Marius Lukosiunas. Expert Opinion on the Principles of the Organization and Functioning of Non-governmental Public Body on Licensing of TV and Radio Broadcasting in Russian Federation

^{Expert Opinion on the Principles of the Organization and Functioning of
Non-governmental Public Body on Licensing of TV and Radio Broadcasting in
Russian Federation

Marius Lukosiunas,
Associated professor, Vilnius University, Institute of Journalism.
Vilnius, Lithuania
September 30, 2003

General

The below presented text analyses draft Principles of the organization and
functioning of non-governmental public body on licensing of TV and radio
broadcasting (further Principles) for compliance with good practices and
international standards. The copy of the Principles (see Annex 1 for English
copy and Annex 2 for Russian copy) has been provided by the Moscow Media Law and
Policy Institute. The purpose of the following analysis is to provide an expert
opinion as well as some recommendations in the framework of the TACIS project "Promoting
Independence of Regional Mass Media in Russia".

Section 1

Organization of the public body on licensing have to adhere to a certain
principles widely accepted in international law. The cardinal aim of such bodies
is to ensure freedom of expression and information in the sector they regulate.
In Para 1.2 of the Principles it is stated that their aim is to ensure
protection of freedom of expression as well as the rights of consumers,
producers/distributors of audiovisual material and “implementation of
governmental policies in the licensing and TV and radio broadcasting”. It seems
to us that the latter principle (governmental policies) has to be separated from
the principle of ensuring freedom of expression for exactly the purpose that
governmental policies very often come into contradiction with the principle of
freedom of expression. Thus it is recommended to split Para 1.2 and talk about
ensuring freedom of expression and implementation of the government policies in
the area of TV and radio licensing separately. Otherwise it might create
dangerous impression that future law would try to establish correlation between
ensuring freedom of expression and government policies in the area of
broadcasting and the expense of the former
In addition, taking into account Russian legal tradition, it seems to us that
the principle of ensuring freedom of expression has to be spelled out more
decisively. Legislation establishing regulatory bodies should set out clearly
the policy objectives, which should include promoting respect for freedom of
expression, diversity, accuracy and impartiality, and the free flow of
information and ideas. In addition it is worth mentioning in the principles that
broadcaster has to be protected from the State as well as
political and commercial interference (italic - M.L.). The law has to ensure
this protection. The principles of the law have to spell it out in a specific
and explicit manner.

Recommendations:

- Principles have to reiterate that the future law will be based on the
values of freedom of expression diversity, accuracy and impartiality.

- Principles have to protect broadcaster from the State as well as
political and commercial interference.

- Para 1.2 has to be split in order to reiterate that freedom of
expression and government policies in the area of broadcasting are two different
objectives of the future law and neither of them is going to be made more
important at the expense of the other.

Para 1.3 states “Commission acts in the interests of the society and
functions independently within its powers” (italic M.L.). Independence of
such bodies is crucial in defining the character of laws on licensing. It is
well known that bodies with regulatory powers over the electronic media should
be independent of government. The Council of Europe Recommendation on the
Independence and Functions of Regulatory Authorities for the Broadcasting Sector
states that Member States should establish “independent regulatory authorities
for the broadcasting sector” and “include provisions in their legislation… which
enable them to fulfil their missions in an effective, independent and
transparent manner.” (ARTICLE 19, Access to the Airwaves: Principles on Freedom
of Expression and Broadcast Regulation (London: March 2002). According to
General Principles published by Article XIX (www.article19.org) institutional
autonomy and independence of such bodies should, among other ways mentioned in
the principles, be guaranteed and protected by law in the following ways:
- explicitly in the legislation which establishes the body;
- by a clear statement of broadcast policy as well as of the powers of the
regulatory body;
- through the rules relating to membership;
- by formal accountability to the public through a multi-party body;
- and in funding arrangements.

Section 2

The details provided in the Principles and outlining the intentions of the
future law regarding the organization and functioning of the Commission have
been presented in Section 2. Analysis of this section might give an
understanding to the level of independence to be granted to the Commission by
the future law.
Para 2.1 explains how the Commission has to be constituted. We think that the
manner how the body is to be formed doesn’t adhere fully to the criteria, which
would guarantee the independence of the Commission. It states that the highest
bodies of legislative and executive branches of state power are to constitute
the body by confirming the candidates nominated by public and academic
organizations. The first and the second branches of government are granted the
responsibility to appoint the members of the body to regulate the fourth estate.
Hereby it is not clear why the authors of the Principles have selected only two
branches of the government - legislative and executive. Why did the Principles
miss out on the judiciary. Is Supreme Court less competent then Ministry of
Telecommunications in the area of guaranteeing independence of the media?
Further on, there is no clarity regarding the status of public organizations.
Could these be political parties or affiliates? If not, it should be stated
explicitly in the Principles. In addition it is recommended that Principles
should require these public organizations to be listed in the law, but not left
for the discretion of the executive branch.
Para 2.2 outlines the requirements of eligibility of the members of the
Commission. The criteria of the incompatibility outlined in the principles looks
insufficient to guarantee independence of the Commission with regards to
possible interference of commercial interests. Excluding individuals on the
basis of them being the founders or the participants of the broadcasting
organizations leaves the door wide open to commercial interference. Such
definition of incompatibility doesn’t cover individuals who, for example,
receive not regular payment from or has directly or indirectly, significant
financial interests in broadcasting organizations. Comment regarding shares
doesn’t cover the problem of commercial interference either.
Description of the functioning of the members only as “permanent” also
doesn’t seem sufficient to guarantee their financial independence. We suggest
the Principles should reiterate that rules related to payment and reimbursement
of the members should be set out clearly in the law in a manner that does not
allow for discretion in relation to individual members.
In our opinion Section 2 has also to include provision on the principle of
transparency of the functioning of the Commission as well as to which
institution Commission should be accountable to; and how this accountability has
to be implemented (annual report to the Parliament, for example, made available
to general public).

Recommendations:

- To include judiciary along the executive and the legislative branches of
the government in appointing the members of the Commission.

-
- To clarify what do public organizations mean.

-
- To reiterate in the Principles that public organizations to nominate the
candidates are to be listed in the law.

-
- To decrease the possibility of commercial interference by stating the
individuals who hold a position in, receives payment from or has, directly or
indirectly, significant financial interests in telecommunications or
broadcasting are not eligible to be appointed as members of the Commission.

-
- Rules relating to payment and reimbursement of the members of the
Commission should be set out clearly in the law

Section 3

Para 3.1 addresses the competencies of the Commission. Principles state that
Commission has:
- participatory role in the elaboration of national policy in the
sphere of TV and radio broadcasting
- implementation of the governmental policy in the sphere of TV and
radio licensing (italic M.L.)
It is not quite clear what is the difference between national and
governmental policies if there is any. It could be that confusion derives from
the discrepancy in the translation from the Russian version of the text (see
annex 1 and 2). In any case it has to be clarified.
Para 3.2.1 states: “Commission shall work out and approve the conditions for
the obtaining of licenses.” Principles (even though these are just principles of
the future law) should be more detailed in addressing the issue of how the
licenses were to be obtained. In our opinion definitions of eligibility,
licensing process and criteria of the assessment of the applicants are essential
for the character of the law thus have to be outlined in the Principles. It also
has to be pointed out that the Principles might include a requirement for
application hearings to be held publicly.
Licensing process could be identified as the area where every detail counts.
Thus below to assist the authors of the Principles we provide detailed
recommendations for the legal texts published by Article XIX (www.article19.org)
regarding the licensing process:

Licensing Processes:
1. The process for obtaining a broadcasting licence should be set out clearly
and precisely in law. The process should be fair and transparent, include clear
time limits within which decisions must be made and allow for effective public
input and an opportunity for the applicant to be heard. It may involve either a
call for tenders or ad hoc receipt by the licensing body of applications,
depending on the situation, but where there is competition for limited
frequencies, a tender process should be utilized.

Licence applications should be assessed according to clear criteria set
out in advance in legal form (laws or regulations). The criteria should, as
far as possible, be objective in nature, and should include promoting a wide
range of viewpoints which fairly reflects the diversity of the population
and preventing undue concentration of ownership, as well as an assessment of
the financial and technical capacity of the applicant. No one should be
required to pay in advance for a licence they have not yet received,
although a reasonable administrative fee for processing applications may be
charged.
Any refusal to issue a licence should be accompanied by written reasons
and should be subject to judicial review.
Where licensees also need a broadcasting frequency, they should not have
to go through a separate decision-making process to obtain this frequency;
successful applicants should be guaranteed a frequency appropriate to their
broadcasting licence.
Successful applicants should have the option of undertaking transmission
themselves or of contracting transmission services.

In addition we have to point out that if any exceptions in the processes of
licensing are to be made they have to be clearly and specifically spelled out in
the law (hereby we are referring to, for example, a possible exceptions for the
public broadcaster).
Para 3.2.3 addresses Commissions powers in obtaining information. In our
opinion it has to be more specific on what kind of information is “necessary for
the fulfillment of its functions” (what about information related, for example,
to commercial secrets).

Recommendations:

- To clarify the discrepancy between national and governmental policy.

- To outline principle of eligibility (who is eligible and should there be
any exceptions from the general rules of obtaining the license) in very general
terms.

- To touch upon licensing process (should be set clearly in law and not
left for the discretion of the Commission) in very general terms.

- To describe Criteria of the assessment of the applicants (should be
outlined in advance) in very general terms.

- To find more specific way to describe what kind of information
Commission could request from the broadcasters

Sections 4 & 5

No comments or recommendations.

Section 6

Para 6 of the Principles deals with the sensitive area of sanctions. In our
opinion hereby Principles have to begin with the general policy statement
outlining what is the basis for applying sanctions. We would suggest to state
clearly that the future law would apply sanctions only, first, in case of a
breach of clear legal requirement or license condition. Second, the process of
applying the sanctions will be open. Third, the broadcaster should be informed
in written about the decision regarding sanctions agreed by the Commission. And
last, but not least, the broadcaster has to be given a chance to present its
case in front of the Commission (or quasi judicial body, if such has to be
established).

Section on sanctions provides us with a mixed impression. From one hand, it
both outlines the range as well as gradual character of sanctions. From the
other hand, there is plenty of room to elaborate on the system of sanctions
outlined in the Principles. According to the latter there are only two sanctions
- warning and penalty (fine) Commission could prescribe. Introducing such
sanctions as mandatory publishing of a) retraction of information or b)
commissions order, might give more room for the balancing public interest with
broadcasters interest as well as give Commission more tools for the gradual
application of the sanctions.
The whole business of recall of a broadcaster’s license is not defined in a
precise and clear manner. It is not clear does recall mean, first suspension and
then revocation of the license or both. It is not stated as a matter of
principle that request to court for suspension and revocation could be applied
only if broadcaster has been repeatedly found to have committed gross abuses and
other sanctions have proved inadequate to redress the problem. In addition one
might argue that Commissions right to go to court in order to recall the license
is not a sanction as such unless law forbids anybody else to do that.
Translation discrepancies add to the confusion. Russian text of the
Principles indirectly implies that request for recall could be submitted to the
court after one warning and one penalty sanction (Italic M.L.), contrary
to the English text, which does not give such an impression.

Recommendations:

- To state that the future law would apply sanctions only in case of a
breach of clear legal requirement or license condition,

- To state that the process of applying the sanctions will be open,
- To state broadcaster should be informed in written about the decision
regarding sanctions reached by the Commission.
- To elaborate on the system of sanctions in order to expand their range as
well as possibility to apply these sanctions gradually
- To defined provisions on recall of the license in a more precise and clear
manner

Section 7

No comments or recommendations

Conclusions

Principles of the legislation presented for our analysis goes beyond current
RF legislation (law on Mass Media, 1991; Regulation on Licensing, 1994;
Regulation on Competition, 1999) in implementing the norms accepted in
international law.
Principles suffer from a number of shortcomings. Values on which activities
of the Commission are based should be highlighted. A number of legal
requirements, mentioned above have to be included into the law. The problem of
commercial interference has to be addressed. A number of provisions have to be
clarified or elaborated.
Translation discrepancies have to be eliminated.

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