued licenses for transmitters stipulate broadcasting from geographically precisely defined locations. As a rule, these locations for national coverage are facilities of the public service broadcaster.

We demand the following;
• separation of broadcasting infrastructure from the RTS into a separate company which would operate independently from the public service; this is possible in accordance with the existing law if implemented correctly
• price policy which would take real expenses into account; the burden of rebuilding of the infrastructure damaged during bombardment should not be shifted to commercial broadcasters in the form of high amounts to be paid for its use
• since the separate company would have a dominant position in the market of broadcasting services for commercial national broadcasters, it is necessary to define measures in accordance with the Law on Protection of Competition and the Law on Telecommunications which would establish price policy that would not abuse the dominant position
• the separation of broadcasting infrastructure must result in lower broadcasting expenses for broadcasters.

4) Modification of provisions related to advertising

Too strict regulations on radio and TV advertising represent an additional obstacle for broadcasters. Also, the public service broadcaster is allowed to use commercial sources of financing, which additionally hinders the work of commercial broadcasters.

We demand the following:
• harmonization of the Law on Advertising with the EU Audiovisual Media Services Directive (AVMS Directive), especially with regard to the wide definition of advertising in our Law (it should be more limited) and product placement, which is absolutely forbidden by our Law, unlike the AVMS Directive (it should be allowed under certain conditions);
• introduction of additional limitations for financing of public service broadcasting from commercial sources, together with measures which would increase the rate of collection of TV license fee. Specifically, we demand that the public service broadcaster be limited to broadcasting advertising only in advertising blocks between shows and in natural breaks within program, meaning that the public service broadcaster would not be allowed to "cut" its program to broadcast advertising.
• regarding the duration of TV advertising at the public service broadcaster, we demand proper implementation of the law – meaning 10% of total daily broadcast program, i.e. not more than 6 minutes of advertising per one hour of program, but in total on all channels (as the law stipulates), not 6 minutes on each channel (12 minutes in total) as is wrongfully interpreted at the moment.

5) Reduction of fees paid to collective organizations for protection of copyright and related rights

In accordance with the Law on Copyright, price lists of collective organizations for protection of copyright and related rights must be in proportion with the importance of the object of protection from the organizations' repertoire for the user's revenue. This proportionality has not been achieved in any way and collective organizations define their price lists independently, without any public consultations with users, without reviewable market analyses or relevance to market conditions. 

We demand the following:
• reduction of unrealistically high tariffs and their harmonization through a process of public consultation with users, with full support from the state, the Ministry of Science and Technological Development and the Intellectual Property Agency, with the aim to finally – as required by the Law – achieve proportionality of tariffs with the significance of the object of protection for user's revenue.

Collective organizations must prove such proportionality. It is not good enough to use prices accepted in other countries, because things which are proportional in those countries are not necessarily proportionate in our case. The size of the market, number of commercial stations in the market, as well as users' opinions, must be taken into account.