New Broadcasting Code needs urgent revision. Relevant analysis and commentaries, part III

Recently, the Foundation Soros – Moldova posted on its site www.soros.md the study “Broadcasting Code of the Republic of Moldova: Analysis and Commentaries” carried out by a group of independent experts as part of a project financed by the Foundation. In the first two parts presented last week, the news agency Info-Prim Neo referred to the most important problems spotted by experts in the Code’s text regarding the constitution and functioning of the public broadcasting regulatory agency – the Broadcasting Coordinating Council – as well as on the regulation of the activity of public broadcasters in Moldova. The last part of the series of commentaries centers on the deficiencies reading the private broadcasters. [Private broadcasting is like inexistent from legislative standpoint] The study authors consider that the private broadcasting in Moldova appears as phenomenon in the absence of a legal framework in the area. The broadcasters began to work under a legal framework after the Law on Broadcasting took effect on 14 December 1995. This stage was characterized by the diversification of sources of information and of the patterns of ownership in the field. The ten years guided by the respective law saw the “initial accumulation” of capital in private broadcasting, the notion of capital referring in a way or another to the financial, economic, managerial, creative, normative and other aspects. But, as other “initial accumulations”, the respective stage was for the Moldovan broadcasters a period of incertitude, which did not facilitate the natural development of the area. According to the authors, the reason resides in the eclectic legislation and in the mentality, inherited from the old regime, of all the authorities that were in power in the independent Moldova, which accepts with difficulty other methods of regulating the press than the ones of subordination and control. As legislative document, the Broadcasting Code represents a step forward. Yet, this step could not meet the expectations and necessities of a period, which we want or announce as a turning point, of European integration, of acceptance of the values of the democratic world. This refers first of all to the functioning framework of the private broadcasters. In addition, there are no many grounds to hope that the mentality of those elected to decide the fate of the broadcasting in compliance with more polished legislative stipulations has changed significantly. In this respect, the new legislative framework does not solve issues that shape a vigorous broadcasting, as indispensable element that promotes a democratic and prosperous society. In particular, the Code does not clearly stipulate the role and place of the private broadcasters in the national broadcasting system, does not identify its specific features in relation with the public broadcasters, does not fix stimulatory mechanisms for harmonizing the private and public interests. If the notion of “public broadcaster” generally includes all the key features of a public broadcasting institution regulated according to the European standards, the notion of “private broadcaster” is formulated in an inadmissibly simple manner and reduced the role of activity for private interest to business. This is neither correct nor true. It seems like the legislators excluded the characteristics of public institutions from the notion of private broadcaster with the aim of avoiding an identical defining of two different notions. They left it out but did not introduce anything instead, either because they did not know how or because they had certain interests or were guided by the old mentality. However, the definition does not include the essential elements of the notion, as these are not fixed, interpreted, normalized in the legislation. This is one of the reasons that make the experts to consider the Code as inconsistent from this viewpoint. The danger of the situation consists in the lack of clear regulations in an extremely sensible area, which can give birth to different abuses, with the Code devoting an entire chapter to the private broadcasters – Chapter VIII. The classification of the broadcasters is also incoherent. The public broadcasters, which as it is claimed cannot be local, are discriminated in certain cases. In other cases, the public character of the product is not set for the private broadcasters, and their right to be national and, respectively, to use the six national radio broadcasting frequencies and the five national television frequencies stipulated in article 36, paragraph (4) are not fixed. The authors consider that the things would be clearer for the legislators and for the broadcasters and society if the legislation in the area did not abstract (or neglect) the categorization of the broadcasters accepted in the world. In such a way, the Code does not include the category of communitarian broadcasters. These, as a rule, take over and carry out a part of the functions, which the public broadcasters cannot manage to fulfill for different reasons. Many countries of the world have communitarian broadcasters with recognized legal status. They form the World Association AMARC based in Canada and represented in 106 states, according to the data from 2006. The representatives of Moldova participated in the last meeting of the Association in Amman, Jordan, on 6 November 2006. [Special legislative norms … with general character] Chapter VIII “Private broadcasters” is based on article 66, which contains certain important stipulations, but, on the whole, it is a conglomerate of irrelevant norms regarding the creation and especially the functioning of private broadcasters. Three of the eight paragraphs - (2), (3) and (4) – have a restrictive content and do not provide specific features or mechanisms for real activity. Paragraphs (5) and (6), as well as (7) and (8), with small differences, contain general norms both for the public and private broadcasters and could be well included in other chapters also. The norm stipulated in paragraph (1), which concerns the constitution of private broadcasters by legal entities and individuals, runs counter to other stipulations of the Code and this creates ambiguities. Thus, according to article 2, letter c), any legal entity or individual can obtain the grade of broadcaster, while letter d) and c) of the same article stipulate that the broadcaster can have only the status of legal entity. The stipulation according to which the legal entities and individuals from abroad have the right to hold the status of majority shareholder in broadcasting institutions is beneficial for the inflow of foreign investments in broadcasting, for starting businesses in the area and improving the quality of the programs broadcast. The experiences of Moldova’s neighboring countries and of the states of Southeastern Europe prove it convincingly. But in the Code adopted in Moldova, this right is fixed in a roundabout way like and in such conditions the foreign investors will not come to Moldova, as they need clear guarantees, first of all legislative. This special chapter also does not stipulate the features and specific regulations for private broadcasters’ activity. The present situation is dangerous because it can generate subjectivism, voluntarism and discrimination in the process of regulating their activity. The new legislative document omitted out essential things. The specifics of the private broadcaster’s activity consist in the combination of the characteristics given to the public broadcaster (in the society’s service, editorial independence, public supervision) with those of a free private activity. On the one hand, the private broadcasting is a component part of the national broadcasting, which is extremely important in terms of volume and social impact. For this reason, the private broadcasters must enjoy the same attention and the same support as the public broadcasters. On the other hand, the private broadcasting is a very specific business that necessitates a lot of prudence in regulation. But the Code does not contain such an understanding of the state’s role in relation with the private broadcasters that provide services of public interest and, respectively, carry out certain functions and fulfill certain obligations of the state. The Code stipulates only the obligations, which are the same for all the types of broadcasters, but does not provide clear mechanisms for stimulating the private business to satisfy the public interests. The European regulations and the practices of the countries with an advanced democracy show a completely different attitude. Because the distinctive features of the creation and functioning of the private broadcasters are not clearly stipulated in the Code, the study authors tried to deduce them by examining attentively the stipulations that are common to all the types of broadcasters. [Inconveniences and risks in constituting private broadcasters] Some of the noted distinctive features could be included in article 35, which concerns the Strategy for Covering the National Territory with Program Services that is to be worked out by the Broadcasting Coordinating Council. But in this case, the legislators also do not give the Council many indications regarding the Strategy, making only reference to “the principles of developing the broadcasting in the Republic of Moldova.” Probably, they mean the broadcasting communication principles stipulated in Chapter II, articles 6 – 18. But those several existent orientations are of technical nature and are irrelevant for the ‘strategic” importance of the Strategy. And that’s all. There is little information about the content of the strategy, about the principles of distributing frequencies and nothing about the program services in terms of type and format, about the way of formulating and putting into practice the Strategy and the presentation terms etc. Maybe all these will appear in the Strategy itself, but the Code, which is a legislative document, should also have contained certain references. It is true that article 11 of the Chapter II stipulates that at least 70% of the broadcast frequencies must be offered to the broadcasters that transmit programs in the state language by 1 January 2010. Also from 1 January 2008, at least 80% of the program services provided by the broadcasters will constitute own and autochthonous products and European creations 50% of which will be transmitted during hours with maximum audience. If, eventually, by this stipulation the legislators suggested a principle on which the future Strategy will be based, they should have provided at least a minimum of such principles. The experts stress the importance of the strategy for the creation and subsequent functioning of the private broadcasters in their double position of providers of public services that aim to satisfy their private interest. They consider that this specific feature was not taken into account in the Code and the lack should be covered in the Strategy if they want to take the private broadcasters out of the present chaos. The private broadcasting is a component part of the national public broadcasting, but it is specific. Its social mission can be achieved through all the private broadcasters taken together and not separately. This can be obtained by adequately distributing frequencies at national level for different settlements, geographic zones and within each of them. Before and after the Code took effect, the contests for broadcast licenses are held according to one and the same criteria for all, at least apparently: so much own production, news, programs, including for youth and for veterans, so much autochthonous music, state language and minority languages. As if they are weighting something. We do not say that the given criteria lack importance, but they do not cover all the criteria that would take account of the both roles of the private broadcasters. Actually, by neglecting and later banning the existence of local public broadcasters, the state shifted their public task onto the local private broadcasters. In fact, the private broadcasters, especially the local ones, are forced to follow a generalized format by reediting Radio Moldova and TV Moldova at local level, with the same unilateral and apathetic message that these stations have sent to the public for several years. For these reasons, the local broadcasters with their own programs have too many public obligations and are on the verge of bankruptcy. By chance or by a practice instituted long ago in the Republic of Moldova, the Broadcasting coordinating Council does not impose the same requirements on the developed networks that retransmit foreign channels in the country. The current situation can be overcome in time by formulating the Strategy for Covering the National Territory with Program Services that would comply with the Europeans norms and practices. They presuppose the existence of varied program services se, according to the consumer’s and state’s interests: generalist channels, informative-musical and musical-informative, of pop, retro, classical music, with specialized messages in sport, youth, ecology, culture, science, vulnerable categories of people, strictly informative and strictly religious channels, monolingual, bilingual and multilingual channels etc. The strategy is to stipulate clearly, at national level and for each zone or even settlement apart, the structure and the interests of the consumers of program services, to correlate them with the state’s interests and establish the principles of distributing frequencies in compliance with them. Priority will be given to the broadcasters that commit themselves to take a part of the public functions over. At the same time, the must benefit from the state’s support, including financial, because the program services with educational, cultural and informative character do not bring profit as a rule. In certain cases, under the Strategy the Broadcasting Coordinating Council will have the initiative; will put for contest certain frequencies, for certain purposes, for certain settlements or regions, for a certain period. This is a form of social command which could be covered partially or fully from public money so as it could be carried out in the absence of local public broadcasters. The other private broadcasters will take possession of the licenses on the basis of narrower conceptions and will be allowed to do their duties unhindered, not subjected to excessive supervision and controls because they, simultaneously, carry out public functions, bringing information, diversity and variety in the public life. Paragraph (2) or article 35 says that the Strategy for Covering the National Territory with Program Services should be revised yearly for the purpose of “guaranteeing public interest.” This is a requirement that bears certain risks for the stability of the broadcasters working on the mass media market. Moreover, such documents as strategies are formulated for a long period of time. Neither the public interest can change each year. However, the annual revisions should not affect the business of the existent broadcasters. The lack of a Code stipulation that would say exactly within which period the Strategy should be formulated, resulted in a series of regrettable errors on the part of the Broadcasting Coordinating Council that seriously affected the public interests and broadcasters’ interests. The Council should have first formulated the strategy, which requires time, profound knowledge in the area, a strong will and hard work, but it preferred to choose forcedly or voluntarily an easier way announcing a contest for frequencies and accepting the change of the status and pattern of ownership of some broadcasters popular with the public. And this is not surprising that without the Strategy the Council failed. The cases of Radio Antena C, Euro TV Chisinau, Radio FM 103.5 in Bali had a wide national and international coverage, but negative. These cases will have a negative impact on the broadcasting and on the Moldovan society many years to come. Apparently, they will negatively mark the image of the current Broadcasting Coordinating Council. The study authors consider that paragraph (6), letter g) of article 23, which says that the applicant for license should present “the copies of the contracts for the purchase of the necessary equipment or for their lease”, bears a risk. In the case of new broadcasters, maybe, the financial consistency would be a sufficient proof, but in the conditions of an objective contest they cannot be sure they will come to hold a license. Ina addition, the largest part of the equipment is produced by prestigious foreign firms which will not accept the equipment back in case of failure in the contest and which cannot be asked to sign conventional contracts. The respective stipulation could make the applicants resort to forgeries and tricks. In another development, the study authors consider that the legislators cannot tolerate the situation described in paragraph (4) of the same article, when the tariffs for using the frequencies are fixed by the relevant central public administration authorities. In the civilized world, even in Moldova, the independent public authorities fix the tariffs with a big social impact, possibly at administrators’ request. [Legislative stratagems and risks in private broadcasters’ functioning] Article 7, paragraph (1), which was formulated to respect the freedoms and fundamental rights of the people, does not clearly stipulate that in the case of private broadcasters, the cultural, linguistic and religious diversity, the informing, education and entertaining of the public is done through all the broadcasters and not through each broadcaster apart. This is a necessary remark based on the existent practices in broadcasting regulation. To a certain extent, the social-political pluralism must be ensured in the same way, given that the legislation sets identical conditions on the public and private broadcasters (for example, the obligation to reflect the election campaigns – article 7 (3), the production capacities and the resources in general being unbalanced in favor of the public broadcasters. In this case, the experts say, the legislators should have though of certain simulative mechanisms for the private broadcasters, for instance, to be able to organize electoral debates. The stimulation, including financial, of the private broadcasters to engage in such campaigns would be a solution. The elimination of the local public broadcasters drastically reduces the space for electoral debates. In such conditions, the voter is mostly oriented towards a single source of debates, towards a single style – of the National Public Broadcaster. But this looks more like monopoly than pluralism. In addition, the National Public Broadcaster is practically helpless in the case of local elections. Paragraph (2) of the same article is formulated unprofessionally from juridical and journalistic viewpoints: “Giving broadcast time to a party or a political movement to propagate their positions, the broadcaster should also offer broadcast time to “other” parties and political movements during the same kinds of programs and at the same hour without groundless postponements and without favoring a certain party, regardless of the size of its representation in the parliament. In practice, “other party” can be selected from the members of the same coalition, of the government coalition for instance, and this will be in compliance with the present Code, but the political pluralism would not be ensured. Probably, this norm was to regulate the conflict situations on the political segment, with this legal provision intended to require that the position of the respective criticized party be broadcast obligatorily. Is this a legislative shortcoming? Article 15, paragraphs 1 and 2 oblige the public authorities to protect the journalists and the offices where they work. This is an important, necessary and even vital stipulation. But it was compromised from the start, during the first period of implementation of the Code. Despite the fact that the legislation bans the use of journalists’ and offices’ protection as pretext to prejudice journalists’ freedom of expression, to hinder or restrain the free practicing of their job or the assertion of the fundamental rights by the journalists, the deployment of police officers in the headquarters of the private broadcaster Radio Antena C, including around the studios, and the evacuation of journalists did not alert the authorities, there was no investigation, there were no related explanations. And this does not concern the behavior of the Broadcasting Coordinating Council only. Even the head of the parliament admitted indirectly that “the bomb attack” at Antena C was a farce. The President of the country acknowledged more directly, publicly and defiantly that the party he heads has interests in this station, saying semiseriously and semijokingly that he will make “a sweet” from it. But the Broadcasting Code bans directly the parties from playing the role of broadcasters. It happened exactly what the fresh law banned: the free expression of the journalists was encroached, the free practicing of the job and the claiming of the fundamental rights by the journalists were hindered. The double standards policy comes from the same mentality of the Moldovan authorities, even if they appropriated under pressure certain legislative formulas of democratic regulation of the broadcasters and of the press on the whole. The respective article should be supplemented with a special stipulation regarding the status and protection of the journalists working for private broadcasters. Its necessities comes from the double position in their activity (public/private), from the often erroneous understanding of the employers in broadcasting that they have the right to do what they want at the station they own. This understanding changes in fact the understanding of the authorities that treat the public and private broadcasters in the same way, basing on the misinterpreted right of the current government. With all the good intentions stipulated in article 17 titled “Broadcast of Announcements that Concern an Emergency State”, this is a legislative blunder, or sooner a legislative stratagem. The notion of “emergency state” present in the article’s title, which justifies the obligation of the broadcasters, including private, to transmit “quickly and at their own expense the official announcements of the Parliament, Presidential Office and Government during all their programs” (paragraph (1)), as well as to broadcast without delay and gratis, during all their programs, the information coming from the central public authorities that is intended to protect the lives, health and security of the people or to prevent the damaging of the property or environment (paragraph (2)), cannot be found in the norms themselves. But the European norms and practices oblige the broadcasters to transmit authorities’ messages only when the authorities earlier announced the emergency state or any other crisis officially. In any other situation, authorities’ request backed by the Code is an abuse and interference in broadcasters’ activity. By article 38, paragraph (1), letter b), the legislators offered the Broadcasting Coordinating Council an instrument for sanctions, which is disproportional and dangerous for the business of the private broadcasters and for their program services. We refer to the stipulation that their right to broadcast advertising announcements can be withdrawn for a certain period of time. This is a disproportional sanction because it can be used in cases of insignificant violations and is posted after public warning, letter a), and before the fine, letter c), which is worth 100 to 300 minimal salaries. But the broadcaster’s deprivation of the right to transmit publicity for at least one day, not even “a certain period of time”, can lead to the loss of contracts and means damage that can result in the broadcaster’s bankruptcy. The publicity is in fact the only real and important source of income for the private broadcasters. It seems that the legislators also understood that they forced the things, as the respective sanction cannot be found in paragraph (3), which provides how the sanction is applied. There appear only warnings at letter a) and the fine at letter b). But the norm remains in force under paragraph (2) and represents real danger. A great economic danger for the private broadcasters is also posed by paragraph (2) of article 47, letter c), which provides that the budget of the Broadcasting Coordinating Council is constituted inclusively from “the incomes from the yearly taxes for covering the regulatory expenses paid by the broadcasters in proportion of 1% of the annual turnover. Paragraph (3) specifies that this money will be collected in a fund for supporting broadcasters that will function on the basis of separate regulations worked out by the Broadcasting Coordinating Council. If there are no clear stipulations how the fund should be used, its constitution and well functioning remains at the discretion of the Council. A fund for supporting broadcasters, especially the private ones, is necessary indeed. Their poor economic condition on the whole does not offer changes of developing and for obtaining the status of free and independent press. Without it, neither the Moldovan society has many chances. This connection was recently highlighted by the Deputy Assistant Secretary of State for Public Diplomacy Colleen Graffy, who said that without a vigorous press, the Republic of Moldova will not cope with the Millennium Challenge project through which Moldova receives important financial means to combat corruption. The statement was made following the situation created around the stations Antena C, Euro TV and Radio FM 103.5. The respective fund could finance the social orders that we mentioned above. This money, for instance, could eliminate the danger of disappearance of the cultural programs from the program services provided by the private broadcasters. They must be perceived as business: the culture does not bring profit, while the private business’ right not to deal with what does not bring profit should be observed. In the present economic conditions, the legislators and the Broadcasting coordinating Council should make use of not only requirements, bans and restrictions, but of stimulatory instruments, including financial and economic, also. Another example from the same area is that the largest majority of private broadcasters, especially local, do not have and will not have in the near future financial possibilities to comply with article 13, paragraph (4): “The access of the people with hearing deficiencies (deaf) to the televised programs of major importance and to news programs is guaranteed by their interpretation in the mimic-gesture language, at least 20 minutes of the daily programs broadcasted. On the other hand, the norm included in the Code can serve as pretext for tough sanctions or even elimination of broadcasters that can be selected from other interests than the public ones. The fund could also solve the problem of radio broadcasters, but more important of this category of people hit by the fate. According to the study authors, the legislative documents examine contains at least two essential drawbacks regarding the regulation of publicity, which is very important for the business activities and for the existence of the absolute majority of private broadcasters. The first drawing concerns the language of the publicity, which was tackled before the Code also. As long as the publicity is not broadcast only in the state language, according to the model of the neighboring Ukraine for example, and as long as the publicity market in Moldova does not have clear rules, the autochthonous broadcasting will not have real chances of developing. The second shortcoming regards the contradiction regarding the statuses of the private and public broadcasters. Article 19, paragraph (1) refers to all the types of broadcasters and stipulates that “the broadcast time used by the broadcasters for publicity or teleshopping constitutes their commercial product.” The Code creates equal conditions for obtaining incomes for all the broadcasters. It seems that the principle is not truly equitable in the conditions in which for the private broadcasters this is practically the only source of income, while the most important source of income for the public broadcasters is the public money obtained directly or indirectly. Due to this massive public support, the public broadcaster transforms into an attractive center with monopolist nuances in the area of publicity. The countries that limited the quota of publicity allowed to be transmitted by the public broadcasters had two aims: to protect the public message from eventual economic encroachments and to ensure the free competition in the field of broadcasting. The examined Code has the mission to protect the free competition and to ensure equilibrium and non-discriminatory conditions of activity for the public and private broadcasters. [Worrying conclusions for private broadcasters] - The Code does not clearly provide the role and place of the private broadcasters in the national broadcasting system. - The Code’s norms do not adequately define the specific and ambivalent character of private broadcasters’ activity, which is a private business with public character in the public's interest. - The Broadcasting Code’s stipulations regarding the private broadcasters have a prevailing restrictive, controlling and not sufficiently simulative character. - The Broadcasting Code offers a few new prospects for the private broadcasters through the possibility of attracting major foreign investments, but does not offer a legislative framework for this. - The Code does not adequately protect the private broadcasters from the bureaucratic tendencies, from abuses and subjectivism on the part of the authorities. - The first stage of implementing the Broadcasting Code was marked by regrettable drawbacks that reduce the expectations related to the new legislative document in general. - A part of the mentioned shortages can be removed in time through the future Strategy for Covering the National Territory with Program Services. Serious legislative modifications will be required afterwards. First of all, the notion of private broadcaster should be comprehensively defined so as it corresponds to its real status in the national public broadcasting system. [Final conclusions valid for the whole text of the Code] 1. The Broadcasting Code, as it is mentioned in analysis and commentaries, contains certain stipulations that fully comply with the European requirements. But these are only separate passages combined eclectically with ambiguous specifications coming out from an outdated mentality, which still persists in our area and cannot certify to a clear evolution in the legislative creation in the area that would ensure a real progress of the national broadcasting. 2. The Broadcasting Code contains many general formulas for guaranteeing broadcasters’ independence and freedom, but do not provide for comprehensible mechanisms that would really ensure their independence and freedom. 3. By its stipulations, the Broadcasting Code does not provide for sufficient mechanisms for ensuring the autonomous and independent functioning of the broadcasting regulatory authority. 4. Though devotes the largest chapter to the public broadcaster, the Broadcasting Code inexplicably neglects the essential principles that ensure that functionality and complexity of a true public broadcaster. 5. The Broadcasting Code, wanted and long awaited by the whole society, did not live up to expectations after implemented. 6. The Broadcasting Code needs a new amendment so as to actually adjust the national juridical framework to the European standards. Only in such a way there will be created preconditions for constituting and developing the national broadcasting on the basis of democratic principles.