Strategic guidance for the law on electronic media and amendments

Transcription

INTRODUCTION
We are living in times of mediamorphosis. Considerable acceleration in media development, data gathering
and processing, as well as in information technology, are
changing our communications environment before our
eyes. The compression of time and space confers a global dimension upon communications, lessening the significance of national borders. Changes favour the rise
of new social needs and create new challenges related
to the need to satisfy them. The ability to react to social
needs faces numerous barriers created by already existing market and legal structures. It also faces political
structures, their ability to react, foresee or formulate strategic objectives and implement solutions in the interest
of the society as a whole and of individual citizens.
Poland faces additional challenges related to its accession to the EU and the adoption of its principles and laws,
which regulate the operation of electronic media.
Concepts and solutions proposed in the present study
are intended to outline the areas and issues, which have
a fundamental significance for the shape of national policy
in the ever more important sector of culture and economy
that electronic media have become.
This study was made possible by the agreement on
the implementation of a programme on audiovisual policy
signed in August 2002 by the National Broadcasting
Council and the French Direction du Dévéloppement des
Médias, financed by the Communities with PHARE 2001
funds. The programme, entitled "Audiovisual Policy" was
implemented between March 2002 and March 2003.
What became the prime objective of the programme
was to propose comprehensive solutions for the radio
and TV industry, adapting the functioning of regulatory
bodies and market undertakings to the entire system of
EU legislation.
The months that followed saw a succession of seminars, training courses and presentations with the participation of experts from EU Member States. Nearly 40
experts from 8 EU Member States took part in these meetings. The conferences, seminars and discussions familiarised all interested parties with the most important
trends and phenomena in European regulatory policy
in the area of radio and television broadcasting in the
process of convergence. They have also been a good
opportunity to confront Polish solutions with the European ones and a starting point for deliberations on new
systemic solutions.
Study visits under the project gave Polish experts the
opportunity to familiarise themselves directly with the
experiences and solutions adopted in EU countries. The
visits had been planned so as to permit the analysis of
various solutions used in Europe.
The present study is the first attempt to develop a comprehensive approach to the issue of national electronic
media policy, as well as a certain synthesis and summary
of work carried out under the project. A preliminary, working document – the so-called Green Paper – which after
its publication in September 2003, has been submitted
to consultations and assessment, as prescribed for Euro-
pean projects, preceded the publication of the present
study. Many passages of the present study address proposals and criticisms voiced during the public debate, but
do it indirectly, by giving up some earlier proposals or their modifications.
In their proposals for the solution of various problems,
the authors have tried to show them against the background of various solutions and institutions already functioning in the European Union. The authors believe that the
assumption on the importance of historical, social, cultural and legal differences is essential and therefore do not
propose to adapt a single, selected model to Polish conditions, but have opted for the effort of selecting optimal
(in their opinion) solutions, which would provide a cohesive regulatory system for the electronic media and implementation of national policy in this area.
The programme was made up of five components:
1. The approximation of Polish law regulating radio
and television broadcasting to EU law. Achieving this
objective required developing guidelines for the drafting of
an electronic media Act ensuring the harmonisation of
Polish law with Community law, which will additionally have
to take account of European trends in this field. Upon accession to the European Union, there is no other way than
to invoke the entire acquis communautaire in this area.
2. Digital television. This element was designed to
develop a strategy for launching digital television in
Poland and for the analogue to digital switchover, as
well as to prepare the guidelines of regulatory policy
with this regard. This aspect of the programme focused
mostly on the consequences of the new EU electronic
communications directives and on the specific solutions
in the area of national regulatory policy with regard to
the launch of DTT.
3. Institutional strengthening of KRRiT. This component was connected with the organisational audit of
KRRiT. The results of the audit should be used in the day
to day functioning of KRRiT. The conclusions and recommendations contained therein were an important contribution to the proposals, which should lay the foundations for
the functioning of the new, integrated market regulator.
4. Upgrading the technical qualifications of KRRiT
management and staff. This goal was pursued through
a series of specialised seminars for the individual KRRiT
departments and study visits to appropriate organisations
in France.
5. Upgrading KRRiT’s technical resources. Under
this programme component, technical equipment, including computer hardware, was purchased to streamline
the performance of its statutory tasks.
Thus, the project had a very wide scope, while the
issues and problems calling for expert support were highly
diversified.
Even though several dozen people have participated
in the work as experts, participants in discussions, critics
and observers, the present study is not an expression of
the institutional views of the parties to the agreement, but
an original product of independent experts’ efforts, who
have tried to analyse problems and offer solutions.
Strategic guidance for the law on electronic media and amendments to other laws
Publication financed with aid funds under PHARE project PL 2001/IB/OT01
1
The publication of this study ends substantive work on
the project. Wide-ranging consultations held with the institutions concerned and communities representing the Polish
electronic media sector, as well as a thorough analysis of
European determinants warrant the hope that the present
2
publication will become the starting point for further studies
and practical systemic solutions adapting Polish electronic
media to the requirements of the single market and future
challenges. Even though this process may continue for
many years to come, what really matters is to get it started.
Tadeusz Kowalski
TABLE OF CONTENTS
INTRODUCTION .................................................................................................................................................................. 1
1. BACKGROUND ............................................................................................................................................................... 5
2. MAIN DIRECTIONS IN THE MEDIA POLICY OF THE EUROPEAN UNION ................................................................ 6
3. CHANGES IN RADIO AND TELEVISION BROADCASTING ....................................................................................... 10
3.1. GENERAL INFORMATION ON CHANGES OCCURRING IN BROADCASTING .................................................. 10
3.2. NEW TECHNOLOGIES IN THE MEDIA – FUTURE CHALLENGES FOR LEGISLATION AND REGULATION ........ 14
3.3. ELECTRONIC MEDIA VERSUS THE ECONOMY ................................................................................................. 18
3.4. MEDIA, ADVERTISING AND TELECOMMUNICATIONS MARKET IN POLAND .................................................. 19
3.4.1. Macroeconomic Considerations .................................................................................................................. 19
3.4.2. Advertising Market ....................................................................................................................................... 20
3.4.3. TV Advertising .............................................................................................................................................. 21
3.4.4. Radio Advertising ......................................................................................................................................... 22
3.4.5. Press Advertising ......................................................................................................................................... 23
3.4.6. Outdoor Advertising ..................................................................................................................................... 24
3.4.7. Internet Advertising ...................................................................................................................................... 24
3.4.8. Telecommunications .................................................................................................................................... 25
3.4.9. CATV ............................................................................................................................................................ 26
4. CHANGES IN THE MEDIA POLICY AND REGULATORY PRACTICE OF AUDIOVISUAL MEDIA ........................... 26
5. DIRECTIONS AND GUIDELINES OF POLAND'S NATIONAL MEDIA POLICY .......................................................... 27
5.1. PROGRAMME ......................................................................................................................................................... 29
5.1.1. Public Service Broadcasters ........................................................................................................................ 33
5.1.1.1. Programme Licences for Public Service Broadcasters ................................................................ 34
5.1.2. Commercial Broadcasters ............................................................................................................................ 36
5.1.3. Social Broadcasters ..................................................................................................................................... 36
5.1.4. Independent Producers ............................................................................................................................... 36
5.1.5. Internet Content ............................................................................................................................................ 42
5.2. BROADCASTERS ................................................................................................................................................... 43
5.2.1. Public Service Broadcasters ........................................................................................................................ 43
5.2.1.1. Scope and Areas of Public Service Broadcasters Activities ........................................................ 44
5.2.1.2. Financing Public Service Broadcasters ........................................................................................ 44
5.2.1.3. Position of the European Union on the Financing of Public Service Broadcasters ................... 45
5.2.1.4. Financing Polish Public Service Broadcasters ............................................................................. 46
5.2.1.5. Legal Form and Organisational Structure of Public Service Broadcasters ................................. 49
5.2.1.6. Competences of the Management Board and of the Supervisory Board ................................... 50
TABLE OF CONTENTS ....................................................................................................................................................... 3
5.2.2. Commercial Broadcasters ............................................................................................................................ 50
5.2.3. Social Broadcasters ..................................................................................................................................... 51
5.3. PROTECTING COMPETITION IN THE ELECTRONIC MEDIA .............................................................................. 51
5.4. DIGITAL RADIO AND TELEVISION BROADCASTING .......................................................................................... 53
3
5.4.1. Introducing Digital Radio Broadcasting ...................................................................................................... 56
5.4.2. Introducing Digital Television ...................................................................................................................... 57
6. NEW AREAS AND FORMS OF MEDIA REGULATION ................................................................................................ 63
4
6.1. "VERTICAL" AND "HORIZONTAL" INFRASTRUCTURE AND ELECTRONIC MEDIA CONTENT REGULATION ........ 63
6.1.1. "Horizontal" Regulation of Electronic Communications Infrastructure ....................................................... 64
6.1.2. "Horizontal" Electronic Media Content Regulation ..................................................................................... 66
6.1.3. Assessment of the Method used to Transpose EC Electronic Communications Package Directives
in the Draft Telecommunications Law ........................................................................................................ 69
6.2. REGULATION, SUPERVISION AND SELF-REGULATION OF ELECTRONIC MEDIA AND INTERNET CONTENT .......... 70
6.2.1. Organisational Solutions with regard to the Regulation and Supervision of Internet Content ................. 71
6.3. NEW TYPES OF ADVERTISING ............................................................................................................................ 72
7. REGULATORY MODELS FOR RADIO AND TELEVISION BROADCASTING AND TELECOMMUNICATIONS ........... 74
8. SUMMARY .................................................................................................................................................................... 81
Annexes
1. Electronic communications implementation of "New directives" (electronic communications package)
proposal for the position of the regulator of the radio and television broadcasting market, Piotr Jasiñski,
Oxecon Ltd. (Great Britain) – (Editor) .......................................................................................................................... 82
2. Proposed solutions for the broadcasting act and the telecomunications law in connection with the EU
electronic communications package 2003 with justification, Anna Stre¿yñska ......................................................... 92
3. List of conferences, seminars and experts’ meetings held in the framework
of Phare PL 2001/IB/OT01 project ............................................................................................................................. 109
4. List of experts, persons and organisations, who have given lectures, seminars or consultations,
or submitted an opinion in writing on the preliminary versions of the assumptions, or submitted
an opinion in writing on the preliminary versions of the assumptions of the new act on electronic
media (the so-called "Green Paper") ......................................................................................................................... 111
1. BACKGROUND
The main (and in fact – the only) document that defines
the directions of the media policy pursued by the Polish
State towards electronic media is the Broadcasting Act.
Harmonising this Act with new technological and market
reality and the requirements stemming from Poland's
accession to the European Union would require such
far-reaching changes and extension, that amending the
existing text hardly seems to be a practical way of achieving the intended changes1.
Poland's accession to the EU will stimulate the movement of capital, goods and services, revive business and
cultural contacts between citizens and companies, thereby creating an opportunity to relatively soon narrow the
civilisation gap between Poland and average EU countries. This will be an historical opportunity to build stable,
long-term and predictable foundations for businesses
operating in telecommunications, radio and television,
creating growth prospects for them.
In its new shape, the Law should not only be an
expression of the national media policy, but also a means to ensure the implementation of the objectives of such
policy2. Without neglecting the pursuit of public policy in
the area of radio and television, inter alia, as regards the
protection of their democratic, social, cultural and educational functions or the pluralism of the media market, we
should strive to tap the market and technical potential of
electronic media. This new legal regulation must be based on the recognition of the economic importance of
radio and television, increasingly interlinked with telecommunications and new information and communication techniques, including the Internet, which is the basis
of "Knowledge-Based Economy". This needs to happen
for Poland to be able to use the opportunities created by
new technologies. A universal development of the electronic and telecommunications market, of the markets of
radio and TV services and of the services of the informa-
tion society should become our goal. This is why media
policy needs to be co-ordinated with the strategy of Poland's informatisation3, economic strategy4 and general
Poland's civilisational development5, which should also
apply the other way around. Parallel to that, establishing
closer ties between public service radio and television
organisations with the public sector, including culture and
education should enhance the effectiveness of government policy in these fields.
The current Act constitutes a barrier to the further development of Polish terrestrial radio and television broadcasting, because it prevents taking advantage of digital technology in the broadest sense of the word and thus,
impedes the development of a new programme offering
or taking advantage of the new opportunities offered by
this technology.
The Act also makes it difficult to cover radio and television broadcasting by the convergence process (integration of audiovisual media, telecommunications and information technology, which obliterates traditional boundaries between the media and means of communication).
Thereby, it impedes Poland's aspirations to the information society and makes them more time consuming, creating a wider civilisation and cultural gap, which separates Poland from more, developed European countries.
What also needs to be addressed are problems arising from the shortcomings or inappropriate application
of the current Act.
The shortcomings of the current Act and its bad application also create other problems waiting to be solved.
This holds true for, i.a., the separation of radio and television broadcasting (especially public service broadcasting) from the world of politics, the nomination of KRRiT
members and the members of public broadcasters' governing bodies (what is particularly significant here, is the
habit of using party parities, rather than choice based on
qualifications), guaranties of the appropriate performance and development of programming obligations by pu-
1
Already in 1999 the following view of the Broadcasting Act had been formulated: "the main development trends in the area of television
and related methods of mass communication remain outside the legislator’s field of vision. The market however, will not wait. Legal
vacuum may paralyse the activities of domestic entrepreneurs ... The later the legislator will respond to the technical capabilities of mass
communications, the more difficult it will be to safeguard the interests of the national market and national culture in the new regulations"
(Stanis³aw Pi¹tek, "Perspektywy przekszta³ceñ prawa o komunikowaniu masowym i indywidualnym" (Perspectives of transformations in
the law on mass and individual communications) (in:) Józef Lubacz (ed.) "W drodze do spo³eczeñstwa informacyjnego" (On the Road
to the Information Society). Warsaw: Oficyna Wydawnicza Politechniki Warszawskiej, 1999).
2
Even though the Broadcasting Act charges KRRiT with the task of "developing the guidelines of the State policy towards radio and
television in consultation with the Chairman of the Council of Ministers (Prime Minister)", and the Law on sectors of government administration states that it is the authority of the Minister of Culture to pursue an "audiovisual policy", due to the technological and market
integration of all mass media and new information and communication techniques the notion of "media policy" that we are using here is
much broader and allows to cover all those areas.
3
See "Strategia informatyzacji Rzeczpospolitej Polskiej – ePolska" (Strategy for the development of the Polish information society-ePoland). Warsaw: Komitet Badañ Naukowych, 2003.
4
See i.a. "Strategia dla przemys³u elektronicznego do roku 2010" (Strategy for the electronic industry until 2010). Warsaw: Ministerstwo
Gospodarki, 2002.
5
See "Polska 2025 – d³ugookresowa strategia trwa³ego i zrównowa¿onego rozwoju", (Poland 2025 – long-term lasting and balanced growth
strategy), a summary prepared by the Government Information Centre, http://www.kprm.gov.pl./cir/Komc2000/kc0726e.htm; "Wprowadzenie
Polski do Spo³eczeñstwa Informacyjnego. Wstêpna koncepcja polityki Pañstwa na rzecz stworzenia spo³eczeñstwa informacyjnego" (Introducing Poland to the Information Society. A Preliminary Conception of National Policy for the Establishment of the Information Society). Warsaw: KRRiT, 1996.
5
blic broadcasters (especially, by changing the structure
of their financing), their development, as well as sound
relations between the public and private sectors in radio
broadcasting and providing regional, local and social
broadcasters with an opportunity to break through. Some
of these issues are a consequence of the existing level
of political culture, but others call for new structural and
legal solutions.
This is especially true of the public service media.
Even though public service media throughout Europe
seem to be suffering from an identity crisis derived from
fundamental social, cultural, market and technological
changes, which have occurred since their establishment
and from the challenges of the information society, as
well as with a mounting pressure from the commercial
media, to have their role defined in such a way, as to
prevent them from competing for audiences and advertising6, the media identity crisis in Poland has also other
sources. The sources of problems with remaining apolitical and with impartiality have already been enumerated
above. To top it all, we must add the lack of understanding with regard to the model of public service television
due, among other factors, to the aspirations of the previous management of TVP S.A. to commercialise its programming in order to maintain high advertising revenues (with obvious consequences for the nature of programming), but also the failure to provide public service
broadcasters with secure and adequate public financing.
The conditions under which TVP S.A. had operated ever
since its establishment, have created a self-driven mechanism of increasing reliance on advertising revenues,
leading to an aggressive programming policy, ensuring
a high audience share and – therefore – to less concern
for the appropriate genre structure and programming
policy, as well as to an aggressive commercial and advertising policy. This created a vicious circle, which can
be broken only by solutions, which will properly and effectively define programming obligations, which will
make it possible to rationalise operating costs and provide adequate funding from non-commercial sources. The
situation of Polskie Radio S.A. demonstrates the scale of
problems. Despite a proper financing structure (predominantly public) and better performance of public service
remit, it is suffering from progressive marginalisation in
its market.
This is why nearly all solutions adopted in the Broadcasting Act of 1992 need to be substantially modified. It is for this reason that the present paper proposes to develop the strategic assumptions of a new Act
on electronic media, which will also amend other Laws.
This study should be treated as material for further
discussion, expanded by comments on the earlier presented "Green Paper" (see Annex on consultations on the
draft carried out to date) and the issues discussed here.
The study points to a whole range of possible solutions
and presents the potantial consequences of the adoption
6
of some of them. Only support for the logic of these solutions, or an unequivocal declaration of one of the suggested directions of action, leading to the crystallisation of
public and commercial media development strategy in
Poland, will enable the domestic regulator and the political elites to embark on the next stage, i.e. the presentation of more detailed proposals for drafting new legal
regulations.
According to the methodology appropriate for solutions dealing with the system and – at the same time –
having far-reaching market consequences and in line
with the European procedure, which provides for the consultation of draft directives, this study should be submitted to broad consultations, eventually leading to KRRiT
declaring its official position on the study and eventually,
to the study becoming a strategic document in part or in
whole.
Naturally, the new Act on electronic media will have to
conform to EU regulations. The EU is currently pursuing
work on proposed amendments to Directive 89/552/EEC
of 3rd October 1989 on the coordination of certain legal
and administrative provisions of the Member States with
regard to the pursuit of television activities, as amended
by directive of June 30, 1997 (the so-called "Television without Frontiers Directive"). This work will continue for a few
more years.
Yet Poland cannot wait for work on these amendments to be completed. Given EU legislative procedures and the fact that the year 2004 will see both the
elections to the European Parliament and a new makeup of the European Commission, the amended directive is unlikely to enter into force before 2007. It is therefore necessary to strive to pass a new, comprehensive
Act on radio and television broadcasting soonest, bearing in mind that the adoption of the amended directive will probably require amendments to the Law on
electronic media within 18 months of the directive's
entry into force.
2. MAIN DIRECTIONS IN THE MEDIA POLICY OF THE
EUROPEAN UNION
During accession negotiations the only thing that
was required in the chapter "Culture and audiovisual
policy" was to adapt the Broadcasting Act to Council
Directive (89/552/EEC) of 3rd October 1989 (as amended in 1997) on the co-ordination of certain provisions
laid down by law or administrative action in Member
States concerning the pursuit of television broadcasting
activities ("Television without Frontiers" Directive). Now
it will be necessary to transpose the entire acquis communautaire relating to broadcasting, television and telecommunications (insofar, as it relates to radio and television) into the Polish legal system and to implement
the entire EU media policy.
Vide "Public Service Broadcasting in Europe", Committee on Culture, Science and Education, Parliamentary Assembly, Council of Europe, AS/Cult (2003) 31,15 December 2003.
6
The Communication on the Future of European Regulatory Audiovisual Policy7 published in December 2003
stated that "The audiovisual media play a central role in
the functioning of modern democratic societies and in the
development and transmission of social values. They
have a major influence on what citizens know, believe
and feel"8.
At this point it's worth to mention the Amsterdam Protocol to the Treaty establishing the European Community (1997), which stated directly that "the system of public
broadcasting in the Member States is directly related to
the democratic, social and cultural needs of each society".
The Communication on the Future of European Regulatory Audiovisual Policy added that the audiovisual
media were a cultural industry par excellence and stated
that operators in this sector benefited from a clear and
predictable policy environment, in which to plan investment and develop their business strategies.
When discussing EU media policy it is worth to invoke
the words of Viviane Reding, the Commissioner for Education and Culture, who said:
of the internal market and economic development of
the Community. National media policy needs to reach
much further and achieve all (i.e. also social and cultural)
objectives of public policy in the area of the media.
The European Community had no independent, specific for the audiovisual sector legal bases to shape the
regulation of media content. Under the Treaties the Community has no independent mandate to shape the media. The legal bases for the European Community's policy are designed to achieve the general objectives of the
Community, especially the completion of the internal
market. The Community's policy on the regulation of
media content is designed to ensure that national policies in this area become uniform. Our objective is not to
ensure that they pursue a homogenous and uniform
media policy [...] The Community's policy with regard to
content regulation is essentially internal market policy
designed to ensure the free movement of goods (e.g.
newspapers and magazines) and services (including radio and television broadcasting). Community regulation
of content [at the European level -authors' note] is particularly subject to the requirement of proportionality. It
must regulate those matters that are necessary for the
completion of the internal market, but may not regulate
anything else.9
One can enumerate several main directions in the
Community media policy:
Thus, despite obvious cultural consequences of certain
aspects of EU audiovisual and media policy its funda−
mental objectives are of economic nature, related to
the freedom to provide services and the completion
V. Reding calls the "Television without Frontiers" Directive and "instrument of the internal market". Indeed, the
draft was prepared by the EC Directorate General in charge of the internal market and not in the Directorate responsible for culture, education and audiovisual policy.
Accordingly, the document quoted above states, that
Community policy in the audiovisual sector is to foster its
growth, especially by building a common market for the
sector and – at the same time – promote important general
interest objectives, such as cultural and language diversity,
protection of minorities and human dignity and consumer
protection.
The European Union uses two main instruments to
implement its audiovisual policy, creating a legal framework for the operation of the audiovisual sector and financial support programmes.
1. Development of legal regulation aimed at the successful completion of an internal market in radio and television broadcasting and cyberspace10, protection of competition (and in this context – the regulation of public
broadcasters' activities) and protection of minors from
contact with harmful content broadcast on TV (and separately on the Internet). It was for that reason, that in
1998 the Council adopted the "Recommendation on the
development of the competitiveness of the European
audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and
human dignity". Then, in 1999 the European Parliament and the Council adopted the "Multiannual Community action plan on promoting safer use of the Internet by combating illegal and harmful content of
global networks".
2. Maintaining the mechanisms designed to support the
growth of the audiovisual industry, production and distribution of European TV programming and films,
which is to serve closely related objectives of the promotion of cultural and language diversity, as well as
7
"Communication on the Future of European Regulatory Audiovisual Policy". COM (2003) 784 final. Brussels: Commission of the European Communities, 2003.
8
Which basically refers to TV, cinematography and new technologies (insofar, as they are used as media for audiovisual programming
content).
9
"The challenges facing a future European regulatory system for media and communications", an address by Viviane Reding at Medientage
Munich,17th October 2002.
10
See: "Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the Internal Market".
7
increasing EU's competitiveness on the global audiovisual market (inter alia the Media Plus programme for
the years 2001 – 2005 with a budget of EUR 400 million, whereof 50 million for training, 70 million for development, 201 million for distribution, 29.75 million for
promotion and 31.5 million for administrative costs);
financing programmes supporting the growth of multimedia and Internet content, i.a. to promote cultural
and language diversity in the information society
(funds for the support of e-content production). In 2000
the European Council adopted the decision on the
launch of a multiannual programme to support European production and use of digital content in global
networks and to promote language diversity in the information society. The programme will be made up of
activities designed to support the use of European
content on the Internet, especially content created by
the public sector, to promote production in EU languages and the exports of such content and lastly, to
boost market dynamics and company activities in these areas. Then again in 2002 the European Council
adopted the resolution on "Interactive Media Content
in Europe", in which it treats the development of production and use of this content as an element of
a much broader programme directed at the development of the information society and a natural continuation, as if it were, of activities related to the promotion of the production of audiovisual content.
3. Development of common technical standards in the
area of audiovisual media and electronic communications11, establishment of legal and technical bases for
the transition of European audiovisual media into the
digital age12; promoting integration ("convergence")
and interoperability of audiovisual media, telecommunications and IT as the foundations of a knowledgebased information society. In this context one could
enumerate such measures as the adoption of Directive 95/47/CE13, which mandated that the "Member States shall see to that the transfer of wide-screen televisions services ... to digital transmission networks ... is
made easier". In its Communication issued in February 2003 entitled: "Electronic Communications – Road
to Knowledge–Based Economy" the European Commission calls upon the Member States to create conditions for long-term investment in the development
of broadband and 3G telephone networks. It enumerated the PC, CATV, digital television, UMTS telephony and W-LAN networks as gateways to teleinformatic
services. The interoperability of various networks and
terminals, enabling the users to use all services, regardless of the means of transmission, is a prerequisite to the achievement of this objective. The objective of EU programme eEurope 2005 is precisely to use
broadband networks to popularise access to new services, both through the Internet and other platforms.
In 2002 EU bodies have adopted the so-called Electronic Communications Package 2003, i.e. a set of directives on electronic communications. They call upon
the Member States to encourage the voluntary application of the open standard for application programme interfaces by the providers of television services
intended for public distribution in the Community over
interactive digital television platforms. It is about settop boxes and integrated TV sets supporting interactive television services. The next issue deals with ensuring the interoperability of digital TV sets. EU regulations also support equipping receivers with different
conditional access systems and the use of the open
harmonised CA standard. Electronic programme guides [EPGs] are one of the fundamental applications,
a look-alike of navigation software in the PC environment, which offer access to information about programming and associated services, as well as choice
between them. The new regulatory package aims to
popularise the so-called open API. The operators of
interactive television platforms should strive to implement the open programming application interface (API)
conforming to the specifications set out by European
standards organisations. An open application programming interface should ensure full interoperability, i.e. the
transmission of interactive content between the individual links of the distribution chain mediating between the
content producer and the final user.
4. Relations with third countries, involving:
• EU enlargement and the introduction of the candidate states and other post-communist countries into
the "European audiovisual space", (i.e. extending
the same legal system and principles of media operation to these countries);
• multilateral trade negotiations within the World
Trade Organisation (protection of the Community's
audiovisual market by refusing to make a commitment under GATS to liberalise this market and the
refusal to grant third countries unrestricted access
to this market or to grant the most favoured nation's
clause);
11
See i.a. Stanis³aw Pi¹tek, "Dystrybucja przekazów telewizyjnych i radiowych w œwietle dyrektyw Unii Europejskiej o ³¹cznoœci elektronicznej" (Delivery of TV and radio programmes in the light of EU Directives on electronic communications), "Prawo i ekonomia
w telekomunikacji" (Law and Economy in Telecommunications), No 4, 2002.
12
See i.a. "Directive 95/47/EC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the
transmission of television signals" (OJ L281, 23.11.1995, p. 51).
13
See i.a. "Directive 95/47/EC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the
transmission of television signals" (OJ L281, 23.11.1995, p. 51).
8
• co-operation with other countries (e.g. countries of
the Mediterranean Basin, Balkan states and EU's
"new neighbours" in the East after enlargement by
10 countries) and international organisations.
In 1999 the European Commission published a communication on the principles and guidelines of Community audiovisual policy in the digital age14. In this communication, the Commission enumerated the main areas of
activity in this field (amendments to the "Television without Frontiers Directive"; access to the programming
content of audiovisual media; copyright protection and
fight against piracy; State aid to cinema and television
programme production; the legal framework for the cinema sector; regulation of new forms of advertising and
sponsoring; protection of minors) and the following principles of audiovisual policy:
• proportionality, i.e. confining regulation to the extent
necessary to achieve the desired objectives;
• separation of infrastructure regulation from content regulation;
• technical neutrality of regulation;
• maintaining policies and regulation serving general
public interest at the European level, with the proviso
that regulation is to be used only when the market fails to achieve these goals on its own;
• recognition of the role of public radio and television
and the need for transparency in their funding;
• self-regulation as complementary to regulation.
The Media Plus programme, other financial support
programmes designed to safeguard cultural and language diversity and the "eEurope" initiative are amongst the
means serving the implementation of the Community
audiovisual policy.
As has been already said, work is continuing on
amendments to the "Television without Frontiers" Directive. A report on the application of this Directive to date15
promised a broad programme of studies and analyses, as
well as public consultations and debates within the Community, on the scope and directions of the amendments.
The work plan for the development of these amendments assumes that the following general systemic problems need to be considered:
• scope of regulation;
• relations between regulation, co-regulation and selfregulation of market undertakings.
Substantive work on the issues to be regulated will relate to the following areas:
• access to cultural events of major importance for the
society;
• promotion of cultural diversity and competitiveness of
the European programme industry;
• protection of general interests in television advertising,
sponsoring, distance sales and self-promotion;
• protection of minors and public order (right to reply);
• application of the Directive;
• issues not covered by the Directive: access to short
excerpts of events transmitted by one broadcaster on
exclusive principles.
The communication quoted above on the future of European audiovisual regulatory policy presents conclusions
that the European Commission has drawn from debates
and consultations carried out to date on prospective
amendments to the directive. The Commission has declared it would take short and medium-term measures.
The first relate to regulatory action on pressing matters, like issuing a communication in Q1 2004 offering an
interpretation of the directive to new advertising techniques (split-screen, interactive, virtual advertising) and an
update (within the same time frame) of recommendations
on the protection of the minors and human dignity, in
order to better adapt it to the Internet environment. The
provisions of the directive have not attracted criticism
during the consultation process, but there might be problems with their application in the new digital environment, especially in the Internet. There is an increasing
need to rely on self- and co-regulation mechanisms,
especially with regard to Internet content providers. A
study on co-regulation mechanisms in the media sector
will be published in 2005.
As the debate on amendments to the directive is dragging on and the issues mentioned above need to be
promptly considered, the Commission is planning to address them in other documents, which will provide a greater degree of legal certainty than the current one.
Medium-term action will mean the establishment of
three groups of experts, who will carry out in-depth analyses on three groups of issues: the scope of the directive, provisions on advertising, sponsoring and distance
sales and the right to information.
As goes for the first issue, i.e. whether content regulation should be extended from television to new technologies, including teleinformatic services (currently regulated
by the directive on e-commerce), the Commission stated
that the situation had not yet matured to warrant that. First
of all, these services are not widespread enough. Second,
there is no agreement on the methods to be used to regulate the content they convey. Nonetheless, far-reaching
14
"Principles and Guidelines for the Community’s Audiovisual Policy in the Digital Age". Communication from the Commission to the
Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, COM(1999) 657 final.
Brussels, 14.12.1999.
15
"Fourth Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the
Committee of the Regions on the application of Directive 89/552/EEC Television without Frontiers". COM(2002) 778 final, Brussels, 6.1.2003.
9
amendments to the directive, taking account of technological changes and convergence, may prove necessary at
some future date. Hence, the Commission is setting up
a group of experts, which will continue the analysis of the
scope of the directive (TV only, or new technologies too
and if so, then within what scope).
As far as provisions on advertising are concerned, irrespective of the communication interpreting the existing regulations in relation to new phenomena, another experts' group will
be formed, to consider the share of advertising in programmes. Another question with this regard is: "How detailed the
provisions dealing with advertising should be?" Facing numerous calls for the liberalisation of these regulations, the Commission intends to continue its analysis of the issue.
A study on the impact of regulations on advertising on TV
advertising markets in the Community and in other selected
countries is due to be published towards the end of 2004.
Lastly, as far as the third issue is concerned, the 1997
amendments to the directive introduced, out of concern
about viewers' access to information, Article 3a, which
made it possible for the Member States to draw up lists
of important events, which cannot be transmitted exclusively on pay or coded channels, but must be also accessible on free-to-air channels. This principle is to be retained, but an experts' group will be set up to consider the
right to information in its broader sense and the possible
methods of assuring citizens' ability to use it.
When discussion on the amendments was opened, it
seemed like there was going to be a major battle about
European production quotas and – generally – about policy on support for the production and distribution of European TV content production. However, basing on the results of consultations carried out to date, the Commission
stated that no changes were required. Member States'
reactions to date seem to point to their acceptance of this
approach. The results of an analysis of the impact of the
Directive's provisions and of Member States' regulations
on the production and distribution of TV programmes are
due for publication towards the end of 2004.
The situation is different as far as jurisdiction over
transfrontier broadcasters is concerned. The Commission
stated that it did not feel it would be appropriate to change the approach based on the principle, that broadcasters should be controlled – generally speaking – by the
country, from which they are broadcasting. However, the
Irish presidency announced, that one of their priority goals will be to bring satellite broadcasters under the jurisdiction and oversight of the countries, to which they are
broadcasting. During an informal ministerial conference
on radio and TV policy, held by the Irish presidency in
March 2004, eight Member States declared that the issue of jurisdiction called for more discussion, inter alia
because transfrontier television limited the ability of individual states to pursue their own audiovisual policies,
could imply an "advertising drain", made more difficult
the application of the provision of the Directive, which authorised the Member States to impose lighter or stricter,
or more detailed regulation in their territories, could pose
a problem for culture and national identity, etc. The Commission recognised that the problem was there and indicated it was ready to take it up in its further work.
The Directive guarantees the right to reply in transfrontier
television. Today a new problem is emerging, namely about
guaranteeing the right of reply in all media, including the Internet. The Commission is taking part in the work of the Council of Europe, which is drafting a recommendation of the
Committee of Ministers on the right to reply in the Internet.
The Commission's Communication deals also with the
"institutional issues". Some time ago a "contact committee"
was set up, which was intended to be a forum for discussions on the methods designed to implement the directive,
interpret it, etc. So far, there have been no objections to its
work, but there have been calls for more transparency in its
proceedings. In reply, the Commission has announced that
it would consider approving the publication of this committee's documents in the Internet. It is also likely, that a group
of audiovisual regulators from the Member States will be
established, as a forum for the exchange of opinions. A decision on the matter will be made in the second half of 2004.
The effect of all this work will be reviewed in 2005 in
the next report of the European Commission on the application of the Directive and during the Third European
Audiovisual Conference. It is probably also then that the
decision shall be made on further work on amendments
to the directive and on the objectives and means used to
implement EU audiovisual policy.
3. CHANGES IN RADIO AND TELEVISION BROADCA−
STING
3.1. General Information on Changes Occurring in
Broadcasting
Drawing on an attempted summary of these changes presented by the Digital Strategy Group of the European Broadcasting Union16, one may point to four main processes:
• Technical changes, stemming from digitisation17, which
make possible new ways to produce and deliver media
16
See "Media with a Purpose. Public Service Broadcasting in the digital era". The Report of the Digital Strategy Group of the European
Broadcasting Union. November 2002.
17
See i.a. Jan Gliñski, Lech Wozich et al in: "Telewizja Polska S.A. a nowoczesne technologie prze³omu XX/XXI wieku" (Telewizja Polska
S.A. and state-of-the-art technologies of the turn of the 20th century). Poznañ: Centrum Badañ i Analiz, Francusko-Polska Wy¿sza
Szko³a Nowych Technik Informatyczno-Komunikacyjnych, 1994; El¿bieta Kindler-Jaworska, "Przewodnik po telewizji cyfrowej" (Guide to
digital television), Warsaw: Oœrodek Szkolenia-Akademia Telewizyjna TVP S.A., 2000.
10
•
Market environment changes, which include (1) increasing concentration and globalisation of media interests growing into large corporations; (2) stronger integration of media companies with the economy (offering additional services; interfacing between the users
and services and trade; e-commerce, etc.); (3) the rise
of a new value added chain in the media and the increasing importance of the media sector as an employer and – in parallel with trade in copyright to audiovisual and multimedia content – as a source of the GDP;
(4) development of new sources of media financing,
e.g. through stimulating users to use telecommunications (700-numbers, SMS, Internet) and participation
in the revenues thus generated;
• Changes in media consumption patterns, which
transfer the entire control over this process to users,
leading to increasing personalisation of the media offering and the ways this offering is used;
• Changes in media law and media regulation and su−
pervision, including (1) the development of legislation
designed to regulate new phenomena stemming from
convergence and (which includes the transition from the
"vertical" to a "horizontal" and technically neutral model
of infrastructure and content regulation, covering simultaneously various integrating media and technologies,
replacing the former division into press, telecommunications and broadcasting legislation); (2) the increasing
importance of various form of self-regulation among
broadcasters and service and content providers18, as
technical changes increasingly prevent extending traditional supervision systems to e.g. the Internet; (3) increasing importance of international law, due to both
international integration and, to an even greater extent,
to the globalisation of the media.
The European Union attaches fundamental importance to the process of "convergence"19, as a process of
building the foundations of the information society and it
points out that "technical convergence" entails:
• "industrial convergence" – mergers of companies
previously operating in different fields, to extend the
scope of activities of a single corporation to all integrating technologies and the production of equipment
required to deploy networks and receive contents and
also, to network content itself, i.e. information, data,
media content;
• "market convergence" – thanks to the development
of new services and new ties between various partners
required to deliver these services to the consumers;
• "legal convergence" – unification or at least approximation of legislation used to regulate various areas of
communications (however, this is not tantamount to the
unification of regulations applicable to telecommunications on the one hand and broadcasting on the
other, due to their entirely different, in the social and
cultural sense, nature of communication processes in
these areas).
In many countries these processes are accompanied by
"administrative and regulatory convergence", i.e. abandoning previously used departmental divisions of the administrative structures and media regulation in favour of
new, multi-disciplinary structures capable of embracing the
integrating sectors of electronic media, telecommunications and economy, capable of formulating policies and
action programmes relating to the information society.
Accordingly, Lucien Rapp20 distinguishes between
four consecutive types of convergence:
• the digitisation of networks, communications systems
and consumer equipment has led to the convergence
of previously separate sectors of the economy (which
18
See i.a. "Co-regulation of the Media in Europe: European Provisions for the Establishment of Co-regulation Frameworks". IRIS Plus.
IRIS, Legal Observations of the European Audiovisual Observatory, Issue 2002-6; Monroe E. Price, Stefaan G. Verhulst, "The Concept
of Self Regulation and the Internet", (in:) Jens Waltermann, Marcel Machill (ed.) "Protecting our children on the Internet. Towards a new
culture of responsibility". Gütersloh: Bertelsmann Foundation Publishers, 1999.
19
See European Commission Green Paper "Green Paper on the Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications for Regulation", (in): "Przegl¹d Powszechny. Wokó³ Wspó³czesnoœci", No 9/10, p.15 (this is the
Polish language translation of the Green Paper on the Convergence of the Telecommunications, Media and Information Technology
Sectors, and the Implications for Regulation. Towards an Information Society Approach. COM(97)623 Brussels: European Commission,
3 December 1997).
content and will eventually contribute to the popularisation of multimedia services, interactive services and
services available on demand (so-called information
society services). In fact, there are two parallel technical revolutions underway: the first is the "analogue-todigital" changeover and the second the "digital-to-software", or IT revolution. Their combination leads to "convergence", which brings about fundamental changes in
the functioning of the media and the reception of their
content (including the development of conditional access systems offering media content for money) and, at
the same time, an increasing number of companies and
other organisations and parties capable of delivering
content on a mass or global scale;
20
Lucien Rapp, "The European Content Industry Threatened by "Napsterization". Experimental Communications Platforms, Digital Standards and Adaptation of the Public Policy Framework". A paper presented at the conference: "New Digital Platforms for Audiovisual
Services and their Implications on the Licensing of Broadcasters", Council of Europe, Strasbourg, 13th September 2000.
11
does not mean that differences between them have
become non-existent, which also applies to the principles of regulation);
The development of television broadcasting can be
also described by listing the successive "generations" of
TV broadcasters22:
• this relates to the convergence of industrial strategies,
reflected i.a. in mergers, alliances and co-operation between content providers and infrastructure operators;
• first generation: public service broadcasters (and
earliest commercial broadcasters): universal channels, specific programming obligations, high share of
in-house production; financing with licence fees and
possibly with advertising (only in the case of commercial broadcasters) – traditional television;
• then the use of digital technology leads to the convergence of market management models and business
models in the media and the information sector;
•
• as governments and international organisations embrace
the matters of convergence and its consequences there
occurs the convergence of public policy in this field.
Digitisation and convergence have a paramount importance for electronic media.
The radio already has its digital DAB (Digital Audio
Broadcasting) standard – DAB Eureka 147 allowing the
digitisation of broadcasting and reception. One must also
mention "software radio"21.
In the DAB standard the radio signal is accompanied
by more textual information (visible on the screen) than
in the RDS system (information on the programme, advertising, weather maps, labels of CD's currently played,
etc.). This gives the opportunity to freely select additional
information, including the news, weather information,
stock-exchange quotations, etc.
We have already come to witness the full integration
of radio broadcasting with the Internet (more than 50,000
stations are already available on the Web) in the form of
"Radio Stream" (delivery of radio programming available
on radio waves) and "Web Stream" (delivery of radio programming exclusively on the Web).
second generation: commercial broadcasters: universal channels with a higher proportion of entertainment, lower licensing requirements, high share of
outside programming, financing with advertising or
pay-TV – traditional television;
• third generation: commercial broadcasters of speciali−
sed ("thematic") digital channels; programming focussing on selected content or genres, not too much programming requirements in licences, programming content
mostly purchased in the open market – multi-channel TV;
• fourth generation: forms of "non−linear" delivery of
programming items on demand in interactive mul−
timedia systems, traditional linear programmes on
the decline – interactive television.
Other approaches23 present the development of interactive television broadcasting or "fourth generation" broadcasters as a result of an evolution, which took several
stages:
• Radio on Demand: ability to receive only selected
content;
• e−Radio (Enhanced Radio) – digital radio programmes
(possibly accessible on the WEB) with value added
services (additional information or opportunity to buy
products;
• i−Radio (interactive radio).
• Stage one: set-top boxes capable of receiving up to
200 digital channels coming to the market; popularisation of wide-screen TV; introduction of the early
forms of Video-on-Demand24 and other forms of interactive television
• Stage two: second generation of set-top boxes with
the capability of storing programmes on hard disks and
return channel. Higher quality interactive services and
better access to programming stored on servers;
• Stage three: full integration of digital TV and Internet;
common navigation tools; TV reception on the move;
portable TV receivers, full interactivity and access to
programme files in server memories.
The nature of the processes changing the face of television broadcasting is well reflected in the classification
of the stages of TV development presented below.
Among other things, this evolution is to take place
thanks to digital VCRs integrated with set-top boxes, the
so-called "Personal Video Recorders (PVR)", resembling
The following forms will determine the future of radio
broadcasting:
21
William Lehr, Maria Fuencisla Merino Artalego, Sharon Eisner Gilette, "Software Radio: Implications for Wireless Services, Industry
Structure, and Public Policy". Communications & Strategies, no. 49, 1st quarter 2003.
22
23
24
See. The Impact of Digital Television on the Supply of Programmes. A Report for the European Broadcasting Union. Arthur Andersen, 1998.
"The Future Funding of the BBC. Report of the Independent Review Panel". London: Department for Culture, Media and Sport, 1999.
The so-called Near Video-on-Demand, i.e. broadcasting the same films or movies on many channels simultaneously, separated by
small time lags, so that the viewer never has to wait long for the beginning of the selected programme.
12
Table 1. Three Stages in the Development of Television
Multi−channel Television
Interactive Television
Two-way delivery of many
channels and additional
services in interactive
systems
Service
One-way broadcasting of few
video channels
One-way broadcasting of many
video channels
Business
model
Mass advertising and/or
licence fees
Mass advertising, licence fees,
pay-TV
Targeted advertising, pay-TV,
transaction fees for additional
services, microtransactions
Control
strategies
Government property rights
over spectrum licence
Integration of distribution and
content assets
Access control and proprietary standards
Regulatory
model
Public trustee
Mix of trustee and limited public
regulation
To be defined
Sóurce: Herman Galperin, François Bar, "The Regulation of Interactive Television in the United States and the European Union", Federal
Communications Law Journal, Vol. 55 (2002), Number 1.
the already available TiVo or Replay TV, already capable
of recording up to 320 hours of programming. Ultimately,
these are to be replaced by systems which will relieve the
consumer of the burden of storing programming on his
own media and provide access to the desired programmes stored in server memories, i.e. the Video-on-Demand
system available on the Internet. It is called the Network
Video Recorder (NVR); entire Internet memory earmarked
for the storage of audiovisual programming will become
the user's VCR.
Simplifying, the processes of electronic media development using the example of television can be shown
as in Figure 1.
Existing studies on the prospects of electronic media
development and the development of the media market
in general25 don't offer the answer to the question, whether interactive TV or "fourth generation" broadcasters will
ever completely supersede the traditional "linear" TV.
These studies make progress and the pace of changes
largely dependent on the general business outlook and
Figure 1. Development of Electronic Media (TV as Example)
Traditional Television
25
See i.a. "Outlook of the development of technologies and markets for the European Audiovisual sector up to 2010", Arthur Andersen,
June 2002 (study commissioned by the European Commission); "Television and Beyond. The Next Ten Years". London: Independent
Television Commission, 2002; "Future Reflections. Four scenarios for television in 2012". A Condensed Report of a scenario analysis
study for the Future Reflections Conference. Bournemouth: Bournemouth Media School, November 2002 (with research support from
the Independent Television Commission and the British Screen Advisory Council).
13
the volume and potential of individual markets. One may
anticipate that in keeping with the cumulative development of the media to date (i.e. new delivery techniques
did not supersede the former, but only enriched the existing offering) the traditional form of point to multipoint TV
will remain accessible for quite a while.
Nonetheless, digitisation and the convergence of traditional TV with the new IT-communications technologies
will lead to the transformation of the image of television.
The multiplicity of "platforms" and radio and TV receivers will make the interoperability of different networks
and terminals a future must. This can be assured by an
already existing standard – MHP (Multimedia Home Platform). Thanks to that it will be possible to receive programmes and services offered by different broadcasters
and suppliers using different types of TV receivers and
multimedia PCs. In other words, any application transmitted over any network by any broadcaster will be "understood" by all standard home terminals. The application
programming interface (API)26, i.e. the software of the settop box will be the key to it all.
3.2. New Technologies in the Media – Future Chal−
lenges for Legislation and Regulation
The widespread introduction of new, digital technologies in the media in production (already implemented),
in distribution (advancing digitisation of the form and
content) and reception (growing importance of the PC
as a terminal for "media consumption") is presenting
new challenges to the design of media legislation and
regulation. Some of the problems discussed below will
become fully visible probably only in the next decade,
but the paths leading to their solution must already now
take account of the prospective consequences for the
broadcasters.
Full "digitisation" of media production, distribution
and consumption
We are soon going to witness a full digitisation of the
media (including the traditional media), i.e. the products,
their distribution and consumption (reception) will have
the digital form. Digitisation may also reach "back", which
means that programme archives will be converted to digital format. Content will be digitised in standardised formats, making it easy to combine text, image and sound
in various configurations, depending on the intended purpose. At all times, it will be also possible to record it and
distribute/broadcast in traditional form. There is a variety
of practical applications form new media combining the
features of electronic products and traditional "e-paper"
type products. Theoretically, all media in the digital form
will be deliverable directly to consumers'/receivers' homes over a fast Internet connection.
26
14
Table 2. Digital Television (Interactive): Growth
Prospects
„Platforms”
(delivery systems)
Services
Interactive TV
Terrestrial channels Navigation tools (EPG, Pilot,
Mosaic)
Pay-per-view
Satellites
Interactive applications
(examples)
CATV
Interactive information services
Interactive video browser
Internet
Weather forecasts on demand
("webcasting")
Electronic gaming
Sports (results, information
ADSL *
about athletes)
E-mail
UMTS **
TeleBanking
Telesales
HDTV
Video on demand
Internet via TV
"Personal" TV (PVR, NVR)
* ADSL (asymmetric digital subscriber line) – technology allowing
high-speed digital transmission (e.g. TV signal or interactive services) over copper pairs without interrupting calls.
** UMTS – third generation telephony.
The remaining barriers between the individual me−
dia and between electronic and traditional media will
be overcome (all the latter will have their digital co−
unterparts). We will witness a full convergence of the
media and a competitive advantage of companies
having simultaneous access to press services, au−
dio and video materials. The preparation of multime−
dia content will become a standard in the manufactu−
ring of media products, whereas content differentia−
tion for the needs of the press, radio, television or
the Internet, will only be a derivative of that standard.
All the media will be distributed over telecommunica−
tions networks, including satellite links and wireless
networks. Fast and secure data transfer, customer
data protection (preferences, micropayments, perso−
nal data, credit cards), delivery to home terminals
and collecting payment for individualised services are
taking on a paramount importance. The need for an
integrated media and telecommunications regulation
will become even more obvious.
The media are becoming increasingly interactive
and increasingly resemble the PC.
It is interactive digital television, with better image,
sound and many additional services, including video-on-
El¿bieta Kindler-Jaworska, "MHP", Wizja Publiczna, No 8, 2000, pp. 22-23.
As asynchronous television reception using digital
VCRs (PVRs) already used in the USA or TiVo and VOD
(providers store programmes of our interest on their servers and can send them to us at any time against a fee)
become more widespread, receiving television programmes will start resembling downloading files from the Internet, rather than the current real-time television reception.
There is more to the revolution in the viewing of such programmes than just asynchronous reception offered by the
PVRs. Polls carried out amongst PVR owners show that
90% of the viewers opt for viewing with a 10 minute lag
relative to the real broadcast, but without advertisements.
This has been made possible by a technology known from
computers, i.e. buffering transmission on the hard disk
(which is the reason for the lag), which makes it possible
to skip advertisements.
The consequences of this evolution in the behavio−
ural patterns of TV audiences may have a fundamen−
tal impact on the business model of commercial
media, earning their living with advertising and may
force them to collect fixed fees for scrambled broad−
casts or turn to micropayments for the viewing of
individual programming units.
The fact that viewers will have the chance to sort
hundreds of digital channels according to programme
genres may soon lead to the disintegration of the so−
called programming schedule and watching TV will
consist in choosing readily available material stored
on the hard disks of companies holding distribution
copyrights. The future of digital radio (Digital Audio
Broadcasting – DAB) may be very similar.
One may also anticipate that at some future date,
the computer will remain the only electronic medium
in the hardware market, even though today's avera−
ge user may not associate its looks and simple han−
dling with its present form.
Equally revolutionary changes are to be expected in
digital cinema. There already are cinemas equipped with
digital projectors and satellite antennas or fibre optic
cables, allowing direct transmission from the servers of
film producers and films can be shown, theoretically, "on
demand" for a small group of viewers. Theoretically, films
can be delivered in digital form (over networks or by satellites) to customers' homes, which will improve their
competitive edge over television or DVD.
These potential consequences of the introduction
of digital cinema would imply massive savings on di−
stribution costs, intermediaries and transaction costs,
unprecedented flexibility with regard to repertoire,
a further segmentation of the audience (ever smaller
projection rooms, movies on demand). The business
model in this case may consist of direct settlement
with the movie studio (like with an author of a book
or journalist selling his article directly to end−users).
Improved data compression standards are offering
new possibilities for the development of streaming
media.
Expanding technical capabilities in media content distribution over networks offered by greater bit rates and
network capacity, is accompanied by the successful development of new data compression algorithms, which
makes it possible to offer new services in existing networks and their more effective use. The popularisation
of such compression standards has enabled even the
owners of slow links to use real-time streaming media in
the Internet, which improved the prospects of this media
distribution channel. The ability to transmit compressed
files with music or movies has also had other consequences: the popularity of peer-to-peer file exchange programmes has led to a significant decline in record companies turnover over the past few years and a decline in
DVD sales.
The shrinking of multimedia files (after compres−
sion) and the increased computing power of PCs will
lead to an ever greater use of streaming media. An
increasing part of media "consumption" will be trans−
ferred to computers, while computer hardware itself
will move into living rooms, as home entertainment
centres (technical and economic considerations seem
to favour this solution: adding new, multimedia func−
tionalities to a computer and its upgrade are much
simpler and easier than the replacement of domestic
consumer electronics). Parallel to that the risk of ille−
gal copying and violations of intellectual property ri−
ghts will increase. Collecting royalties will become in−
creasingly difficult, which may lead to the development
of new forms of royalty collection (e.g. focus only on
the taxation of the media).
A dynamic growth of various platforms enabling
customers to use the media is to be anticipated. It
will be possible to receive TV or radio stations using
analogue technology with traditional domestic equip−
ment, but also using DTT, satellite, cable or through
the Internet (so−called streaming media) using note−
books or palmtops connected using wireless ne−
tworks. 3G (UMTS) telephony will soon become ano−
ther platform for media reception, as transmission
speed makes it possible to watch movies in real time.
Digital recording, universal scrambling and video and
audio compression standards, rapidly falling prices for
multimedia PC upgrades (multi-channel sound cards, TV
and radio tuners, connection to digital video or still cameras, large monitors with a resolution better than that of domestic TV sets), the popularisation of free (included in the
operating system) software for the amateur reception and
demand, software upgrades, diagnostics and repairs that
will imply the greatest changes for the broad audience.
Introducing such TV will necessitate upgrading traditional TV sets (return channel adapted to Internet communications, operating system, hard disk and programming
of recording on hard disk), which will make them increasingly similar to personal computers.
15
creation of multi-media products – all this stimulates the
production programmes by amateurs, while their low distribution costs on the Web will increase the supply of
quasi-amateur forms of the transmission of streaming
media.
Apart from the continuing professionalisation of
commercial and public service media, accessible pri−
cing, accompanied by the ease of the creation and di−
stribution of new streaming media is opening up
a new field for amateur work and creativity (including
the creation of a new form of expression for the civil
society), which will be accessible on the Web to all
potential receivers worldwide. We can expect the
strengthening of "prosumption", i.e. a phenomenon
whereby media consumers will also become media
content producers.
Globalisation against Individualisation in Media Use
New technologies make it possible to receive media
from all around the world, which makes them one of the
strongest pro-globalisation factors. On the other hand,
given their global coverage, they are becoming increasingly individualised. As demand fragmentation and
market segmentation progress, we are witnessing a departure from the broadcasting concept, i.e. from point to
multipoint in favour of narrowcasting, i.e. reaching selected groups of receivers, who can receive an individualised range of specialised information, entertainment and
advertising. Thus, media globalisation is accompanied
by their parallel individualisation and personalisation (including the creation of unique services for Internet
users)27. This is driven by demand fragmentation and
rapidly progressing market segmentation into media products and services, which present new challenges for
mass broadcasters, forcing them to create specialised
thematic channels, making it difficult to find potential advertisers interested in reaching such narrow viewer groups, increasing competition in niche markets and various distribution platforms and creating increased pressure on turning towards a business model of services
provided for a fee, as opposed to financing from advertisements.
The concerted impact of the trend towards globalisation and individualisation of the media adds another complication to the contemporary model of media consumption, which more often than not appears to be volatile,
impulsive, illogical, incohesive and irrational (see e.g.
zapping – switching from channel to channel without really devoting much attention to the content).
As the significance of interactive and individualised
media increases, the scope of regulation narrows and
its significance declines, but customers' freedom in−
creases. New interactive media offer a wider choice
from the entire global media offering, anonymously or
27
under an alias. Obtaining reliable results on viewers'
preferences becomes difficult, which undermines the
credibility of market research. This poses another pro−
blem to broadcasters and for content regulation at the
national level. Thus, the need for developing global
advertising standards, minimum requirements on the
protection of minors, etc. is becoming even more pres−
sing. Abandoning the business model based on adver−
tising in favour of pay−per−view solutions or microtran−
sactions makes it particularly difficult for broadcasters
to predict conditions for their growth and for regula−
tors, to pursue competition policies or evaluate the
growth prospects of individual industries.
Demand fragmentation and individualisation will lead
to the break−up of the media market into ever smaller
and specialised segments, frittering it down. This will
impact its profitability (the market will be less intere−
sting e.g. for FMCG advertisers), which may accelerate
the transition from the model of a broadcaster finan−
ced with advertising to a model of monthly fees or to
pay−per−view.
Such a fragmented market will be also more diffi−
cult to monitor and regulate, competition will promo−
te the rapid rise of new undertakings and the ban−
kruptcy of others, programming flexibility, competition
for customers on many platforms and the consolida−
tion of the ownership of many various media. Under
such conditions, a strict licence renewal policy or
attaching broadcasting licences to specific profiles or
formats of activity may lead to the demise of an en−
tire industry or the flight of capital abroad, where
media policy is confined to the regulation of the ge−
neral conditions of competition. It is in this context
that the opinion about the end of traditional media
policy and regulation is voiced.
Compression of Time and Space for Media Con−
sumption – New Methods to Stimulate Demand for
Media
Another factor, which changes the nature of media
consumption, is time compression made possible by the
growing share of portable media (mobile handsets, notebooks, walkmen, discmen, multi-function palmtops).
The introduction of cheap, energy efficient miniature
memories and their widespread use enables these
small portable devices to store vast quantities of data
(audio, photo and video) turning them into portable electronic media players. Such devices make it possible to
more effectively use time, previously poorly used (commuting) or to confer a multi-functional character upon
time, which previously had a specifically determined
form (work, leisure, family duties). This makes it possible to increase the sales of new media products and
services, because new blocks of time are created, which
await consumption.
One might also add the blurring of borderlines between programming genres, their interactivity (short text messages, building the
scenario and evaluations depending on the reaction of the viewers) on-line and off-line (games, DVD).
16
On the other hand, using computers in media con−
sumption, moves the ethos of Internet users, accu−
stomed to using IT technologies for free (pirate or
freeware operating systems and software, free
exchange of files or other habits of the so−called
"easy rider") into the area of commercialised media.
The development of small, portable media allowing
the reception of a broad range of media services (in−
cluding radio and television) poses, inter alia, a new
challenge with regard to the formulation of the obli−
gation of the owners of new, multi−function, portable
devices to pay for radio and television licences and
a problem with proving the ownership of such rece−
ivers.
Expectations with regard to Uptake of New Media
Technologies by Households
Over the past two decades households in Europe were
the main place of entertainment for their members, which
is corroborated by increasing purchases of TV sets, radio receivers, audio equipment, PCs or game consoles.
The number of houses and flats with access to CATV,
satellite TV and (since mid 1990s) to the Internet was
also on the rise. This rapid saturation of households with
electronic media led to a situation, where in producers'
and service providers' expectations, it was the households rather than the corporate segment, that became the
main source of demand for new media technologies.
Investment in third-generation UMTS telephony, digital television or Wi-Fi access can pay off only when the
market for these products grows as big as the mass market for colour TV sets or VCRs in the 1980s or for Internet access and GSM telephony in the second half of the
1990s.
New media technologies offered to consumers do not
offer entirely new products, but only add new functionalities to already existing devices. The risk lies in the ability to persuade customers about the need and attractiveness of the purchase of these new services. After all, it
may turn out that consumers will not share the enthu-
siasm of producers focused on new technologies or that
the segment of "innovative" consumers is too small to
recover investment outlays.
Before starting a debate on the launch of new
media (e.g. digital terrestrial television), one should
carry out a market analysis and identify technologi−
cal trends, rather than rely on a strategy imitating
trends observed in other countries a decade ago. The
"value added" of new media technologies may prove
insufficient to persuade the mass consumer to
switch from CATV or digital satellite TV to DTT. It may
well turn out in the next five years that e.g. Wi−Fi
networks are by far a cheaper means of distribution
for digital TV or cellular telephony services, than ter−
restrial DTT or UMTS networks.
Greater Role of Women and Older People in Deci−
sions on Purchases of New Generation Media
Research on the evolution of family structures and on
the family decision-making process related to purchasing
decisions may provide a partial answer about the chances of introducing new media technologies into households. Until now, marketing strategies used by big media
corporations promoting their new technologies in the media focused mostly on men and young people. Also the
content (sports events on CATV or satellite TV, computer
games) of new media products is designed to attract men
and, in particular, younger consumers. From the demographic perspective, we may say that European households
are growing older, the youth sector of the market is losing
its significance, which is particularly visible in the Nordic
countries. Since the year 2000, the highest growth of Internet users was to be observed in the 50+ group and
women, i.e. groups, which the marketing strategies for new
technologies do not even target.
Among new factors, which influence households' decisions on the purchase and use of hi-tech media, are:
• the evolution of European families (less complete families, less families comprising several generations
and less children living with their parents);
• a growing proportion of women being main family providers and a corresponding increase in their bargaining
power in family negotiations on purchasing strategies;
• a growing proportion of relatively young and affluent
households of retired people, who took home their
work habits of using computers and who actively use
e.g. e-mail to keep in touch with the family (also- or
even mostly – with their grandchildren's generation)
and friends;
• proficiency in the operation of technical novelties and
openness to them amongst learning women, only entering the labour market and adult life;
• a more global or international range of consumers'
contacts or interests, starting with their friends, through
purchases on the Web or searching its resources in
connection with work or hobbies;
New forms of media use are also affected by the phenomenon called space compression – new communications technologies make it possible to immediately circulate news, image and sound, offering billions of people
a chance to simultaneously watch great political or cultural events. Distance no longer matters much to the consumers of contemporary media, because the rest of humanity knows as much about an event and at the same
time, as a person being at the centre of action.
Increased time supply and a broader spatial reach of
the media (effects of the compression of time and space
of media consumption) are quickly put to use by the commercial media. Activities previously free from this phenomenon are being progressively commercialised. This
phenomenon will intensify with the progressing fragmentation of free time and an ever greater number of media
undertakings and reception platforms will compete to put
this time to increasingly diverse uses.
17
• an inter-generation alliance between middle-aged parents (who have been using new media for nearly two
decades) with their children, born out of the benefits
provided by new technologies.
The multiplicity of new media access platforms and the
numbers of electronic devices in households (exceeding
one per household for TV sets or radio receivers) offers
the chance to use many media and programmes simultaneously and without conflicts, but at the price of individual reception (instead of a family gathered before the
TV set). Internet use is also evolving in this direction.
Future households will have more media and more diversified media, but the use will be more diverse, individualised, less attached to sex stereotypes, but these will
no longer be "family" media in the sense of the TV set of
the sixties or seventies. Also, these products will to
a smaller extent relate to the technological understanding of modernity. Their success and mass character will
therefore largely depend on attractiveness to women.
Increasingly, it will be women and older people, who
will make decisions about purchasing new generation
electronic media, associated services, choice of pro−
grammes and viewing times. Equipment producers
(simplifying operation, different marketing and promo−
tion channels), as well as public service and com−
mercial broadcasters will have to adjust to their gre−
ater role in demand for the media. This applies not
only to the future structure of programmes, but also
to broadcasting hours, aesthetics or a more conse−
rvative approach to moral standards, a greater repre−
sentation of these customer groups in various custo−
mer panels, media advisory bodies, etc. It will pose
a new challenge both for the public service remit of
the public service media, for the offering of the com−
mercial media and for regulators.
Rivalry with the USA and Japan
The rivalry between the European Union and the United States for the position of the leader of the "new economy" is a broader context for the introduction of new
technologies. On joining the EU Poland inscribes itself
in this context as a participant of research or implementation programmes promoting such technological and civilisational projects as e-Europe. This is done on the
terms recommended by the European Commission (e.g.
mandatory universal service, also by ISPs), on terms dictated by social solidarity, but certainly on less competitive terms than in the case of American companies, which
do not have such obligations.
Nonetheless, given the EU's technological delay and
lack of public funding to support new technologies in digital telephony and digital terrestrial television, tacit ap-
28
proval was given for new technologies serving the development of the information society, to be developed on
commercial terms, mostly by large, transnational corporations. Thus, approval was also given for entertainment
to be the carrier of new technologies in the media, as that
is the profile of the programme offering of these companies and their philosophy designed to attract the mass
audience and fill their advertising order books. Adopting
this conception makes for a more liberal approach to capital concentration processes in the media, as well as for
the tempering of restrictions on foreign capital, especially American capital.
On joining the EU Poland will have to put up with
a more tolerant attitude towards foreign, "non−EU"
capital in the media, including the entry of great
transnational corporations into its market, which
will finance investment in new media technologies
against economic and programming freedom in the
Polish market.
3.3 Electronic Media versus the Economy
Technological media development and the associated
economic processes favour the rise of a single sector of
multimedia products, services and organisations. In generating profits they contribute to the GDP and in developing
– they account for an increasing part of that GDP. Electronic media are an important sector of the economy, which
increases employment and GDP. Technological progress
also contributes to this process. The consequences of
convergence, which extends the way from the broadcaster
to the receiver and introduces many intermediate stages
in the form of new market players, are a good example.
Convergence along with quickly increasing demand
for programming and closer integration between content
and programme producers with distribution networks are
fashioning the media industry into a value-added chain.
The ways these companies operate and their relationships are a new focus of interest for media policy and
legal regulation.
Convergence accelerates the development of the
"content industry"28, which offers a broad range of services from advertising and marketing, though education
and distance learning, film production, games, gambling,
health advice and e-health, catering to hobbies and lifestyles, financial services, catering to the needs of children
& the youth, B2B (business-to-business) services, B2C
(business-to-customer), record and music production,
information services, shopping and electronic commerce, sports, travel and tourism.
The participation and intermediacy of the media and
teleinformation in all these areas is driving their growth
and turning them into i.a. media products. Convergence
See "Content economy in Europe. New opportunities for convergent services". United Nations World Television Forum, New York,
November 16-17, 2000.
18
* STB – Set-top box
** Subscriber Management System
also gives birth to new services and offerings at the junction
of previously separate media platforms, so-called "hybrid
services".
Below are a few examples of this phenomenon taken
from British practice29:
• Mobile telephony + press = WAP technology;
• Press + IT= Internet press, newspaper websites;
• IT + telecommunications = Yahoo + MCI;
• Telecommunications + TV = Open (BT + BSkyB), interactive television offered to all digital TV subscribers,
including value added services;
• Television + entertainment = Time Warner + AOL;
• Entertainment + retail trade = Disney Stores;
• Banks + mobile telephony = phone banking
All the above are new industries, which generate turnover and drive economic growth.
According to the Lisbon Strategy30, the European Union is to become the most competitive knowledge-based
economy by 2010. Popularising new IT and communications technologies in the economy, as a precondition of
effectiveness, productivity and competitiveness of companies is a central element of this strategy. The European Union looks at media and new technologies, such as
digital television and their applications as a mechanism
designed to drive economic, technological and civilisation progress of European nations.
European Commission Communication "Electronic
Communications: the Road to the Knowledge Economy"
(COM(2003) 65 final, Brussels, 11.2.2003) reads:
The importance of the electronic communications sector lies in its impact on all other sectors of the economy.
It offers the potential for the organisations to make best
use of their investment in information technology, to increase productivity and quality. The sector is therefore of
fundamental importance to the full development of the
knowledge-based economy. Higher productivity means
29
more rapid economic growth, higher employment and
greater social cohesion. It is one of the objectives of the
Lisbon Strategy, aiming to transform the face of the European Union in the areas of the economy, society and
environmental protection by 2010.
The French IDATE research institute uses the term
"DigiWorld" to refer to the sectors of the economy undergoing digitisation (services and telecommunications infrastructure, services and IT equipment, audiovisual services and electronic household equipment). In the year
2000 "DigiWorld" generated nearly 9% of the global GDP
(6.8% in 1995). Audiovisual services (TV, video and cinema) accounted for 20% of that figure and telecommunications services for 30%. In the countries of Western
Europe "Digi World" enjoyed a total turnover of EUR 808
billion and in the CEE markets – EUR 82 billion31.
3.4 Media, Advertising and Telecommunications
Market in Poland
When compared to national economic potential, welldeveloped, fast-growing media and telecommunications
are becoming increasingly important sectors of the economy. Their economic potential, which is still far from
being fully utilised, is closely correlated with overall economic growth.
3.4.1 Macroeconomic Considerations
Nearly 11 million households have a disposable income
of slightly over PLN 2,000 per month and on the average,
they spend about PLN 609 per person per month. An average Pole spends about PLN 7290 per year, whereof a little
over 3% on culture (PLN 226 in 2001). In money spent on
culture 19% represents newspapers and magazines, 15% –
licence fees and 13.9% – CATV. Thus, the press, radio and
TV (including public service media) account for just under half
See Sian Davies, "Predicting the Future", The SIS Briefings, EBU, Number 36 (December 2000, January 2001).
30
See "Lisbon Strategy – Implementing Change. Information of the European Commission at the Spring Session of the European Council
in Barcelona, Brussels 15th January 2002" and "Strategia lizboñska oraz konkluzje z posiedzenia Rady Europejskiej w Barcelonie –
konkluzje i wnioski dla polskich przedsiêbiorstw" (Lisbon Strategy and Conclusions from the Session of the European Council in Barcelona – Conclusions for Polish Entrepreneurs). Warsaw: Department of Economic and Social Analyses of the Office of the Committee for
European Integration. See also "Industrial Policy in an Enlarged Europe". Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions. COM(2002) 714 final. Brussels, 11.12.2002;
"Seizing the Benefits of ICT in a Digital Economy". Meeting of the OECD Council at Ministerial Level. Paris: OECD, 2003.
31
Figure 2. Stages on the Road of Television Signals to Viewers
See "DigiWorld 2003. The European way to think the Digital World". IDATE Foundation, www.idate.org.
19
Figure 3. New "value−added generation chain" resulting from convergence
(47.9%) of total spending on culture. The Poles spend ap−
proximately EUR 960−970 million per year on the media32.
Demographic trends in Poland are not positive. The
next two decades will see the population grow considerably older: comparing with the year 2000 in 2010 there
will be 20% more people in the post-production age (women above 60 and men above 65), while the productionage bracket will have grown by a mere 5.9% and the
number of the youngest (under 19) will have fallen by
10%. These unfavourable changes will continue until the
year 2020. From the perspective of the media, as de−
monstrated by the currently observed patterns, the
ageing of the population will probably result in incre−
ased interest in the press, radio and television.
Over half (54%) of Poles living in rural areas have only
elementary education or no education at all and only 2%
– university level education, while in the cities, less than
30% have elementary or no education and nearly 10%
– university level education. This education structure
offers conditions, which favour the commercialisation
of the media (widespread acceptance for simple en−
tertainment programmes at the expense of the more
ambitious ones), even though in the longer perspec−
tive we may observe positive changes associated
with the educational "boom" of the nineties.
Two thirds of the Poles don't speak any foreign languages, only one in hundred knows two languages or more
and one in three declares to know one foreign language,
with Russian being the dominant one. Naturally, changes
are to be expected, but the current structure of the know−
ledge of foreign languages clearly shows that only the
media using the Polish language, both printed and
electronic, can aspire to capture the mass audience.
Clear-cut preference for learning English shows that programmes in e.g. German will have limited social coverage. On the other hand, the market potential and prospective economies of scale may stimulate foreign broadcasters to directly invest in radio and television stations.
32
20
Year 2000 exchange rates (1 US$ = about 1.16 )
More than 28% of the population is concentrated in big
agglomerations and social-demographic data show, that
their inhabitants are better educated, have a higher income potential, are younger than the national average
and have a better knowledge of foreign languages. It can
be expected that the media of the big agglomerations
(alongside the national media) will be the first to cap−
ture the interest of foreign media investors.
3.4.2 Advertising Market
Advertising accounts for most of the revenues in the
majority of the media, printed or electronic. The rapid
growth of the advertising market in the nineties be−
came the key factor in the quantitative growth of the
entire media system.
Table 3. Growth of the Advertising Market in Po−
land (averaged estimates, net)
Year
2000
2001
2002
2003
2004*
Advertising
Expenditure
(PLN m)
4611
4384
4010
4100
4264
Expenditure
as % of the
GDP
0,65
0,58
0,52
0,51
0,51
Expenditure
per Capita
(PLN)
120
114
104
106
111
* Forecast
Until 2000 the advertising market has been growing
by up to scores of percentage points per year, achieving
a 0.65% share in the GDP and nearly PLN 120 in advertising expenditure per capita. However, in the later years,
economic transformation and economic growth slowed
down, which had a clear impact on advertising expenditure. The years 2001 and 2002 saw a clear decline in
3.4.3 TV Advertising
The television market in Poland is made up of national, supra-regional, satellite and thematic channels.
Technically, only Poland's national TV and commercial
Polsat TV have near-national coverage. TVN has around
80% national coverage and other stations have supraregional coverage. This modest offering of terrestrial
channels is complemented by satellite channels, created
with Polish viewers in mind (TVN24), or being a Polishlanguage version of foreign thematic channels (e.g. Discovery, FoxKids, MiniMax and others).
Table 4. TV Industry Revenues in 2002 (estimates)
Figure 4. Structure of Advertising Expenditure in
Poland in the Years 1997−2002
Source
Advertising
TV licences
Other, public sector
Other, private sector
Total
*1
Amount
Amount
(E
millions)
(PLN millions)
2 378
537
150
120
3 185
541.7
122.3
34.1
27.3
725.4
= 4,39 PLN (2003)
The major part of the TV industry's revenues is derived from the sales of advertising time.
There is much to indicate that in the coming years the
overall level of advertising expenditure will be a deriva−
tive of changes in the economy, especially of its growth
rate.
Changes in the overall level of advertising expenditure do
not preclude major shifts in the structure of revenues of the
individual media from advertising, given that the proportions
in Poland clearly differ from typical European proportions.
The mean values for the years 1997-2003 were: 60%
for television, 7.5% for radio, 26.5% for the press and 6%
for other forms of advertising. Thus, the share of elec−
tronic media in the traditional sense of the term amo−
unted on the average to 66−68% of total advertising
expenditure. European proportions in this area are si−
gnificantly different33. The share of electronic media
rarely exceeds 46−50%. From this perspective, as confirmed by data from the period of a dynamic growth of
advertising expenditure, e.g. in the years 1999-2000, one
can expect that electronic media will get a relatively
smaller piece of the advertising pie. Some growth in
this market in 2003 seems to corroborate this observation: estimates point to a decline of gross expenditure
from 62% to 58%.
The existing limitations concerning licensed broadcasters' financial reporting make it difficult to accurately
estimate the revenue potential of the television industry.
Available data on TVP and market estimates by AGB,
Expert Monitor and other research companies make it
possible to put the real (net) revenue generation po−
tential of the TV industry in Poland at about PLN
3,185 million in 2003, i.e. EUR 720 million plus. TVP
licences account for about 17% of that amount, i.e.
about EUR 122 million. The public broadcasting sec−
tor accounts for slightly over 50% of TV revenues in
Poland.
Broadcasters also make money by selling programme
rights, offering services to various buyers or engaging in
other business and financial activities. For TVP revenues from these activities amounted to some PLN 150 million, i.e. slightly over 9% of total revenues. It is estimated
that in the case of other broadcasters, these revenues
accounted for some 8% of advertising revenues. The
adjusted net value of the TV advertising market has
been estimated at about PLN 2,378 million, i.e. EUR
542 million.
The share of TV advertising in media advertising is
very high, comparable only to the level of that expenditure in Italy (in other European countries press advertising
advertising expenditure. The rapid growth of the market
made it possible to quickly increase earnings and increased the profitability of prospective investment.
Since 1998 the level of advertising expenditure has
been approaching the level of 1% of the GDP, but recession postponed the achievement of this goal.
International comparisons show that Poland's level of
advertising expenditure has come to a level comparable
to most EU Member States. The real level of adverti−
sing expenditure at below 1% of the GDP points to
the existence of a certain growth potential in the ad−
vertising and media markets in Poland, but this adjustment will require many decades.
33
Many private firms deal with the analysis of the Polish media market. To name some: Expert Monitor, AGB Polska, Agora Studio, CR
Media. These companies adopt different methodological assumptions in their analyses and have different test samples, which is why
their estimates produce different results with regard to both gross expenditure, as well as the structure of advertising expenditure in the
media or in particular media industries. The data provided here represents averaged values, as far as the structure of expenditure is
concerned, from many studies and are based on the so-called "hard data" of public service media companies (TVP, Polish Radio and
regional stations) or companies listed on the Warsaw Stock Exchange (Agora, Interia, Onet).
21
has a higher share in overall advertising expenditure
than TV advertising). Thus, we can expect that the
share of TV advertising in Poland in total advertising
expenditure in the media will decline in the future.
Macroeconomic proportions and international com−
parisons show that television advertising in the co−
ming years may grow at a slower pace than other
forms of media advertising, in proportions determined
by overall economic growth. Massive discounts offered
to advertisers, which often exceed 60%, are an indirect
confirmation of this phenomenon. Thus, television is taking over a part of advertising budgets, which have previously been earmarked for the press and other media.
In other words, the development of electronic media is to
some extent taking place at the expense of the printed
media.
Assuming that the growth of the television advertising
market is correlated with overall economic growth, one could propose the following working hypothesis for a revenue
forecast. Assuming that the GDP growth rate in 2003 will
be 3% and 5% in the following years and that there will be
a certain increase in the growth of advertising expenditure
in the first years following Poland's accession to the EU, i.e.
in the years 2005 and 2006, one could tentatively estimate
the size of this market as presented in Table 5.
The adoption of these forecasts would imply that one
should not expect the television advertising market to be
bigger than PLN 1 billion before 2010. The relative weakness of the advertising market mandates a careful approach to any solutions related to the redistribution of
funds generated from advertising.
3.4.4 Radio Advertising
The radio market in Poland is made up of some 220
stations, whereof 22 are public service. Unlike most European countries, there are also commercial stations with
national coverage (RMF FM and Radio Zet) and a religious radio station (Radio Maryja). On top of that, there
are several supra-regional stations and 144 local stations. The radio sector is showing progressing consolidation, consisting first of all in the concentration of local
stations in groups (Eska, Agora, Ad. Point, Radio Plus
network and others).
The organisational consolidation of public service
radio is an attempt at responding to the current chal−
lenges, which will probably be even greater due to the
Table 5. Forecast (moderate) of the Size of Poland's Television Advertising Market ( in 2003 prices)
Years
2003
2004
2005
2006
2007
2008
2009
2010
Growth rate
-
5%
7%
6%
5%
5%
5%
5%
TV ADVERTISING
2378
2497
2672
2832
2974
3122
3278
3442
TV advertising (w mln )
542
569
608
645
677
711
747
784
* 1
22
activities of powerful groups of commercial radio bro−
adcasters.
Like in television broadcasting, advertising is the main
source of revenues, except that it is not the dominant
source of revenues for public service broadcasters.
Revenues of the radio industry are estimated at nearly PLN 800 million. The clear difference in comparison
with the television industry consists in the proportion of
public funding – licences account for over 42% of the
revenues and the public sector has more than the half
(56%) of total radio industry revenues in Poland. The
advertising revenues of the public service sector do not
represent a major threat to the commercial sector, as they
account only for some 20% of the entire market of radio
advertising. What is a real problem of the entire radio
industry is the strong centralisation of advertising expenditure in large agglomerations, with a clear preference
for national and regional stations, at the expense of local
and – to a lesser extent – social broadcasters. This produces a lack of equilibrium, leading to a visible underdevelopment of local broadcasters. Moreover, the financial
situation of public radio stations is hardly the best, which
leads to the commercialisation of their programming,
despite the fact that they are financed mostly with public
funds. The commercialisation of their programming is
mostly derived from the need to finance the overblown
structure of regional public radio. Many regional stations
are striving to get advertising orders only to maintain
current liquidity, at the expense of the commercialisation
of their programming. Thus, they generate revenues,
which account for an important proportion of their budgets, but at the expense of their public duties and to the
detriment of the growth of local commercial broadcasters.
It appears that improving their organisational effectiveness and a precise definition of their programming duties could be a factor contributing to establishing a certain equilibrium in the radio industry.
Considering the share of licence fees and other, nonadvertising revenues in the financing of public service ratio, one should expect that a better effectiveness of the
public sector (e.g. thanks to new organisational solutions),
imposition of programming obligations (programming licences for public service radio) and a better collectability
of licence fees should provide relative financial stability in
the Polish radio industry. The relative share of the radio
industry in advertising expenditure (6.5-8.5%) remains slightly above the EU average, so one should not expect
major changes with this respect in the nearest years.
= 4.39 PLN (2003)
Table 6. Radio Industry Revenues in 2003 (estimates,
net)
Source
Amount
(PLN millions)
(
Amount
millions)*
Advertising
364
82,9
TV licences
375
85,4
Other, public sector
20
4,5
Other, private sector
40
9,1
799
181,9
Total
*1
= 4,39 PLN (2003)
From the perspective of macroeconomic proportions
and international comparisons one can safely assume
that radio advertising will grow at a pace comparable to
GDP growth. Making the same assumptions as for television, we can adopt a forecast for the radio advertising
market. It is presented in Table 7.
In the regional cross-section, the radio market is clearly dominated by national broadcasters, who control
over 80% of the market. Moreover, commercial national
and supra-regional broadcasters have a considerably
higher share than all of public service broadcasters combined (national and regional programmes of public service radio). There are only two voivodships (£ódzkie (voivodship capital – £ódŸ) and Silesian) where local radio
stations play a major market role.
The radio market is dominated by national and supra-regional commercial broadcasters, who have been
successfully increasing their market shares, achieving
an average market share of 57% in 2003 and showing
growth in 14 out of 16 existing voivodships. Commercial radio networks expand at the expense of public
service radio, whose average share has fallen to an
alarmingly low level of 28%, with its share falling in 12
voivodships and showing a minor increase in only three.
Local radio stations, remaining outside radio networks
and operating alone, are certainly suffering the greatest
losses as far as market shares are concerned. In 14 voivodships their market share fell from 18% to 15% in just
one year.
One can expect further consolidation efforts in the
radio industry, which will lead to a situation where the
dispersed local public radio stations will have to con−
tend with commercial radio networks and be gradually
marginalised. Injecting additional funds, which would
stabilise public service radio, as well as social and lo−
cal broadcasters, could offer a chance to check these
trends, which are unfavourable for overall market
growth and its diversity.
If one were to take the above data and try to explain
the relatively low share of local broadcasters in the market, one would have to say that this is due to both public
sector broadcasters and commercial national and supranational networks. The market structure of the radio industry is by no means uniform. At the national level, it resembles an oligopoly (public service broadcaster PR SA, plus
two commercial broadcasters to be reckoned with in economic terms – RMF FM and Radio Zet). At the local level
the market often looks like a case of monopoly competition (with a clear inclination for programme formatting,
which is characteristic of this structure). Interestingly, at the
level of the national oligopoly, the market structure is the
same as in the case of television – a public service broadcaster and two powerful commercial broadcasters, whereof one with foreign capital participation (Polsat – ITI).
The one thing that makes the difference between the
certainly more competitive structure of the radio market
and the television market is the existence of numerous
local broadcasters and the fact that public service radio
has maintained its structural ability to deliver on its public service remit (licence fees account for some 75% of
its revenues and advertising for slightly over 20%).
3.4.5. Press Advertising
The press market in Poland is made up of nearly 4,500
titles, which includes 42 dailies. Economically, this is
a highly diversified group: from big publishers with considerable sales and advertising revenues to small, one-title,
low-circulation publishers. Economic information on pu−
blishers is even scarcer than on electronic media.
If we assume that this group of publishers represents
some 70-80% of the money-making potential of the press
sector, then total revenues in the press sector can be
estimated at the level of PLN 3,655-4,177 ( 914-1,044
million).
The share of advertising revenues in the press sector
varies widely, but on the average it is about 30%, i.e.
about PLN 1,100 million. There are many reasons behind
this state of affairs, but strong diversification in the activities of publishing companies, which often operate in
many related industries, has a particular importance.
In times of recession intermedia competition between
the press and the electronic media tends to become more
intense. Aggressive discount policies followed by TV broadcasters have led to a higher share of television in the
advertising market and partly limited press publishers'
Table 7. Forecast (moderate) of the Radio Advertising Market in Poland (in 2003 prices)
Years
2003
2004
2005
2006
2007
2008
2009
2010
Growth rate
Radio advertising (m PLN)
Radio advertising (mln )
364
83
5%
382
87
7%
409
93
6%
433
99
5%
455
104
5%
477
109
5%
502
114
5%
527
120
23
Table 8. Radio Market in Poland in 2002−2003 (in pa−
rentheses market shares in 2002)
Voivodship
Commercial radio
Public
service radio National/
Local
supraregional
Dolnoœl¹skie
24 (23)%
58 (54)% 18 (23)%
Kujawsko-Pomorskie
31 (35)%
53 (44)% 16 (21)%
Lubelskie
33 (37)%
61 (57)%
Lubuskie
18 (27)%
66 (54)% 16 (19)%
£ódzkie
31 (33)%
43 (37)% 26 (30)%
Ma³opolskie
23 (25)%
63 (54)% 14 (21)%
Mazowieckie
33 (33)%
49 (45)% 18 (22)%
Opolskie
45 (38)%
48 (53)%
7
Podkarpackie
27 (31)%
66 (54)%
7 (15)%
Podlaskie
28 (32)%
60 (56)% 12 (12)%
Pomorskie
24 (25)%
62 (60)% 14 (15)%
Œl¹skie
24 (25)%
48 (41)% 28 (34)%
Œwiêtokrzyskie
37 (40)%
54 (48)%
Warmiñsko-Mazurskie
28 (33)%
62 (53)% 10 (14)%
Wielkopolskie
27 (26)%
50 (52)% 23 (22)%
Zachodniopomorskie
23 (26)%
67 (61)% 10 (13)%
Average
28 (31)%
57 (51)% 15 (18)%
6
(6)%
(9)%
9 (12)%
*Source: Radio Track, SMG/KRC
revenues, especially those of local and regional press.
Easing emphasis on the financing of local and regional
electronic media with advertising revenues could become an element of national media policy, consisting in the
balancing of the market and promoting a harmonious
growth of all of its elements.
There are several reasons for which the press
market is important from the perspective of the elec−
tronic media:
• increasingly, the press is becoming an electronic
medium (Internet) and, as the experience of more
developed countries shows (e.g. USA) electronic
publications are making increasing use of audio
and audio−video files;
• the press is interested in investment in electronic me−
dia (e.g. Agora – radio and Internet) and such trends
may be observed in the EU, which fosters the deve−
lopment of multi−industry multimedia companies;
• the press is competing for the same advertising
budgets that channel funds into electronic media;
• the share of press advertising in Poland is much
lower than in EU Member States, which might po−
int to a possible reversal of the proportions, espe−
cially at the expense of television.
As far as the structure of advertising expenditure
is concerned, Poland resembles Portugal and differs
significantly from the European Union, especially with
regard to daily press. Forecasts concerning press
advertising may therefore be somewhat more optimi−
stic than for the electronic media, especially the TV.
What also matters from the perspective of the electronic
media is that the press is to a large extent owned by foreign
capital, which means that it's already past the period of capital
liberalisation, whilst the electronic media are only embarking on
that process in connection with Poland's accession to the EU.
3.4.6 Outdoor Advertising
The market of outdoor advertising has had its ups and
downs, which as experience shows, were determined by
changes in advertising law. Outdoor advertising comes down
to about 5.3 – 6.7 % of the entire advertising market and represents some competition for the electronic media, but first
and foremost, it supplements advertising campaigns.
Year 2000, when revenues reached the level of about
PLN 630 million (i.e. 157 million), was the best in the entire
history of outdoor advertising. A year later they fell to PLN
555 million ( 138 million) and to PLN 415 million ( 104
million) in 2002. This decline resulted from the ban on beer
and cigarette advertising. In 2003 outdoor advertising accounted for about 6% of the advertising market and so the net
revenues remained below PLN 300 million. The share of
this sector is comparable to that in many other Europe−
an countries, which is why no major increase is to be
expected, but only a gradual recovery of the ground lost.
3.4.7. Internet Advertising
Internet advertising has been the fastest growing advertising sector, with far-reaching expectations and forecasts formulated with its regard. The experience of European countries to date shows that revenues from Internet advertising account for about 1% of the advertising
market. In the USA, Internet advertising already represents 3-4% of the market.
Table 9. Press Publishers' Revenues (dailies and
magazines) in 2002
* data on the basis of the "500 list"
24
Currently, some 7 million people are declaring that
they have Internet access, whereof nearly five million
confirm that they use the Internet at least once a month.
The Internet is quickly becoming a mass medium and the
typical Internaut is an attractive target for the advertisers:
typically 18-39 years old, well educated with above-average income, usually living in big cities.
The Internet market is already past the stage of spontaneous growth and a certain structure of size and influence
of Internet companies can be already observed. The market is dominated by large Internet portals such as Onet,
Wirtualna Polska, Interia, media-related sites, e.g. with
"Gazeta Wyborcza", "Rzeczpospolita" and others.
Onet (associated with ITI – TVN owners) and web advertising agencies, such as AdNet, Qnet, IDM/Net dominate the advertising market.
The media are eager users of Internet technology.
The press is the heaviest user (especially the daily
press), followed by radio (Interia and RMF FM) and to
a lesser extent by television, even though things are
changing even here (Onet and TVN).
Limited strategies implemented by media companies
on the Internet result from high costs and low access
quality. In the longer term, the liberalisation of telecom−
munications will bring along major changes also with this
respect. Internet access in Poland is probably among the
most expensive in Europe in terms of purchasing power
parity and unfavourable tax regulations may considera−
bly slow down changes in this area.
It must be said that new technologies are becoming
an increasingly important source of revenue for the electronic media. For example, in the years 2002-2003 short
text messages (SMS) and sponsoring accounted for nearly 11% of TVN's revenues34. Given the multimedia capabilities of 3G (UMTS) telephony, this direction of business growth seems to point to an ever greater importance of the integration of operations in the media and in
telecommunications.
In 2003 the media market in Poland generated annu−
al revenues of about PLN 8.2 billion ( 1.87 billion), whe−
reof the electronic media market in its traditional sen−
se – nearly PLN 4 billion ( 0.9 billion). According to
34
moderate forecasts, advertising, currently worth about
EUR 1 billion, is expected to exceed EUR 1.3 billion
around 2010. Macroeconomic prospects seem to favo−
ur the media.
3.4.8 Telecommunications
The telecommunications market is a collective concept
covering many specific services and types of activities.
The most important ones are:
• PSTN services – telephone calls and leased lines,
subscription, installation, network and equipment maintenance
• radiocommunications services – mobile telephony
• TV and radio transmission – transmission and reception of TV and radio signals for the general public
• data transmission services, including e-mail
The total value of the sector of telecommunications
services has approached EUR 7 billion (Table 12), the
bulk of it being represented by fixed telephony (about
55%), but mobile telephony enjoyed a much faster
growth rate. Data transmission and mobile telephony are
becoming increasingly important for the telecommunications sector. The growth of 3G telephony and of multimedia services will strengthen this trend and thus, telecommunications services will be increasingly dependent on
the content manufacturing sector, including information
and entertainment content.
The telecommunications sector is growing faster than
the economy as a whole, becoming an increasingly important factor in changes in the GDP structure (in 1996
telecommunications produced about 2% of the GDP and
in 2000 the figure rose to more than 4.4%).
The formal and legal environment is essential to the
growth of the sector. This is due to the licensing of telecommunications services and State supervision over the
Table 11. Advertising Expenditure in the Internet
(estimates)
Table 10. Forecast (moderate) for the Press Advertising Market in Poland (in 2003 prices)
V.Makarenko (2003) "Telezastaw", Gazeta Wyborcza, 4th October.
25
Table 12. Telecommunications Revenues (according to the Polish Central Statistical Office (GUS) in PLN
millions)
operations of the individual operators. The Law of 24th
August 2001 – Telecommunications Law is the fundamental legal act, which regulates activities in this sector.
The Ministry of Infrastructure and the Office of Telecommunications and Post Regulation (URTiP) assure the supervision of the telecommunications sector.
TP S.A. dominates the market of fixed telephony. The
mobile market is a typical oligopoly. Despite considerable progress, Poland still has a low density of fixed lines
per 100 inhabitants (about 30, while the typical figure for
Europe is more than twice as high).
January 2002 saw the full liberalisation of local and
long-distance markets. Apart from TP S.A., there are over
80 operators in the market, who have a 10% market share. The biggest competitors were Dialog (abt. 380 thousand subscribers), Netia (350 thousand), Telenet (about
100 thousand) and NOM (100 thousand). January 2003
saw the liberalisation of international telephone services.
Traditional PSTN is clearly in stagnation. Dynamic
growth concerns Internet access and mobile telephony.
The rapid growth of mobile telephony has produced
a situation where the number of mobile telephones exceeds that of PSTN lines (at the end of 2002 there were
11.9 million PSTN lines, while the number of mobile
users exceeded 13.8 million).
The 3G (or UMTS) launch in Poland is clearly delayed. In the beginning of July, GSM operators – Era, Plus
and Idea – requested that URTiP postpone the deadline
for the UMTS launch to 1st January 2006. Furthermore,
the operators want to have the date for extending UMTS
coverage to areas inhabited by over 20% of Poles postponed until the end of 2007 (now, the deadline is the
end of 2004) and the withdrawal of the requirement to
extend UMTS coverage to 40% of the population. In the
year 2000 the operators committed themselves to pay
EUR 650 million each for their UMTS licences, whereof
260 million was promptly paid to the State budget, while
the rest is to be paid in instalments spread out until 2022.
3.4.9. CATV
There are more than 520 CATV operators in Poland.
Between them, they have nearly 4.5 million so-called
subscriber terminals and some 2 million satellite TV sets,
which means that nearly 55% of households have access to a broader offer of TV channels.
Poland is Europe's third largest CATV market. The
market is dominated by several powerful operators, such
as: UPC, Aster City Cable, Multimedia Polska, Vectra,
TVK Poznañ, Dami, Toya, Œl¹ska Telewizja Holding. 15
biggest cable companies have over 3.5 million subscribers.
CATV operators offer over 400 channels, including an
increasing number of channels tailor-made for the Polish
market.
CATV operators enjoy the comfort of natural monopoly, with certain negative effects of this situation for the
customers (e.g. considerable price hikes, onerous termination terms, etc.)35. The CATV sector is undergoing consolidation and cable networks are carrying out technical
modernisation aimed at the digitisation of programme
distribution. The growth of CATV is one of important conditions for launching DTT in large agglomerations, as
demonstrated by the successful DTT launch in BerlinBrandenburg36.
Summary
The telecommunications market is nearly seven times
as big as the electronic media market and three times the
size of the total media market. However, telecommunications and media growth patterns are pointing to growing
areas of overlapping interests. Broadband Internet access, transmission of terrestrial digital TV, third-generation telephony services and the development of Wi-Fi are
examples of areas, which call for co-operation and regulatory cohesion.
4. CHANGES IN THE MEDIA POLICY AND REGULA−
TORY PRACTICE OF AUDIOVISUAL MEDIA
The analysis of regulatory practice in the broader context of media policy in 10 developed countries (France,
Germany, Italy, Finland, Sweden, Japan, New Zealand,
Australia, USA and Canada) commissioned from McKin-
35
An inspection carried out by the Office of Competition and Consumer Protection found numerous defects (having the nature of monopolistic practices) in contracts signed by CATV operators with their subscribers.
36
26
Over 90% of households in that area used CATV or satellite TV services.
• ensuring access to networks and services, i.e. access
to programme offering and other offerings;
• determination of standards applied to programmes
and efforts at their improvement;
• promoting quality;
• catering to the economic and technological development of the sector.
Faced with technological development, regulation is
increasingly focused on ensuring consumers' access
to the programme offering. This helps the growth of the
industry and averts the danger of the digital divide. It
means that media and regulatory policy should promote investment in new networks and services. Broadcasters and operators will make major investment decisions only when they see a chance to make them
profitable.
Given the increasing number of broadcasters, programme sources and information, regulatory policy is becoming increasingly focused on structure (i.e. ensuring
a market structure, which will exact appropriate behaviour on the part of the broadcasters, promote investment in
programme production and in programming quality), rather than on intervention in the operations of broadcasters and operators or development of provisions applicable to their operations. Amongst the tools of policy in
the above sense, we can include the funding of a public
service broadcaster or broadcasters, programme or investment quotas, certain privileges offered to commercial
broadcasters (e.g. exemption from fees for use of frequencies, as in France) against the realisation of certain
programming requirements, the limitation of media concentration, etc.
The level of per capita outlays on domestic programme production can be a measure of the effects of structural regulation. As the McKinsey & Company report shows,
with this respect Great Britain is second to the USA and
far ahead of all other countries, which must be attributed
to the high level of financing for the public service broadcaster and a very competitive commercial television market. In countries, where public spending is lower and
competition less intense, the prospects of achieving high
production output and high average programme quality
are much poorer.
Another visible trend is the expectation, that since convergence integrates different markets and media,
a new, more cohesive regulatory system will evolve and
that different media offering the same content will be
subjected to regulation based on similar principles. This
leads to both structural and other changes in the regula-
37
tory framework, including the integration of previously
separate regulatory bodies.
Ensuring and promoting access to programmes comprises, i.e. promoting the development of digital radio
and television, which includes incentives for broadcasters (e.g. guarantees of additional channels) and assistance in the transition to digital. The development of broadband networks also serves that purpose.
Among other things, the following serve the promotion
of high-quality programming:
• strengthening public service broadcasters and/or freeto-air (e.g. by banning moving the broadcasting of
sports events or films to pay channels);
• maintaining programme quotas, imposing programme
requirements also on pay channel broadcasters, concern for the high quality of the Internet offering (i.a. by
ensuring the presence of public service broadcasters,
e.g. the BBC on the Internet);
• funding for the production of certain programme genres.
Concern for the economic growth of the sector means
that we need to consider, whether the directions of media
and regulatory policy discussed here, really forward this
objective. Measures that regulators implement to achieve
other goals (e.g. the decision of the Dutch authorities to
impose a cap on the fees collected by pay channel broadcasters, introduced to ensure access to the broad public)
may at the same time financially undermine the sector.
Irrespective of the above, convergence and technological and market integration of the media prevent any
serious discussion about the financial perspectives of
any sector in isolation from situation in other segments.
Hence, as the McKinsey & Company report shows, the
attempts that many countries make to develop comprehensive electronic media policies and regulatory frameworks, capable of embracing the entire sector and pursuing a comprehensive policy, which would take account of the situation in all sectors.
5. DIRECTIONS AND GUIDELINES OF POLAND'S
NATIONAL MEDIA POLICY
Ensuring free speech and freedom of the media, as
prescribed by the Constitution of the Republic of Poland
and international standards, set out especially in the
Universal Declaration of Human Rights, in Article 10 of
the European Convention on Human Rights and Fundamental Freedoms and in the judicial decisions of the
European Tribunal of Human Rights38.
sey & Company consultants by the British Independent
Television Commission37, identified four main policy objectives in this area:
"Comparative Review of Content Regulation". A McKinsey Report for the Independent Television Commission. London: ITC, 1 May 2002.
38
See e.g. Marek Antoni Nowicki, "Kamienie milowe. Orzecznictwo Europejskiego Trybuna³u Praw Cz³owieka" (Milestones. Judicial decisions of the European Tribunal of Human Rights). Warszawa: Scholar, 1996.
27
Considering the special nature of radio and television
broadcasting the media policies of various countries have
been traditionally designed to achieve also other public
policy objectives in this area, set out in other legal acts:
tion, promoting competition, creating a favourable
climate for investment and the operation of business
undertakings, deregulation and limiting government
intervention in market mechanisms;
• in the area of the programming content of radio and
television, regulated by the Broadcasting Act, the objective is to safeguard the independence of the media, pluralism and diversity, meeting viewers' and listeners' needs with regard to information, culture and
education and also to protect minors and lastly – the
very existence and proper operation of public service
radio and television broadcasting;
2. On the other hand, this approach may, in a certain
way, threaten the achievement of public policy goals
of social, cultural and educational nature, traditionally
pursued in radio and television broadcasting and also
– the pursuit of new goals derived from changes in
social communication.
• with regard to the transmission infrastructure, regulated in laws dealing with communications, the goal is
to ensure proper frequency management, the possibility of broadcasting programmes and universal service provided by e.g. public service broadcasters;
• with regard to the market aspects of the functioning of
radio and television broadcasting, the aim is to protect competition through appropriate provisions in antimonopoly laws, but also to safeguard the good financial condition of the audiovisual sector as a whole.
Content regulation with regard to radio and television
programming also serves the pursuit of such public policy goals as: (1) safeguarding pluralism and diversity of
opinions; (2) safeguarding national and European culture; (3) protection of minors; (4) protection of human dignity; (5) consumer protection (e.g. through restrictions
on advertising and sponsoring).
The changes in radio and television broadcasting described above and in information and telecommunications technologies also entail changes in national media
policy. Certain goals become less important, but new,
major challenges appear.
The fundamental choice facing media policy in Poland
may be expressed as follows:
1. On the one hand, we should strive to possibly fully
activate the technical, market and economic potential of the media, as a key sector in the development
of the information society and knowledge-based society. This will be instrumental in civilisation transformations, economic growth and national competitiveness. Given the limited administrative and financial
capabilities of the government in this area and considering big and growing budget deficit, it appears
that this goal should be pursued through liberalisa-
In Table 13 we have presented potential threats, which
according to some authors may stem from changes in
radio and television broadcasting and the operation of
new information and telecommunications techniques.
In this situation, the goals of media policy should include, inter alia the elimination of information and cultural
gaps, promoting participation in public and political life,
promoting solidarity and social cohesion, protecting cultural identity and sovereignty.
Thus, media policy is faced with the choice of a single
regulatory framework for the media market, or a mix thereof
and with a choice of implementation methods from
a range beginning with "minimum regulation" (derived from
belief in market mechanisms and designed mostly to protect competition), through "market-opening" regulation (liberalisation, privatisation, deregulation aimed at the elimination of monopolies and at activating competition), "a regulation designed to correct market mechanisms" and
"market-shaping regulation" to, lastly – "regulation intervening in the market"39. Goal No 1 presented above speaks
rather for minimum regulation or market-opening regulation,
whilst Goal No 2 – for traditional regulation designed to
correct market mechanisms and intervene in the market.
CONCLUSION 1
Poland's national media policy should recognise
the significance of the electronic media and new tech−
nology and strive to liberate their market and techni−
cal potential. This is a precondition of the moderni−
sation of the economy and society and for bridging
the development gap separating Poland from the
more developed countries. Otherwise, it will be an in−
effective policy and inadequate in the face of reality.
Nonetheless, all solutions in the area of electronic
media policy and regulation must also take account
of social and cultural consequences, inter alia, to
avoid the negative consequences of the information
society, such as the digital divide, social exclusion,
weakening of cultural and national identity, weakening
of social cohesion or disruption of democracy.40
39
See Abigail Thomas, "Regulation of Broadcasting in the Digital Age". Department for Culture, Media and Sport, London, May 1999
(http://www.culture.gov.uk/thomastitle.htm)
40
This is emphasised in Recommendation Rec (2003) 9 of the Committee of Ministers of the Council of Europe on the democratic and
social consequences of digital technology in radio and television broadcasting. See also Article 151 of the Treaty establishing the European Community, which mandates that cultural aspects be considered in all actions undertaken by the European Union.
28
Consequences of market-driven
media
Commercial media do not deliver diversified and high quality programming
that the society needs and ignore minorities (so-called "market failure"),
while the viewers and listeners don't care much, because as in the case of
education, training or health care, they are prepared to spend less money
on high quality programming, than they should in their best, long-term interests.
"Digital divide", social exclusion
New techniques will restore or even maybe strengthen social divisions,
marginalising individuals, groups and regions, which for social, material or
cultural reasons will not be able to take advantage of them.
Citizenship, cultural identity, sense
of community and social bonds
May be weakened by media globalisation and commercialisation, especially of the electronic media, because they:
•
create an artificial, symbolic environment, detached from tradition, culture and history of the individual nations;
•
lead to the fragmentation of the audience, limiting the scope of their
common experience, weakening social bonds;
•
intervene into human ties, replacing direct contact with forms of mediated communication
The proper functioning of democracy calls for a sense of common interests
and shared responsibility for the fate of the community, as well as the existence of a public sphere, being the forum of democratic public debate,
allowing the population to take part in the determination of the directions,
in which it should move. All the above processes may weaken these mechanisms.
Democracy
Source: Andrew Graham, Gavyn Davies, "Broadcasting, Society and Policy in the Multimedia Age". Luton: University of Luton Press,
1997.
5.1. PROGRAMME
General Trends
The characteristics of audiovisual markets are central
to the growth prospects of programme production. In
a report commissioned by the European Commission, entitled "Outlook of the development of technologies and
markets for the European audiovisual sector up to 2010",
the Andersen consultancy identified a number of market
types in the EU countries, as presented in Table 14.
All big markets, thanks to their scale and large number of broadcasters, have very competitive content industries. Some countries, like Great Britain or France are
major content exporters.
Content production in the commercial markets is focused on domestic needs, with insignificant exports.
Mixed markets show a considerable fragmentation of
the content production industry, which does not export
much to other countries.
In monopoly markets, dominated by public service
broadcasters (who produce a large part of their content
on their own), independent/outsourced content production is poorly developed.
The importers have a poorly developed audiovisual
sector, made up mostly of CATV systems offering foreign
programmes.
With more than 12 million households receiving television, Poland will count as one of the big EU television
markets. Naturally, the sheer size of the market is not
enough to guarantee significant domestic audiovisual
production, which largely determines national cultural
sovereignty. The growth of content production is also an
objective of economic policy in countries following modern economic policies, focused on the so-called "new
economy".
The analysis of content production markets in selected markets, carried out for the British Independent
Television Commission point to other determinants of
the growth of content production 41. The Commission
intended to identify the relationship between market
structure and the level of outlays on content production, as well as the effectiveness of regulations dealing with domestic and independent content production "quotas" (Table 15).
The results of this analysis corroborate the conclusions provided in the earlier quoted analysis of regulatory policy42. As demonstrated by McKinsey & Com-
Table 13. Selected Consequences of Changes in the Media and Media Techniques
41
"International TV Programme Supply Market Comparisons". A Report for the Independent Television Commission by Oliver & Ohlbaum
Associates Limited. Summary, November 2002.
29
Table 14. Types of European TV Markets
Market Structure
Distribution
Countries
Big markets
More than 10
million households
receiving TV,
average income per
capita
Mixed, market divided between public service and commercial broadcasters. Welldeveloped public financing,
advertising and pay-TV
Diversified, depending
on country. All countries
are introducing DAB
and DTT
Great Britain,
France, Germany,
Italy, Spain
Mixed markets
Small and mediumsized markets,
above-average per
capita income
Mixed, market divided between public service and commercial broadcasters, high share
of public financing, welldeveloped advertising
CATV or CATV/terrestrial
Belgium, Netherlands,
Norway, Iceland and
Ireland (after 1998)
"Monopoly" markets
Small markets,
average income
PSB has dominant position.
High reliance on public
funding.
CATV or satellite
Austria, Denmark, Ireland
(before 1998)
"Commercial"
markets
Small and mediumsized markets,
below-average
income
Commercial broadcasters
have the greater share of the
market. High reliance on
advertising, even in public
service TV
Mostly terrestrial, early
stages of DTT to increase
number of available
channels
Portugal, Greece
Importers
Very small markets
Imports of programming from
neighbouring countries
(or culturally related).
Very small advertising
markets, revenues going
to foreign broadcasters
CATV with foreign
programming
Luxemburg, Lichtenstein
pany, Great Britain is second only to the USA, as far
as outlays on domestic content production per capita
is concerned and is far ahead of other countries. This
can be attributed to a very high level of financing available to the public service broadcaster and a very
competitive commercial television market. In countries, where public spending is lower and competition
less intense, the prospects of achieving high production output and high average programme quality are
much poorer.
Figures in Table 15 show that Great Britain is second
only to the United States with regard to TV revenues per
capita (item 4). With Germany in the first place, Great Britain is second as far the proportion of TV revenues reinvested in domestic programming is concerned (about
33%, item 10), while British networks allocate the highest
proportion of their revenues to domestic programmes (as
much as 53%, item 11).
The turnover of the British content industry amounting
to EUR 4.8 billion (including exports) is by some 10% higher than in Germany and almost twice that in France.
Naturally, they cannot match American turnover, which is
twelve times higher.
42
30
Scale
In all the countries covered by the analysis, domestic production accounts for more than 50% of networks' airtime (item 5). With 88% this proportion is
highest in the USA and the remaining 12% is devoted to feature films, also American. Only in Great Britain and the USA this proportion exceeds 70% in
commercial television. Elsewhere, commercial broadcasters broadcast much more imported content production than public service broadcasters. Nonetheless, France and Germany are not far behind Great
Britain.
Great Britain has the relatively highest share of content production made in-house by the broadcasters, because it has no strong independent content production
industry and its broadcasters do not buy much from other
broadcasters.
These figures have led Oliver & Ohlbaum Associates
Limited to conclude that the volume of and expenditure
on content production, including domestic production,
depends on a combination of factors related to market
structure and regulatory intervention. The proportion of
TV revenues reinvested in domestic content production
tends to be higher where:
"Comparative Review of Content Regulation". A McKinsey Report for the Independent Television Commission. London: ITC, 1 May 2002.
1
2
3
4
5
By French standards, only a part of this production can be really recognised as independent.
Excluding film and sports rights, news included.
In prime time.
Excluding sports rights & feature films.
This means production made by independent producers or producers associated with other broadcasters.
1. The pay-TV sector (using mostly sports and films) is
less developed.
2. National TV broadcasters are integrated organisations,
rather than networks, whose affiliated local stations
get their programming from the headquarters.
3. There are no serious technical market entry barriers
(which means that incumbent broadcasters must
spend a lot on their programming to prevent potential
competitors from getting a share in the market).
4. There is a high proportion of public financing (as it increases funds available for programming).
5. The ownership of many channels has not been concentrated within a single organisation (because then,
the differentiation of the offering is the main competitive weapon, rather than programming quality and pro-
43
gramming outlays, even though concentration can lower fixed costs, potentially leaving more funds for programming).
6. "Quotas" are high, especially if these are "investment
quotas" (as in France), rather than expressed as a proportion of airtime.
As demonstrated by the above description of the successive stages in radio and television broadcasting development and the successive "generations" of broadcasters, having exhausted all the opportunities to expand
in the market of universal channels, addressed to the
mass audience, commercial broadcasters are looking for
new opportunities in the market of specialised programming (formatted, niche, "thematic")43, including some gen-
François Godard ("Multichannel TV: a maturing market", The SIS Briefings, No 47, March) enumerates the main formulae for the
creation of such channels: (1) pay channels launched by big universal programming broadcasters (e.g. French TF6 channel, launched
jointly by TF1 and M6; E4 channel, launched by British Channel 4; special channels launched in Spain, France and Italy to support
reality-TV transmissions; (2) the launch of new "premium channels" (e.g. the French TPS platform launched a film&sports TPS Star
channel); (3) joint undertakings by commercial companies and television ("Wellbeing" channel launched jointly by Granada and the Boots
network; French "Télé Melody" channel, the first music channel in Europe addressed to older population, supported i.a. by the German
commercial network "Quelle"); (4) paneuropean programmes financed only with advertising (e.g. three multilingual channels of the Italian
Sitcom company: "Alice", "Leonardo" and "Nuvolari"); (5) the launch of a channel connected with a well-known magazine (e.. "National
Geographic", or the French "Match TV" channel, drawing on the popularity of the "Paris Match" magazine); (6) niche channels addressed to narrowly-defined audiences (e.g. French "TFJ" channels addressed to the Jewish minority and "KTO" for Catholics, or the French
culinary channel "Cuisine.tv").
Table 15. Summary Results of TV Market Analyses in Selected Countries
31
res, which have been traditionally associated with the
"public service remit" tasks of public service broadcasters. However, this rarely applies to cultural or artistic
genres.
Satellite and cable technology, combined with signal
compression made possible by digitisation and the future launch of digital terrestrial radio and television broadcasting are eliminating former frequency and technical limitations, which applied to the number of channels
that could be broadcast. Demand for the individual programming offers, derived inter alia from market size, affluence, size of audiences interested in particular content types, etc. is becoming the only barrier. This is why
the broadcasters of specialised programmes are working on achieving maximum coverage, global if possible. Even though in the recent years "regionalisation"
or "localisation" of global satellite programmes could
have been observed, i.e. the creation of continental
mutations or even national mutations (as in the case of
CNN or MTV), this still means that the television audience of any given country, in such programmes, will rarely
come across content relating to the reality, culture or tradition of their country or created by local authors.
On the other hand, specialised satellite channels
tend to have an insignificant market share, so even if
they offer content, which could contribute to solving certain problems presented in Table 2, they do not really
do that and certainly not on a broader social scale. What
is more, watching such channels would mean additional cost to the viewer, be it even only in the form of
a CATV licence, of an additional fee for a particular programme package or for the ability to receive pay-TV
channels.
Leaving the function of public service media to such
programme offerings would imply the negation of the traditional and still needed model of public radio and television, as a universal service allowing all viewers and listeners equally easy access to the same content.
Public service broadcasters are looking for an operating formula in the competitive market and this mostly
consists in attempts at combining the "public service remit" tasks with the defence of their market shares. As
international analyses44 show, the programme effect of
this strategy depends mostly on the level of financing
and the sources of financing of public service broadcasters: the higher the level of advertising revenues, the
lower the share of "public service remit" genres in the
programmes or these programmes are pushed out of the
prime time.
Thus, there is sometimes what might be called "programming convergence" between public service and
commercial broadcasters. Where this convergence goes
too far, it might jeopardise the legitimacy of the existence
of public service broadcasters.
Situation in Poland
As one can easily deduce, the Polish television market fails to meet some of the above criteria for the good
development of domestic content production:
1. There are high technical market entry barriers in
the form of the paucity of frequencies and not much
likelihood of a prompt DAB or DTT launch, so incumbent broadcasters do not have to worry about
competition from new market undertakings;
2. The level of public financing is low and insufficient;
3. Concentration in television is a fact: Poland has an
oligopoly of three broadcasters and the growth strategy of commercial broadcasters consists precisely in
the differentiation of their offering (subsequent satellite channels of the ITI group), rather than in the actual
improvement of programme quality;
4. There are no "investment quotas".
Specialised satellite channels 45 have been or will
shortly be launched in Poland. Their programming profiles to a very small extent correspond to the obligations of public service television. Nonetheless, only
some 50% of television viewers have access to satellite channels, whereas the channels themselves have
marginal market shares. Failed attempts by commercial radio broadcasters to introduce less usual or more
ambitious programme formats (See e.g. failure of Inforadio station, evolution of the programme offering of
Radio Classic and Radiostacja) seem to show that the
Polish audience for the time being are not sufficiently
interested in any non-standard offering on the part of
commercial stations.
All in all, this means that we cannot expect commercial broadcasters to take over the tasks of public
service providers in any predictable future, especially not in the form of universal service. Unless something is done about that in the national media policy,
"programming convergence" will probably retain its
one-sided character: the programme offering of public
service broadcasters will increasingly resemble that
of commercial broadcasters, rather than the other way
around.
44
See McKinsey & Company, "Public Service Broadcasting Around the World" .London, 1999; Beata Ociepka, "Dla kogo telewizja? Model
publiczny w postkomunistycznej Europie Œrodkowej" (Television for Whom? Public Model in Post-Communist Central Europe). Wroc³aw:
Wydawnictwo Uniwersytetu Wroc³awskiego, 2003.
45
Whereof TVN 24, TVN Siedem (film-entertainment); TVN Meteo (weather information); MINIMAX (children & youth); Ale Kino (film);
CANAL+ Polska (film); CANAL+ Yellow (film); CANAL+ Blue (sports); TELE 5 (entertainment); Czas (documentary-educational); Pilot
(information about Polish-language TV programmes); Centrum (news-reporting about Warsaw); EDUSAT (educational); 4fun.tv (interactive blocks, show biz news); Kino Polska (classic Polish movies); Moto Polsat (motor news); Spectrum I AXN (HBO channels devoted
to action movies); Comedy, Planete Thalassa, ITVN and others.
32
Source: "Informacja o podstawowych problemach radiofonii i telewizji" (Information about the Fundamental Problems of Radio and Television Broadcasting), Warszawa: KRRiT, 2003.
CONCLUSION 2
To ensure that the receivers always have access to
a full and valuable programme offering the national media policy should aim at:
• returning public service radio and television orga−
nisations to the public sector and ensuring their
ability to properly realise their programme obliga−
tions and develop;
• providing commercial broadcasters with stable
conditions required for the pursuit of their business
and development;
• creating conditions, which will favour the develop−
ment of content production (strong competition in
the TV market, high proportion of public financing
for public service media, preventing excessive
capital concentration, appropriate regulation of in−
dependent production and of relationships betwe−
en broadcasters and independent producers (see
below);
• creating real conditions for the functioning of so−
cial broadcasters, by ensuring opportunities to
obtain financial support;
• creating conditions for the development of Polish in−
formation and cultural resources on the Internet.
Proposed National Policy Guidelines
5.1.1. Public Service Broadcasters
Restoring the ability of public broadcasters, especially of TVP S.A., to properly fulfil their public service remit
will require, first of all:
1. Depoliticisizing the process of the appointment of their
managing bodies and a personnel policy based on
criteria of competence, pursued in a manner ensuring
objective decisions;
2. Developing a model for the functioning of public service media, which would conform to social needs and at the same time – would be possible to finance, which
calls for cost rationalisation both in public service radio and television;
3. Ensuring adequate and stable financing with public
funds and the transparency of financial management;
4. Developing a system permitting a more precise definition of programming obligations and accountability for
their performance.
According to EU principles and to the principles of
other European organisations, "public service remit" is
an element of popular, universal programming addressed to the broad audience. This approach does not
make a strict distinction of genres or content types between public service and commercial broadcasters46.
Nonetheless, the raison d'etre and the basis of the legitimacy of public service broadcasters are, i.a.: (1) the
right proportions between public service remit and other
genres and access to the former at all times of the day;
(2) adequate quality of programming content and its
technical level in genres other than public service remit; (3) ensuring easy and universal access to a full
range of programming content47.
These issues have been ignored in the Broadcasting
Act, which became a stumbling block for all attempts to
define the tasks and role of public service broadcasters.
This is why Article 21 of the Broadcasting Act should be
supplemented with a definition of public service broadcasters. Such a definition, accompanied by the obligations of public service broadcasters, currently set out,
inter alia, in Articles 1 and 21-25 of the Broadcasting Act,
and (in much greater detail) in programming licences,
could become a basis for:
46
See Communication from the Commission on the application of State aid rules to public service broadcasting,. "Official Journal of the
European Communities", C 320, 15.11.2001, p. 5-11.
Table 16. Programme Genres most commonly found in Polish Television Programming
47
And thus, according to a document adopted in 1994 called "The Mission of Telewizja Polska S.A. as a Public Service Broadcaster the
obligation of such a broadcaster is to create [for the viewers] the opportunity to be in contact at all times of the day with a programme
offering different from the commercial offering, i.e. providing i.a. more serious and ambitious content, delivered in more attractive and
valuable programme forms, derived from national culture and tradition".
33
34
• defining the position of public service broadcasters in
the system of Polish radio and television broadcasting;
• formulating the criteria for the evaluation of their performance of programme obligations;
• accounting of public funds (licence fees and other)
earmarked for the financing of public service broadcasters.
The new Act should also introduce "programme licences" for public service broadcasters, which conforms to
the requirements of the European Union relative to the
definition of their public service remit.48
5.1.1.1. Programme Licences for Public Service
Broadcasters
Programme licences will set out in detail the separate
obligations of each of public service broadcasters' channels, to ensure the appropriate content and quality, as
well as the possibility of assessing (basing on clearly
defined criteria) the appropriate performance of these
obligations by the regulatory authority and the public
opinion.49
Given the need to demonstrate the fulfilment of licence
conditions every year and that the management boards of
public media broadcasters would be assessed from this
perspective, licences should be granted for one year or
for the term in office of the management board, with annual protocols setting out the tasks for the coming year.
Programme licences will also lay down broadcasters'
obligations with regard to new technologies, i.e. digital
radio and television broadcasting50; the creation of Internet content (supporting broadcasting activities, or activities pursued as autonomous programming activities, independent from the content of radio or television pro-
gramming); for the introduction of interactive elements,
use of e-mail, short text messages and other forms of
communications to supplement and support programming
activities. The new Act should set out the details for the
drafting of programme licences.
Explaining the procedure proposed here calls for addressing the issue of the competences and accountability
of the governing bodies of public radio and television broadcasting companies for their programming activities. The
co-existence of supervisory boards and programme councils within the structures of these broadcasters has led to
the fallacious assumption, that supervisory councils should not concern themselves with programming. And yet
Article 382 § 1 of the Code of Commercial Companies
provides supervisory boards with clear powers: "A supervisory board shall perform ongoing supervision over the
company's activities in all its areas of operation" – all,
meaning also those dealing with programming. KRRiT
confirmed that in 1995 in its document entitled "The future
of public service television broadcasting in Poland".51
Practice has so far demonstrated that the programme
councils in Polish public media proved unable to play any
role in developing the strategies or programming policies
of public radio and television broadcasting companies or
to correct any mistakes with that regard. Strengthening
their role or equipping them with any sort of decision-making powers would create a duumvirate, as if it were, or
potential conflict with the supervisory board, without the
programme council being in any way accountable for the
financial consequences of its decisions on programming.
A different solution seems more appropriate: recognising and emphasising the role of supervisory boards in
the new Act and in the articles of association of the new
companies and equipping them – in line with the new
approach to their duties – with powers necessary to au-
48
EU regulations on the implementation of the requirements of Article 87 of the Treaty Establishing the European Community (ban on
state aid for market undertakings) and Articles 16 and 86 (public interest services, which includes, inter alia, public service broadcasters) call for a clear and precise definition of public service remit to be performed by such services and for such remit to be formally
entrusted to specific broadcasters in the form of provisions contained in Laws, or contracts (agreements, arrangements), or licence
terms (terms of reference).
49
In an address of former TVP Presidents (See "Gazeta Wyborcza", 8th May 2003) this solution has been described as the "watering
down of responsibility" of public media management for programming content. In actual fact, the "programme licence" defines in concrete
terms the responsibility of the governing bodies of public service media for the realisation of their programming obligations, defined by the
legislator and KRRiT. It is in line with a certain broader trend: there are less and less countries which regulate the obligations of public
service broadcasters only in acts, while there is an increasing number of others, which complement this regulation with other, more
detailed documents or – in many cases – with various forms of supervision over their enforcement. The latter group is represented by
Belgium, Bulgaria, Cyprus, Denmark, France, Spain, the Netherlands, Israel, Lithuania, Latvia, Norway, Portugal, Switzerland, Sweden
and Great Britain. (See Erik Nordahl Svendsen, The Regulation of Public Service Broadcasting, An EPRA Inquiry. A paper presented at
the 16th Conference of the European Platform of Regulatory Authorities. Lublana, 24-25th October 2002).
50
For example, the Australian government imposed the obligation to produce an average of 20 hours per week of HDTV programmes
(although this applies only to the main terrestrial TV broadcasters), which is supposed to help attracting viewers to digital terrestrial
television.
51
There we find the following passage: "4.7. The Supervisory Board shall supervise all the operations of the Company (...) The scope
of supervision shall extend to all the areas of the Company’s operations and thus, also to programme activity. There are no reasons to
restrict supervision to economic and organisational issues. This also stems from Article 29 paragraph 7 of Company Statute, which calls
for the reporting of quarterly assessments and conclusions on the programme activities of the Company to the Supervisory Board. The
Supervisory Board shall review them, treating them as assessments and conclusions of a body fully authorised to formulate them and
turn them into an object of its own activity, within its competences derived from the Law and Statute. Amendments to the Broadcasting
Act, which state that the resolutions of the Programme Council relating to programme matters shall be the object of the deliberations and
resolutions of the Supervisory Board, emphasise the intentions of the legislator with regard to the competences of the Supervisory Board
with regard to supervision over programme activities and the fact of equipping it with certain decision-making powers".
thorise management boards to enter into agreements on
programming licences with the KRRiT Chairman. Thus,
supervisory boards would share the responsibility for the
performance of programming obligations covered by licences and for the ability of companies to finance these
obligations. Thus, they should be made up of persons
having the necessary qualifications and experience, to be
able to relate to the broadcasters programming activities,
which should be taken into account in nominating supervisory board members. In the light of these deliberations
is seems appropriate to phase out the programme councils of public radio and television broadcasting companies or their divisions. At the same time, we are proposing to establish a programme council, as an advisory
body to KRRiT on matters of public service broadcasters'
programming activities. This council, made up of persons
designated by journalist and creative communities and
associations and representatives of the audience, would
review draft programme licences developed for individual broadcasters and formulate – on the basis of analyses
prepared by the Programming Department of the Office
of KRRiT – annual assessments of broadcasters' performance of their programming obligations.
Public service broadcasters would develop their draft
programme licences on the basis of KRRiT guidelines.
Such drafts, accompanied by the financial details of their
implementation, would then be the object of consultations
between their management boards and KRRiT. Agreed
licence texts would become agreements concluded between the Chairman of KRRiT, acting in pursuance of a
resolution of the Council and after having taken the opinion of the Programme Council and the management
boards of public broadcasters duly authorised by their
supervisory boards.
Failing agreement, the National Council would authorise the Chairman to grant a programme licence in the
wording set out by KRRiT.
The National Council would have the obligation to
publish the texts of all programme licences awarded.
After the end of each successive year KRRiT would
formulate, having taken the opinion of the Programme
Council, assessments of the performance of the programming obligations of public radio and television broadcasting companies, publish them and pass them on to the
respective management boards and general shareholders' meetings.
The new Act should mandate supervisory boards to
make a full assessment of the activities of management
boards, both in terms of their financial management and
business management and in terms of the performance
of programme obligations derived from programme licences. When moving for the general shareholders' meeting
to acknowledge the fulfilment of its duties by the management board, the supervisory board will take account of
all the areas of the company's activities and in the pro-
gramming aspects, it will follow i.a. the opinion formulated by KRRiT with the participation of the Programme
Council. In the event it should be established that there
has been a serious violation of licence conditions and that
the obligations set out therein had not been performed,
the supervisory board should take firm corrective action,
up to and including the dismissal of a part of the management board or the entire management board. The failure to take such action should become a premise for the
general shareholders' meeting to refuse the acknowledgement of the fulfilment of duties to the supervisory board or to take other action, e.g. affecting the remuneration of supervisory board members.
Thus, the acknowledgement granted to the governing
bodies of the company would be of both financial and
programme nature. The inclusion of the programming
aspects into the granting of the acknowledgement by the
general meeting will not constitute a violation of the nonintervention of State Treasury representatives in programming matters (Article 29 paragraph 3 of the Broadcasting Act), as any such decision will be made basing
on opinions formulated by the KRRiT and the supervisory board.
Licence conditions could be changed during its life, at
the request of either of the parties, subject to the procedure ruling the conclusion of agreements on programme
licences, described above.
CONCLUSION 3
Programme licences and financial & programme
acknowledgements of the fulfilment of duties, along
with the entire procedure for developing licence te−
xts and annual assessments of the performance of
licence terms and consequences related to perfor−
mance failures, accompanied by changes in the me−
thods used to finance public service broadcasters
(see below) will ensure that the governing bodies of
public radio and television broadcasting companies
will focus on programming activities and the proper
performance of their obligations in this area, thus
becoming an instrument favouring a more efficient
use of public funds.
Apart from programmes named in the Act, designed to
pursue objectives falling within the definition of public
service media, public service broadcasters should be
able to distribute licensed satellite programmes (possibly produced with other market undertakings), financed
with non-public funds. These programmes would not
benefit from preferences granted to public service broadcasters, e.g. with regard to the must carry obligation.
According to the position of the 4th European Ministerial
Conference on Mass Media Policy52, public service broadcasters may, where justified, broadcast specialised
52
See "Resolution No: 1: The Future of Public Service Broadcasting", 4th European Ministerial Conference on Mass Media Policy (Prague,
7-8 December 1994) "The media in a democratic society" in: European Ministerial Conferences on mass media policy: texts adopted.
DH-HM (2004)4, Strasbourg, 4 September 2000.
35
programmes as pay programmes, which should be included in their licences.
When digital terrestrial radio and television are launched,
public service broadcasters should have the opportunity to
develop and differentiate their programme offering available by this means of transmission.
5.1.4. Independent Producers
5.1.2. Commercial Broadcasters
What favours the development of programme activities by commercial broadcasters, including the enhancement of the level of the existing programmes, launching new channels with more attractive content, is their growth, financial stability and the scale of operations,
which allow investment in new programming endeavours and their financing until the time they become profitable, as well as the existence of strong public service broadcasters, able to meet their inherent obligations and co-determine the standards, content formulas
and programme quality.
CONCLUSION 4
The Act on electronic media should offer commer−
cial broadcasters an environment allowing stable and
predictable development, thereby extending the mar−
gin of their economic freedoms.
The following mechanisms should help the stabili−
sation of commercial broadcasters: extending licen−
ce validity, limited tax relief related to the develop−
ment of digital television (digital production and trans−
mission, satellite transmission). In the programme
part, licences for commercial broadcasters should
specify prohibited practices, leaving the program−
ming choice to market mechanisms, subject to the
requirements of EU directives. This remains without
prejudice to the ability of the new regulator to set out
the nature of the channel for which licence is to be
granted in the terms of the competition (especially in
the case of local stations), if it is to serve the enrich−
ment and differentiation of programme offering in the
particular area.
5.1.3. Social Broadcasters
General Trends
Article 5 of the "Television without Frontiers" Directive
mandates broadcasters to assign at least 10% of their air
time (whereof an appropriate part should be earmarked
for new production) or 10% of their programme budgets,
to programmes produced by independent producers.
An analysis of regulations in 28 countries and regions
shows that:
• 11 have confined themselves to the minimum "quota"
of 10% of airtime;
• 9 have transposed the provision of the directive allowing choice between the "quota" treated as a percentage of airtime or budget (programme budget or calculated in a different manner) into their national legislations; in some cases (e.g. France, Italy) both "quotas"
apply jointly;
• 8 have transposed the provisions of the directive in
another way, usually providing for a differentiation of
the "quotas" for commercial and public service broadcasters, under which public service broadcasters have
higher "quotas".
The average share of independent production in airtime
in EU Member States was 37.51% in 1999 and 40.47%
in 2000. The share of new production (produced at most
5 years prior to airing) in the independent production
"quota" was, respectively, 53.8% and 55.71%.
As has been already said, the provisions of the directive leave a certain margin of freedom to the Member States with regards to the methods to be used to
achieve its objectives. Below, we are using selected
examples, to demonstrate how the Member States are
using this leeway.
No independent production "quota" or a different
level thereof
The current definition of social broadcasters (Article
4 paragraph 1a of the Broadcasting Act) practically limits this
concept to religious broadcasters. The new Law should
extend this definition to embrace all broadcasters founded to
pursue all non-commercial, social, cultural, artistic, educational, religious and other objectives in their programmes.
In Germany the regulations do not specify the "quota"
in percentage terms, stating only that channels should allocate a "significant part" (majority) of airtime (wesentlicher Anteil) to their own production, outsourced production and co-production from German-speaking and European countries.
CONCLUSION 5
In Great Britain the independent production "quota"
for terrestrial broadcasters has been fixed at 25% of airtime (and calculated in an unusual way: repeats, purchased programmes and news do not count against "quota"
performance). In Italy it is 20% for the public service bro-
Social broadcasters may contribute to extend the
range of available content in local and regional com−
munities, especially through the creation of program−
36
mes speaking on behalf of and to various minorities.
The new Law should provide the appropriate condi−
tions therefor, including the financial conditions (see
below).
adcaster and 25% in the Netherlands, for the public service broadcaster.
Definition of independent production
In the Netherlands, only production commissioned by
a broadcaster is treated as independent production. In
Luxemburg and France the regulations specify, that
a producer must be independent from the broadcaster
broadcasting a particular programme, but not necessarily from all broadcasters.
portion of new production, aired up to five years after it
was made, including a large proportion of production
originally made in the Flemish language.
In Spain, programming originally produced in one of
Spain's official languages should fill up more than 50%
of airtime allocated to European production. Pursuant to
an authorisation in the Broadcasting Act of 1994 (as
amended), the governments of autonomous provinces
have introduced additional "quotas" intended to promote
audiovisual production in the respective languages.
Timing of Transmissions tied to "Quotas"
Domestic Production
In Denmark 60% of programming broadcast between
17:00 and 24:00hrs must be of Danish origin.
Share of New Production in the Independent Production Quota
In Portugal, Belgium (Wallonia), Hungary and Lithuania
all of independent production broadcast under the "quota"
must be made up of new production, made at most five
years before transmission. In Finland, new production
must account for at least half of the "quota" of independent production. Sweden requires the highest possible
proportion of new production. In Italy, new production must
account for at least half of the European quota, i.e. at least
25% of airtime (excluding genres not taken into account
in the calculation of the European "quota").
Language Quotas
In Portugal, national broadcasters have the obligation
to allocate at least 50% of their airtime (excluding time
allocated to advertising, telesales and teletext) to programmes originally made in the Portuguese language. On top
of that, broadcasters must allocate at least 15% of their
airtime to artistic programmes originally made in the Portuguese language. In both cases, up to 25% of the "quota"
in question may originate from outside Portugal.
Since 1st May 2004, the independent production "quota" is to include 70% of items originally produced in the
Hungarian language. Amendments to the Broadcasting
Act, which will come into force on that date, will introduce the "European quota" in its standard form, as well as
a provision mandating that "one third of the airtime shall
be allocated to films53 originally produced in the Hungarian language".
In Belgium (Flanders) the "quota" of European production must contain a "significant part" of works originally
produced in the Flemish language. The government of
the province can fix the "quotas" for such production, but
it has so far never used this right. The "quota" of independent production should contain a significant (the Directive uses the word "appropriate", so this word is used
to make the wording of the Directive more accurate), pro-
53
In Portugal, these items cannot be broadcast outside
peak viewing time.
In the Netherlands, repeats count against the independent production "quota", but only if broadcast between
16:00 and 24:00 hrs.
In Great Britain, the "Communications Act" mandates
OFCOM to fix a binding "quota" for broadcasters’ for original production and its transmission during peak viewing time and off peak.
Carrying Forward "Quota" Shortfalls
In the Netherlands public service television reports
annually to the regulator on the fulfilment of the independent production "quota". Any shortfalls must be made up
for during the next year.
In Great Britain broadcasters must make up for any
shortfalls in the fulfilment of the independent production
"quota" in the following years.
Genre Requirements
In Italy, the 1998 Act mandates TV broadcasters to
allocate at least 10% (20% for the PSB) of advertising
profits from the previous year to the production and purchase from European producers (which includes independent producers) of programmes for children (whereof
40% must be cinema or TV films, giving a combined time
of at least 200 minutes). In the case of the PSB, the document defining his obligations (Contratto di Servizio)
must additionally set out the "quota" of production or
purchases from European producers (including independent producers) of cartoon movies used in educational
programmes for children.
These regulations show that EU Member States enjoy
a considerable margin of freedom with regard to the interpretation of Article 5 of the "Television without Frontiers" Directive and the means intended to achieve the
objectives prescribed therein. The existence of these regulations proves that the framework of EU audiovisual
policy allows the pursuit of objectives, which are important for individual Member States. However, this requires
the willingness and ability to defend one's policies in discussions with the European Commission.
The original text refers to "films", but in actual fact, the reference is to programmes.
37
The debate on the objectives of EU audiovisual policy
and amendments to the "Television without Frontiers"
Directive has led to the formulation54 of many questions
waiting to be answered.
The first one deals with the relationship between concerns about the international competitiveness of the European audiovisual industry (which would call for concentration and the rise of big, powerful undertakings) and the
policy supporting independent producers (which aims at
increasing the number of undertakings and employment in
this industry; at the promotion of the pluralism of ideas and
the fullest possible use of creativity, by countering the monopoly of broadcasters' employees for the production of
programmes; at promoting competition, including the SMEs;
at limiting vertical integration in the audiovisual industry).
The second concerns the definition of an independent
producer and whether the Community should adopt one
common definition, binding upon all Member States.55
This is important, especially in view of increasing competition from the audiovisual industry.
Another question relates to postulates calling for an
increased "quota" of independent production or changes
therein, through the addition of broadcasters' obligation
to invest in the production of certain genres (so-called
programmes de stock, i.e. genres, e.g. feature films, artistic, educational or documentaries, for repeated use).
Producers are also raising the issue of the rights in the
programmes they make, claiming that the fact that broadcasters deprive them of all rights deprives them of revenues and prevents them from accumulating funds to be used
in their productions. Thus, the argument that broadcasters
should buy only rights to primary use, with the independent producer retaining the rights to repeated use.
There is also the idea of founding an independent
European authority with supervisory powers, intended to
supervise the implementation of the policy designed to
promote independent producers.
Broadcasters, in turn, are defending themselves against changes in the existing regulations, claiming that
they would be detrimental to their interests.56
In December 2003 the European Commission published
a communication57, in which it summed up the conclusions derived from consultations on amendments to the Directive and
presented its preliminary position on the debated issues.
The Commission declared that the majority of the participants of the consultations were in favour of leaving the
limits of independent production "quota" unchanged,
whereas other calls were spread between those advocating an increase of the quota and those who wanted it
abolished.
In the opinion of the Commission, the majority of the
participants believed that the lack of the definition of the
"independent producer" at the European level (which
remains without prejudice to definitions adopted at the
national level) is not an obstacle in the trade of audiovisual production. However, considering that some participants favoured the adoption of a common definition, there is the possibility that guidelines will be issued for the
Member States, providing a list of criteria for the assessment of producer independence.
As goes for postulates regarding Articles 4, 5 and 6 of
the Directive (e.g. exemption from the requirements of the
European "quota" of thematic channels, distance sales,
new broadcasters, broadcasters with insignificant market
shares, countries having a low production potential or
using languages with small coverage; or introducing special regulations for new forms, such as pay-per-view or
video-on-demand), the Commission stated that all exceptions from the Directive should be specifically defined and
described in that Directive.
One can conclude from the above that amendments
to the Directive will not make it possible to go beyond
the existing regulations of this issue at the European level, because no consensus had emerged with regard to
potential new solutions.
However, this does not mean that new solutions cannot be developed at the national level. New British legislation can be an example of such developments, aimed
at stimulating independent production and at developing
transparent broadcaster-producer relations, also in the
area of property rights in independent production.
This is dealt with in Article 277 of the new Communications Act adopted in 200358, which:
• Provides that broadcasters must carry forward to one
or more subsequent years any shortfalls in the independent production "quota" in a given year, in accor-
54
See i.a. Communication from the Commission "On Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works".
COM (2001) 534 Final. European Commission Brussels, 26.09.2001; "Discussion Document. Theme 2: Promotion of Cultural Diversity
and Competitiveness in the European Programme Industry". Review of the "Television Without Frontiers" Directive. Brussels: European
Commission, 2003. See also "A Review of the UK Programme Supply Market". London: The Independent Television Commission, 2003.
55
The "Television without Frontiers" Directive only mentions in the recitals that "...in defining the concept of independent producer the
Member States should take account of such criteria as the ownership of the producing company, the number of programmes produced
for one broadcaster and the ownership of rights to secondary use".
56
See e.g. "Review of the Television without Frontiers Directive. Provisional Common EBU Platform" (Status May 2002). Geneva: European
Broadcasting Union.
57
"Communication on the Future of European Regulatory Audiovisual Policy". COM(2003) 784 final. Brussels: Commission of the European
Communities, 2003.
58
38
"Communications Act 2003", http://www.legislation.hmso.gov.uk/acts2003/20030021.htm.
On December 18, 2003 OFCOM announced guidelines59, in which it set out in detail the framework content
of the codes. They are designed to ensure that:
• Broadcasters will allocate adequate time for negotiations with independent producers, leading to the conclusion of a binding contract and will clearly set out the
timetable and procedure;
• A code should clearly demonstrate that in the process
of commissioning production a clear distinction is
made between different categories of rights and tariffs
paid therefor.
OFCOM recognises the basic principle that a producer should retain the rights in a programme produced,
unless he sold them to a broadcaster or another party.
The contract between the broadcaster and independent producer shall clearly specify the categories
of rights acquired by the broadcaster, with the general assumption being, that producers should retain
rights in their production, unless they sold them to
broadcasters or other parties. Primary rights might
also be defined to include certain new media rights,
including simulcast streaming on the Internet and interactive applications.
• The codes are to ensure transparency with regard to
pricing and separate payments for the individual categories of rights.
Each category of rights shall be priced separately and
in a transparent manner, not leading to any doubts. Broadcasters should develop a list of indicative tariffs relating to fees for primary rights, possibly in the form of ranges, in order to build in flexibility, but should incorporate
a sufficient degree of desegregation to ensure that they
provide useful information to prospective suppliers. The
tariffs could also be index-linked over time to account for
general price inflation.
The initial primary licence will cover a specific number of uses. Where a broadcaster wishes make to use of
a programme beyond the number of uses originally specified in the primary licence, that should be covered by
a specific system of repeat fees.
The value of rights should be determined in the course of commercial negotiations.
• The codes shall properly define licence duration and
the issue of exclusive rights.
The codes shall define licence duration for primary rights (first transmission plus a specified number of repeats) for a sufficient period of time to enable an appropriate exploitation of the programmes it has commissioned.
OFCOM considers that, at present, a typical licence period would be no more than 5 years, during which the
broadcaster would have exclusive rights to use the programme on its wholly-owned channels (for the defined
number of transmissions).
All other rights retained by the producer should be
available for immediate exploitation in the UK (post first
transmission with the commissioning broadcaster) and
overseas. Broadcasters might, however, reasonably choose to retain exclusive use of the programme format in
the UK, subject to a periodic option to renew. All other –
non-UK – format rights will remain with the producer, as
is generally the case now.
Broadcasters should not seek to include rights in perpetuity as a matter of course.
• The codes need to establish a mechanism for periodic
reviews (and possible changes) of the provisions they
are dealing with and for monitoring of their application.
Broadcasters shall not modify their codes unilaterally,
but only with OFCOM approval.
• The procedures include requirements for the monitoring of the application of the code and for the making
of periodic reports to OFCOM.
• A provision is to be made for resolving disputes arising in respect of the provisions of the code (by independent arbitration or otherwise), subject to OFCOM
approval, so as to minimise the costs of arbitration, so
that smaller independent producers will not incur any
excessive costs.
dance with guidance given by the Minister of Culture,
Media and Sports or by OFCOM;
• Mandates OFCOM to fix a "quota" for original production, binding upon broadcasters, taking account of its
share in peak viewing time and off peak;
• Mandates broadcasters to adopt and apply Codes of
Practice drawn up according to OFCOM guidelines,
which set out the principles of co-operation with independent producers (including pricing rules for various
categories of rights and separate payments for the
various categories, the definition of time for which they
are sold – below we are describing these codes in
greater detail);
• Mandates (in Article 264) OFCOM to publish information about the volume of independent production made
outside London in its annual report on the fulfilment of
public service remit by public service broadcasters.
59
"Guidelines for broadcasters in drafting codes of practice for commissioning programmes from independent suppliers".
http://www.ofcom.org.uk/codes_guidance/cop_prog_indi/indies?a=87101.
39
Table 17. Share of Programmes made by Independent Producers in 2003 in Quarterly Airtime on National and
Satellite Channels of Polish TV Broadcasters
* Figures from the Programming Department of KRRiT
In pursuance of the Communications Act and then on
the basis of OFCOM Guidelines presented above, British
terrestrial broadcasters have published the "Codes of
Practice" (see e.g. Codes of the BBC60, Channel 461 and
ITV Network62).
Ireland, the Netherlands, France and Italy have also
adopted solutions, which in different ways define producers' property rights and enable them to trade in their
own production to generate additional income.
Situation in Poland
Poland is among the countries, which chose to
make a passive transposition of Article 5 of the "Television without Frontiers" Directive. The share of production made by independent producers in 2003 in
quarterly airtime of Polish broadcasters is shown in
Table 17.
With the exception of TV4, terrestrial broadcasters
have a considerably lower share of independent production than the EU average.
The following developments can be observed both in
Poland and other European countries:
• concentration of independent producers in the capital;
• some broadcasters take advantage of the lack of the
definition of an "independent producer" to form their
own producing companies, to which they then entrust
"independent production";
• broadcasters take over all the rights in productions
commissioned from independent producers;
• a large part of the market is dominated by subsidiaries of international producer companies;
• the resulting slow growth of the majority of Polish producer companies, their poor competitiveness and inability to attract foreign investors;
• producer's creativity being often restricted by the fact,
that broadcasters tend to use international formats,
which eliminate any creative input on the part of the
producer (and broadcaster) into the programme formula, e.g. at the screenplay level or conception of programmes;
• lack of transparency in broadcaster-independent producer relations, lack of real tendering and or compa-
60
"Code of Practice. BBC Dealings with Independent Producers for Television Programmes Commissioned by the BBC".
http://www.BBC.co.uk/commissioning/structure/pitching.shtml.
61
62
"Code of practice for Commissioning programmes from independent producers". http://www.channel4.com/4producers/.
"ITV Network Limited. Code of Practice for commissioning programmes from independent producers".
http://www.pact.co.uk/uploads/file_bank/1212.doc.
40
rative selection procedures, ensuring real competition
in programming and price terms between producers
competing for broadcasters' contracts.
3. Ensuring the development of the independent production
sector, including appropriate terms & conditions in contracts between broadcasters & independent producers.
Thus, the point is to ensure the full implementation of
social, cultural and economic goals, which are the guiding principle of this form of broadcasting regulation.
As both Polish and European experience shows, this
tends to require regulatory intervention, because otherwise, broadcasters may, thanks to their greater bargaining power in relations with independent producers,
seek to set out the terms and conditions with them to suit
their own interests, which may not be in line with the
objectives mentioned above.
The provisions of Articles 15, 15a and 15b of the Broadcasting Act clearly show, that the legislator wanted the
provisions introduced in the Act to adapt it to EU requirements, to be supplemented with additional forms designed to support domestic production and increase the
share of Polish programming or programming related to
Polish culture.
Provisions dealing with independent production can
be another instrument designed to achieve the same
objectives:
Table 18 presents measures, which can be used to
implement these goals.
1. Stimulate new production of valuable programming for
repeated use, conveying timeless content, with an
appropriate share of production originally made in the
Polish language;
2. Broadcasting items related to the independent production "quota" in prime time;
One should emphasise, that the choice of the solutions
described above should also take account of the burdens
(including financial), that they impose on broadcasters
and of their ability to prove the fulfilment of such requirements (and from KRRiT's perspective – the ability to enforce and monitor broadcasters' programming activities).
Table 18. Examples of Provisions Designed to Stimulate Independent TV Production
Objective
Methods which can be used to achieve objectives
1. Stimulating new production of valuable productions, timeless; appropriate share of items
originally produced in the Polish language
• Increasing "quota" to 20-25% (maybe only for public service TV); or differentiating it depending on the nature of the
broadcaster or channel;
• Only programmes commissioned by a particular broadcaster from a producer to count against the "quota";
• Requirement for a high share of new production in the "quota":
• Genre requirements on programmes included in the "quota":
• Language "quota" included in the independent "quota":
• Provisions on the inclusion of "repeats" in the "quota":
• Requirement to make up for any potential "shortfalls" in the
next accounting period;
• Adoption of the definition of programmes originally counted as made in the Polish language and possible differentiation of accounting for various programmes in this programme category.
2. Broadcasting programmes related to the
"quota" of independent production during prime
time
• Requirements on the broadcasting of the whole "quota" or
its part in prime time
• Possibly the application of a conversion factor to the accounting of items related to the "quota"
3. Ensuring the development of the independent
production sector, including appropriate terms
& conditions in contracts between broadcasters
& independent producers
• Adoption of the appropriate definition of the producer and
independent producer
• Settling controversies over property rights to independent
production in a manner enabling producers to retain certain rights and recover all rights after a certain time
• Mandating broadcasters to adopt "codes of good practice"
in their relations with independent producers, laying down
mutually beneficial and predictable terms and conditions for
the parties' collaboration and protection of their interests
41
The broadcasters should also have the obligation to
develop and submit for KRRiT's approval their proposals
of provisions regulating their relationships with producers, including the procedure for the reception and review of producers' proposals, commissioning production
from them, determining service prices and rights, with the
differentiation of fees depending on the nature of the rights and arbitration in case of controversies.
CONCLUSION 6
Independent production must be promoted as an
element of pluralism and creative competition. The
provisions of the Broadcasting Act should include –
as in the examples given above – new solutions le−
ading to the use of the independent "quota" to stimu−
late new, quality production and its transmission in
peak viewing time. What needs to be settled is the
question of rights in independent production, in
a manner enabling producers to trade in these rights
and thus generate funds for development and co−finan−
cing of production. We also need to assist the territo−
rial diversification of independent production.63
5.1.5. Internet Content
General Trends
In 2000 the Council adopted the decision64 on the
launch of a multiannual programme to support European
production and use of digital content in global networks
and to promote language diversity in the information society. The programme will be made up of activities designed to support the use of European content on the Internet, especially content created by the public sector, to
promote production in EU languages and the exports of
such content and lastly, to boost market dynamics and
company activities in these areas.
Also the UNESCO, in its draft recommendation, which
is to be its contribution to the deliberations of the World
Summit on the Information Society65, points out to the
need of ensuring cultural and linguistic diversity in cyberspace and "encouraging the creation and processing of,
and access to, educational, cultural and scientific content
in digital form, so as to ensure that all cultures can
express themselves and have access to cyberspace in
all languages".
Then again in 2002 the Council adopted the resolution on "Interactive Media Content in Europe"66, in which
it treats the development of production and use of this
content as an element of a much broader programme
directed at the development of the information society
and a natural continuation, as if it were, of activities related to the promotion of the production of audiovisual content. The resolution calls upon the European Commission to consider, whether there is the need to put in place measures intended to promote such production.
Another element of the Community policy designed
to promote European Internet content is the "Growth and
Audiovisual: i2i Audiovisual" initiative, implementing the
call of the Council in Lisbon in 2000 for the Community,
along with all its Member States and with the assistance of the European Investment Bank, to create a cheap
Internet access network and promote the development
of leading-edge information technologies and other telecommunications networks, as well as of the content for
these networks. The objective of the "i2i Audiovisual"
programme is to enhance the competitiveness of European cinematography, promote the creation of film, television and educational works, support the European
audiovisual industry in its adaptation to new technologies and in the digitisation of production, distribution
and archiving.
Situation in Poland
Polish strategic plans related to the issues of the information society also emphasise the significance of ensuring Polish content on the Internet67. They are implemented in e.g. the "Polish Internet Library". Another issue worth mentioning is the initiative to found the
"National Image and Sound Treasury" in digitised form,
which could be available also on the Internet.
Broadcasters and audiovisual producers have the information, creative, production and technical potential,
which can accelerate the dissemination of Polish content in cyberspace. The analogue-to-digital switchover
and the digitisation of production facilities, leading to
63
In Great Britain, the BBC has committed itself to devoting 30% of its budget to independent producers from outside London. The same
commitment for Channel 3 (a network of commercial stations) is 50% and 30% for Channel 4.
64
"Council Decision of 22 December 2000 adopting a multiannual Community programme to stimulate the development and use of
European digital content on the global networks and to promote linguistic diversity in the information society" (2001/48/EC). Official
Journal of the European Communities L 14/32, 18.1.2001.
65
Draft Recommendation Concerning the Promotion and Use of Multilingualism and Universal Access To Cyberspace.
66
"Council Resolution of 19 December 2002 on interactive media content in Europe" (2003/C 13/04). Official Journal of the European
Communities C13/8, 18.1.2003.
67
See"Strategia informatyzacji Rzeczpospolitej Polskiej – ePolska" (IT strategy for the Republic of Poland), op. cit.; "Wrota Polski. Wstêpna koncepcja projektu" (Gateway to Poland. Preliminary Project Outline). Warsaw: KBN, 2002.
42
Table 19 illustrates specialisation among satellite
channels accessible in EU countries.
Table 19. Thematic Satellite Channels in the EU
CONCLUSION 7
In keeping with the general trends, promoting the
broadcasting of programming content in cyberspace
should consist inter alia in promoting and creating
conditions for the activities of radio and television
broadcasters – including public service broadcasters
– to operate on the Internet and for the transforma−
tion of these producers also into multimedia content
producers, distributors or suppliers.
5.2. Broadcasters
General Trends
In January 2004 the EU countries were broadcasting
over 3,000 TV channels, whereof:
• 38 public service channels with a licence for national
coverage;
• 2 mixed ownership (public/private) channels with a licence for national coverage;
• 43 privately-owned channels with a licence for national coverage;
• 21 digital platforms distributing channels to end-users (cable operators and DTT operators are not included here);
• 75 publicly-owned channels with national coverage
through cable, satellite or DTT distribution;
• 702 privately-owned channels with national coverage
through cable, satellite or DTT distribution,
• 218 channels (public or private) targeting non-national markets.
• Around 1,900 channels with regional or local coverage, of which 62 are also accessible via satellite, meaning that they are de facto national or pan-European;
• 162 regional or local windows in national programming schedules.68
Situation in Poland
Poland has also seen its radio and television broadcasting and their programming offer expand in the recent
years. It was particularly visible in radio broadcasting
(some 200 local stations, several national or supra-regional channels) and in satellite television (over 400 domestic and foreign channels available through satellite or
CATV, whereof more than 50 in the Polish language).
The situation in terrestrial television is somewhat different. In addition to TVP S.A., which has 3 national channels, there are (excluding 8 local stations) 3 terrestrial
commercial stations, of which only one (Polsat) has national coverage and 2 (TVN and TV4) – supra-regional
coverage.
CONCLUSION 8
There is a lack of equilibrium in the programme of−
fering and coverage of television stations between pu−
blic service and commercial television broadcasting.
Viewers without access to satellite or cable televi−
sion (some 50% of the population) have a modest pro−
gramming offer at their disposal.
Efforts should be made to change this situation by
inter alia extending the coverage of commercial bro−
adcasters and/or promoting the development of CATV.
5.2.1. Public Service Broadcasters
As mentioned above, one of the objectives of national
media policy towards public service broadcasters should
be inter alia returning them to the public sector and ensuring that they are able to properly meet their obligations, among other things by separating the nomination
of their management from politics and HR policies based
on the criterion of competence.
Supervision over the activities of public radio and television broadcasting companies also needs to be strengthened.
a synergy effect thanks to the production of content,
which can be distributed on many platforms, will additionally strengthen this effect. As mentioned before with
regard to programme licences for public service broadcasters, national policy should aspire to lay down programming obligations for the broadcasters not only with
regard to traditional programming formulae and its distribution, but also with regard to new technologies.
68
"Transfrontier Television in the European Union: Market Impact and Selected Legal Aspects". Strasbourg: European Audiovisual Observatory, 2004.
43
Ensuring the proper functioning of public service broadcasters will also require adequate and secure financing from public funds and the transparency of their financial management. The long-term prospects of Telewizja Polska S.A. are threatened by the fact that its
advertising revenues are almost twice as high as revenues from TV licences. Safeguarding the ability of Telewizja Polska S.A. to properly fulfil its public service obligations calls for a major reversal of these proportions.
There are also other issues to be resolved, such as
e.g. the deteriorating financial results of 17 regional public service broadcasting companies.69
CONCLUSION 9
The fact that the legal form of joint−stock compa−
ny, nearly copied from the Commercial Code, was not
adapted to the specific obligations of public service
broadcasters was one of the reasons of the inadequ−
ate functioning of public radio and television broad−
casting companies.
Changing this situation will require: (1) strengthe−
ning supervision over management board activities;
(2) changes in the operating rules of these compa−
nies, to make cure that programming tasks become
the focus of these companies (programming licen−
ces, financial and programme acknowledgements of
duties fulfilled).
This implies public radio and television broadca−
sting companies will have to be exempted from many
more provisions of the Code of Commercial Compa−
nies than has been done to date.
CONCLUSION 10
From the perspective of national media policy the−
re are no reasons to restrict the scope of public se−
rvice broadcasters in areas, where there are no tech−
nical barriers, which would lead to a situation where
the development of one broadcaster/content supplier
would restrict other broadcasters'/operators' activi−
ties. This statement applies to satellite channels, in−
teractive radio and television broadcasting, the Inter−
net and new digital technologies. In the interest of
technical development of the media and social
growth, public service broadcasters should be given
opportunities (or sometimes – even have the obliga−
tion to) break into the area of new technologies.
5.2.1.2. Financing Public Service Broadcasters
5.2.1.1. Scope and Areas of Public Service
Broadcasters Activities
Public service broadcasters have a strong or even dominant (with regard to television) position in analogue terrestrial channels. There is no need or justification for their
further development in this field. A new financing system
for public service broadcasters may eventually necessitate a certain containment of their activities in this field.
Introducing digital terrestrial radio and television broadcasting may extend public service broadcasters' activities, but this should not happen at the expense of commercial broadcasters.
The media policy and the policy of leading Poland into
the information society should mandate public service broadcasters to engage in Internet activities and also, in the
area of new digital technologies. This will contribute to accelerating the popularisation of new technologies and to
the narrowing of the "digital divide", which tends to appear at the early stages of informatisation in the economy
and society. Public service broadcasters should keep
abreast of technological changes and media use patterns.
69
44
They should also adapt their operations to new conditions,
which is why public service broadcasters should obtain
one digital terrestrial radio and television multiplex.
Thus, there are valid reasons to finance these activities,
while retaining their non-commercial nature, with licence
fees (even if initially, it will not be available to all subscribers) and ensuring the right proportions in the allocation of
these funds to traditional activities and those related to
modern technologies. Whether public service broadcasters,
especially TVP S.A. (possibly in co-operation with other
parties) should or should not launch new licensed satellite
channels, should be only an issue of their own development strategies, provided that all requirements dealing with
their financing with non-public funds are met and that they
are not cross-subsidised with the funds earmarked for the
realisation of their public service remit (see below).
The percentage shares of the individual items in adjusted TVP S.A. revenues in the years 2000-2003 have
been shown in Table 20.
Table 20. Structure of the Revenues of TVP S.A.
Source: "Informacja o podstawowych problemach radiofonii i telewizji"(Information about the fundamental problems of radio and
television broadcasting), Warsaw: KRRiT, 2003.
In the recent years the share of TVP S.A. in the advertising market has oscillated around 50%.
The downward trend in advertising has continued in these companies for the past three years. See "17 spadków" (17 Falls), Press, No 4, 2003.
TVP's high reliance on advertising revenues (i.a. due
to poor licence fee collectability and no measures taken
to improve it) has long gone beyond all safe limits and
deprived this broadcaster of programme autonomy, forcing it to compete for audience and advertising revenues, with an obvious impact on programme content. At the
same time, its high share in the advertising market hurts
the growth of other television broadcasters.
TVP's low licence fee collectability also affects public
radio broadcasting.
to make sure that broadcasters using advertising revenues
do not violate the rules designed to protect competition and
the development of trade, has led to a number of complaints
filed by commercial EU broadcasters with the European
Commission in the nineties. They claimed that their countries
were violating the provisions of Article 87, through aids offered to public service broadcasters (financing with licence fees,
subsidies, tax breaks, etc.) in a manner, which, in their opinion, was distorting competition in the advertising market and
in the market of programme production.
CONCLUSION 11
To sort out these legal controversies, the so-called Amsterdam Protocol to the Treaty was adopted in 1997, which read:
This situation of low collectability calls for a fun−
damental change. Measures designed to correct this
situation should: (1) guarantee public service broad−
casters stable and increasing financing with licence−
fee revenues and thus diminish their reliance on ad−
vertising in the structure of their revenues; (2) give
commercial broadcasters the opportunity to increase
their share in the advertising market.
5.2.1.3. Position of the European Union on the Finan−
cing of Public Service Broadcasters
Considering the issue of public service broadcasters'
financing one must also take account of a protracted EU
debate on the subject.
On the basis of the Treaty establishing the European
Community and of the decision of the European Justice Tribunal in the 1974 Sachhi case, the European Union treats
public service broadcasters as "services of general economic interest". The great majority of public service broadcasters in the European Union are using various sources of
financing (public funds – State subsidies or licence fees and
advertising revenues) and thereby, they are not excluded
from the provisions on the internal market designed to protect competition (Article 86), or from those banning State aid
or aid from State sources, which could distort competition
by favouring certain undertakings (Article 87). They are therefore the undertakings stipulated in Article 86 (2) of the
Treaty, stating that: "Undertakings entrusted with the operation of services of general economic interest ... shall be
subject to the rules contained in this Treaty, in particular to
the rules on competition, insofar as the application of such
rules does not obstruct the performance, in law or in fact, of
the particular tasks assigned to them. The development of
trade must not be affected to such an extent as would be
contrary to the interests of the Community".
This complex legal situation, which at the same time intends to guarantee public service broadcasters the necessary conditions for the pursuit of their public service remit and,
"Considering that the system of public broadcasting in
the Member States is directly related to the democratic,
social and cultural needs of each society and to the need
to preserve media pluralism, have agreed upon the following interpretative provisions, which shall be annexed
to the Treaty establishing the European Community.
The provisions of the Treaty establishing the European Community shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting insofar as such funding is granted to broadcasting organisations for the fulfilment of the
public service remit as conferred, defined and organised
by each Member State, and insofar as such funding does
not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest, while the realisation of the remit of that
public service shall be taken into account."
Thus, the protocol recognised that on the basis of the
principle of subsidiarity, entrusting a broadcaster (or broadcasters) with the fulfilment of public service remit, its
definition and the organisation of its fulfilment, including
the funding of public service broadcasters, remained within the competences of the Member States. They could
provide double funding (licence fees plus advertising revenues) to public service broadcasters, but only insofar
as such funding did not affect trading conditions or competition in the Community, while the realisation of that
public service remit had to be taken into account.
The adoption of the Amsterdam Protocol, which by the
way, was prone to opposing interpretations, did not end
the dispute about the position of public service broadcasters on the market and about the rules applicable to
their funding. This was why the European Commission
issued a "Communication from the Commission on the
application of State aid rules to public service broadcasting"70, which explained the Commission's interpretation of the Protocol and how its rules should be applied
in practice.71
70
Communication from the Commission on the application of State aid rules to public service broadcasting (2001/C 320/04). "Official
Journal of the European Communities", C 320, 15.11.2001, p. 5-11.
71
The Communication allows the broad definition of public service mandate (See point 13): "a wide definition, entrusting a given broad-
45
The Communication requires that public funding be
earmarked only for the fulfilment of formally defined public service remit and that it should not be used to subsidise commercial and market activities, which could distort
competition with undertakings, which do not use public
funding. On the other hand, this does not mean that commercial revenues cannot be earmarked for the financing
of obligations proper to public service media.
The Communication derives these provisions i.a from
the European Commission Directive amending Directive
80/723/EEC on the transparency of financial relations
between Member States and public undertakings72. This
Directive mandates the Member States to organise the
flow of funds between themselves and private undertakings providing general economic interest services and
to ensure an organisational and financial structure of undertakings realising both public service remit and performing other activities, so as to provide separate accounting showing – on the one hand – public funds and their
disbursement and – on the other – funds from other sources, ensuring full transparency with regard to the use
of public funds, costs and revenues related to various types of activities and the methods of cost and revenue
allocation to these activities.
The Communication states in point 53 that "...Member
States may consider the whole programming of the broadcasters as covered by the public service remit... ". This
means, that this system prevents the distinction of "public service remit" genres from "commercial" genres in the
programming of a public sector broadcaster and therefore, the broadcaster cannot be required to keep separate
accounting for these genres. In practice, separate accounting applies to pure market activities, such as the sale
of advertising time, trading in copyrights, broadcasting
sponsored or commercial programmes, e-commerce, etc.
This is also intended to prevent the covert subsidising of
these activities with public funds.
5.2.1.4. Financing Polish Public Service Broadcasters
Public service broadcasters should focus on their core
activities, i.e. those, which further their public service remit. Public funds can be used only for these purposes.
A public broadcaster make take up other programming
activities, but must obtain a licence for such new programmes (satellite or digital) and finance them with funds
other than public funds.
It is also advisable to change the legal construction of
the licence fee, which should no longer be linked to the
possession of a receiver, but to the ability to receive radio
or television programming, irrespective of the terminal
used for these purposes (traditional receiver, mobile receiver, car equipment, computer, Internet, cable, etc.).73
Licence-fee rates should be fixed by the Parliament for
a three-year period, upon a motion of KRRiT, formulated
after consultation with public service broadcasters.
Tax offices will collect licence fees and transfer them
in full into a special account of the market regulator, who
will transmit all the funds thus collected to public service
broadcasters in earlier agreed tranches, so as to optimise their tax burden.
To guarantee licence-fee revenues to public service broadcasters, the State will compensate them for any shortcomings in licence-fee revenues due to licence-fee breaks or
exemptions granted to various groups of receivers.
The State will also guarantee that public service broadcasters will receive licence fees in the full amount resulting from the amount of individual licence fees multiplied by the total number of subscribers.74
caster with the task of providing balanced and varied programming in accordance with the remit, while preserving a certain level of audience, may
be considered, in view of the interpretative provisions of the Protocol, legitimate [from the perspective of the provisions – K.J.] ... Such a definition
would be consistent with the objective of fulfilling the democratic, social and cultural needs of a particular society and guaranteeing pluralism,
including cultural and linguistic diversity." (point 33). "Public service duties may be either quantitative or qualitative or both". (point 44). Similarly, the
public service remit might include certain services that are not programmes in the traditional sense, such as on-line information services, to the
extent that while taking into account the development and diversification of activities in the digital age, they are addressing the same democratic,
social and cultural needs of the society in question. (point 34). The Communication states that the definition of the public service mandate should
be as precise as possible (point 37), so as to enable the Commission to avoid doubt in assessing the conformity of the public service mandate
with EU provisions. The Commission will concentrate on the identification of manifest errors (point 36), rather than decide whether a public service
broadcaster should broadcast programmes of one type or another. Public service broadcasters may perform commercial activities, but such
activities cannot normally be viewed as part of public service remit (point 36) and therefore cannot be financed with public funds.
72
Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between
Member States and public undertakings. "Official Journal of the European Communities" 29.7.2000 L 193/75
73
This legal construction has been adopted in Switzerland, where the applicable provisions state: "Fees for reception are licence fees,
which are due on both foreign and Swiss programmes, which are actually received. The obligation to pay the fees is not created exclusively by the actual operation of a receiver, but at the time of its installation (...) a receiver shall be deemed installed, when it can be
turned on, by performing a few simple steps (e.g. plugging into the mains or connecting an aerial). Households or undertakings, which
only own portable receivers (e.g. car radios) are also liable for these fees. The obligation to register is the beginning of the obligation to
pay the fees. The beginning and end of the obligation have been precisely defined. Registration must be filed with an authority responsible for the collection of fees, before the fact giving rise to the obligation to pay had taken place. All changes must be reported, especially
where there are no more any used or installed receivers. Such notification is crucial for the expiry of the obligation to pay, as this
obligation expires only at the end of the month following the notification of the fee-collecting authority about the new situation".
74
As mentioned above, Estonia decided to forego licence fees and advertising in public media, leaving the financing of these media to the
State Treasury. Hungary, in June 2002 "suspended" (or in fact abolished) licence fees, which made budget subsidies the main source
of financing for public service broadcasters.
46
Public service broadcasters will be able to broadcast
advertisements, but restrictions (on time or other)75 will
ensure that their advertising revenues will only supplement licence-fee revenues. Such restrictions should be
set out in the Act, preserving an appropriate vacatio legis, enabling public service broadcasters to adjust their
cost structures to anticipated revenue levels.
A fundamental challenge for the mechanism of public
service broadcasters financing will be to create conditions
permitting cost rationalisation and major shifts in their revenue structure, so that they no longer create pressure on
programme commercialisation. A whole set of measures
is required to achieve that goal. On the one hand, the restructuring of costs and employment and on the other, allowing them to engage in other commercial activities, e.g.
publishing, services, pay-TV, concerts, recording, trading
in rights, merchandising and others. This is why public
service broadcasters should be able to embark on separate commercial ventures, using the benefits therefrom to
support their core programming activities.
Cost rationalisation will require a number of different
measures. First of all, PR S.A. and TVP S.A. should be
rid of all costs, which cannot be allocated to programming
activities targeted at audiences other than domestic.
Thus, the activities of such channels as Radio Polonia
and TVP Polonia should be financed exclusively with
funds from the State budget.
Another thing that is required will be to reach social
consensus on the definition of the obligation of public
service media and their role in the broadcasting system
in Poland, which will allow them to retain a high share in
the audience (but without the financial pressure derived,
as in the case of TVP S.A., from reliance on advertising
money) and prevent their marginalisation. Failing that, it
will be very difficult to ensure real cost separation.
Public service broadcasters' economic and financial
systems need to be reformed to provide incentive to rationalise costs – internal market, management contracts for
top management tied to the achievement of that goal,
changes in the remuneration system, offering bonuses for
cutting costs, but without detriment to the obligations, etc.
It goes without saying that employment in public service broadcasting requires further cuts.
Structural solutions will also be required. One of them
is the proposal to establish a regional radio holding
(HRR), designed to cut down the operating costs of regional public service radio broadcasting (see below).
Another issue waiting for decision is the role and tasks
of the regional divisions of TVP S.A. If no additional financing can be obtained for them (see below), we must
continue the already advanced process of abandoning
the original, wholly unrealistic and "unfinanceable" conceptions, which treated these divisions as regional TV
stations, independent in terms of programming. This has
led to major investment in these divisions and massive
employment, which is a serious burden on TVP S.A., incommensurate to their potential contribution to TVP S.A.'s
content production. It may be necessary to define their
role as mere regional divisions, responsible for filling their own bands with their own information and journalism,
without engaging in any other production and with a considerable reduction in employment and costs derived
from the need to maintain considerable assets and production facilities.
As an extreme, which should be avoided if possible, it
may be necessary to contain the scope of activities of PR
S.A. or TVP S.A. by abandoning one of the forms of their
programming activities, e.g. one of national programmes/
channels.
To change the structure of revenues and strengthen
the ability of public service media to deliver on their obligations, one could consider establishing, e.g. in 2006,
a fund made up of monies levied as an excise tax on
radio and TV advertising.
In particular, it is proposed to limit advertising in regional
radio programmes and on TVP3 to 7%. The proposed limitation can be treated as medium-term goal, meaning that it
could be implemented gradually over 3 years, in line with
the rule – higher limitations=higher taxes, e.g. from a starting
level of 3% net to a maximum level never exceeding 5%.
Restrictions on advertising should apply to a lesser
extent to the public service broadcasters of national radio programmes than to national TVP channels. Considering the abolition of capital restrictions in connection
with EU accession and potentially more aggressive competition at the national level, excessive restrictions on
their ability to generate revenue, could lead to the marginalisation of public service broadcasters.
The monies in this fund would come from a special
linear (excise) tax on radio and TV advertising (both PSB
and commercial) and could be assigned according to
precisely defined administrative and allocation procedures, for the financing of public service, social and local
media. Monies from the compensation fund would be
divided as follows: 80% for the public media (earmarked
for TVP3 and regional public service radio stations), 20%
for commercial local media and social media. Local and
social media could apply for grants, presenting specific
programming tasks that they wish to implement. Public
service media would assign such additional funds to fulfil a part of their obligations under programme licences,
with the proviso that these funds would require accounting separation. The proposed solution meets expectations related to the balancing of the markets:
• it would help in using the existing potential of TVP's
regional divisions and of the regional public service
radio stations;
75
The following European countries have limited or completely banned advertising in public service programming: Great Britain, Norway,
Sweden, Belgium, Denmark, Finland, Germany, Austria, Portugal, Ireland, Italy, the Netherlands, Switzerland, France, Greece, Iceland
and Spain. See "Synopsis of replies to the enquiry on the specific limits on advertising and sponsorship on publicly-funded channels
(including new services)". European Broadcasting Union, December 2000.
47
• it would promote the development of local and social
media, at the same time preventing the excessive centralisation of electronic media in Poland;
• it would favour the growth of intermedia competition,
especially between the press and electronic media in
local markets;
• despite the marginal role of advertising in the financing
of regional public service media, such revenues would
contribute to their continuing interest in the market and
efforts to maintain a good position among the audience.
This proposed solutions favours the use of the potential of the regional media and makes it possible to transfer
a part of the budgets to national programmes. Along with
increased licence fee collectability, financial and employment restructuring, accompanied by the opportunity to take
up commercial activities, it would create favourable conditions for the harmonious development of the entire electronic media sector on the national, regional and local level, both for public service and commercial media.
In designing the prospective advertising tax (exciselike) one should develop a forecast of net advertising
revenues. Given significant differences between gross
(price-list) and net (actual) revenues going into scores of
percentage points, forecasting on the basis of uncertain
figures could lead to serious problems with the achievement of the desired objectives related to the development
of public service, social and local media.
This tax cannot be excessive, because this would stimulate avoidance, e.g. by moving advertising activities
to other EU countries. The tax should be introduced gradually, its rules should be fixed for many years ahead
and the tax rate should be correlated to the scale of advertising limitations imposed on the public service broadcaster. The higher the limitations – the higher the tax.
If the simplest possible linear construction of the advertising tax were to be applied, the tax could generate
revenues presented in Tables 21 and 22.
Tax revenues should be a complementary source for
expenditure related to the achievement of public service
remit objectives in radio and television broadcasting for
public service, social and local broadcasters.
On the one hand, this tax on radio advertising, introduced with
due advance, would serve to generate funds designed to support the structural reform of regional public service radio (preparation for joining the holding, moratorium on indebtedness and
other goals), through the consolidation of administrative, marketing, investment and management functions in the regional radio
holding (HRR). On the other hand, a part of the funds (20%) could be used for grants for social and local radio. Such a reallocation of funds would promote the achievement of social objectives
and the activisation of local stations.
76
77
Table 21 Tax Revenues from Taxation of TV
Advertising in the Years 2006−2010 (Forecast)
* 1
= 4.39 PLN (2003)
Table 22 Tax Revenues from Taxation of Radio
Advertising in the Years 2006−2010 (Forecast)
* 1
= 4.39 PLN (2003)
Grants for social and local broadcasters would be assigned by the market regulator on the same principles as
non licence-fee funds, i.e. under transparent procedures
(see notes on regulator).
The new legislation should provide for accounting separation for public funds received and disbursed, from
commercial funds in public service broadcasting companies, for their observance of fair trading policies (no subsidising of commercial activities with public funds), which
will prevent the disruption of competition in the advertising market and in the programme rights' market.
Organising Polish public service broadcasters into
holdings will help ensuring the transparency of their financial management. There is no such direct requirement in EU laws, but as said before, this solution will also
serve other purposes in the Polish environment. In financial matters it will serve the structural separation, within
one holding, of programming entities having a public
service remit from entities having market or commercial
objectives.76 This will make it possible to introduce accounting separation for public and commercial funding prescribed by EU regulations and to avert cross-subsidising
commercial activities with public funds.
As said before an increasing number of European
countries are implementing additional solutions, which
involve the determination by government authorities and
public service broadcasters of the latter's obligations with
regard to programme and their financial management for
several years' periods and the close supervision of State
authorities over such "contracts".77 Such "contracts" also
This solution has been successfully applied in e.g. French public service TV France Television.
In France this role is played by "contrats d’objectifs et de moyens" – documents introduced following the amendment of the Act on Radio and
Television Broadcasting in 2000. They could be called a combination of strategic plans and business plans of the individual public service broadcasters. They are "arrangements" between the government and public service broadcasters (the Act provides for a 3-5 years’ lifetime), which set
out the objectives (corporate, investment, development, technological and programme, specified in a "cahier des charges") that public service
broadcasters are to achieve and provide guarantees as to the amounts the broadcasters will receive from the state to achieve them.
48
guarantee public service broadcasters that all their
outlays, within the limits set out in such multi-annual contracts, will be financed.
Thus, we should introduce a rule whereby Polish public service broadcasters would submit their 3-5 year
programming, financial and investment plans, approved
by their supervisory boards, to the National Council. The
Council would then assess them, mostly from the perspective of conformity with the definition of the role and
obligations of public service broadcasters and of the
possibility of financing them in view of the anticipated
level of the broadcaster's revenues. KRRiT's approval for
such a plan would constitute a guarantee that all costs
involved in its realisation will be paid for.
CONCLUSION 12
1. Within the limits of EU policy, Poland can freely de−
fine the sources and level of funding for public
service broadcasters.
2. Licence fee collectability to be increased by elimi−
nating evasion (collection through tax offices or
specialised undertaking selected under a tender).
Where there are licence fee exemptions, the legi−
slator should guarantee that PSBs would receive
the full financing due therefor.
3. The Broadcasting Act is to mandate public service
broadcasters to keep separate accounts for the ap−
plication of public and other funds. There should be a
statutory ban on unfair competition consisting in the
use of public funds for the purposes of price dumping.
4. Gradually and subject to appropriate vacatio legis,
transmission time earmarked for advertising in the
programmes of public service broadcasters sho−
uld be reduced.
5. A fund should be set up for public service (regio−
nal), social and local broadcasters, financed with an
excise tax on radio and television advertising.
6. To offer public service broadcasters a stable per−
spective and a chance to implement long−term plan−
ning, a system should be introduced whereby Polish
public service broadcasters would submit their 3−5
year programming, financial and investment plans
for KRRiT's approval, where such approval would
constitute a financial guarantee for approved plans.
5.2.1.5. Legal Form and Organisational Structure of
Public Service Broadcasters
The current legal form of public service broadcasters,
i.e. as joint-stock companies, is recognised in the public
debates as one of the premises of the commercialisation
of Telewizja Polska S.A. In actual fact, the legal form of
a joint-stock company, is not an autonomous cause of
this process. There is nothing in the articles of association of commercial law companies to mandate the generation of profits. A company may just as well have nonprofit objectives. This is why we are not proposing to
change the legal form of public service broadcasters.
The proposal is to first establish a regional radio
holding (HRR) (Polish Regional Radio) which would
group all the regional companies, which exist today.
This solution would create a strong, new undertaking,
combining all marketing and financial functions, having
a co-ordinated investment policy and innovative strategy
(e.g. of the introduction of digital broadcasting using the
DAB standard). A single Regional Radio holding, respecting the programming autonomy of local stations, funded
with licence-fee revenues, monies from the proposed
fund and – in much smaller proportions – with revenues
from advertising in local markets, should be more competitive on the national scale, than 17 small local companies. This solution would also give employment savings amounting to several hundred jobs (supervisory
boards, financial and marketing services, which exist in
all of the currently existing regional companies). A stronger regional holding would be also independent from local politicians and more resistant to political pressures.
Once the holding structure has proved itself in public
radio (HRR), both in economic terms (lower fixed costs
per hour of airtime, synergies, common marketing, innovation and financial strategies, including the separation
of production financed with public (licence-fee) funds)
and in programme terms (pluralism, focus on regional
and local issues, joint efforts to fulfil programme licence
obligations), then in the perspective of several years, its
experiences could be used for regional television, which
would imply the separation of TVP3 from the proposed
television holding and the establishment of
a separate undertaking, i.e. a Regional Television Holding (HTR). Such a decision could be considered only
after several years' of experience with the operation of
the public service radio holding and after a detailed economic analysis of such an endeavour by a renowned
consultancy.
Strengthening the role of local media to intensify focus on regional issues and greater pluralism would also
require devoting more attention to these questions in the
following passages of the contemplated legislation:
• in the part defining the public service remit of the public service media: emphasising the need to focus on
local and regional issues, considered as important for
identity, including our European identity and being an
element of media diversity and pluralism;
• in the part dealing with the drafting of programme licences: inclusion of a mechanism dealing with obligations concerning local and regional information in
programme contracts for the realisation of public service remit with public (licence fee) funding;
• in the part dealing with the structure of the new regulatory authority: content regulation would require statutory care for the presence of local and regional focus, e.g. by establishing a sub-committee responsible
for these issues within the Programme Council (advisory) of the regulator.
Establishing a holding or holdings must be a process
spread over time. This is due to both economic premises
49
(the need to elaborate a development strategy and
a business plan for the holding before its establishment
and the adjustment of legal and organisational solutions
to this strategic conception). If a holding were additionally to produce tax benefits derived from better and more
flexible financing, which is possible in a holding structure, then even before its foundation, one should clarify the
financial situation of the entities, which are to become
parts of the future holding. They cannot be indebted, or
have tax arrears, they should meet the requirements on
the average equity of each participant of the group, the
share capital must be fully paid up, contributions in kind
already made and the future profits of the group should
not be less than 8% of the revenues. Financial statements would also have to be consolidated.
Holdings would be wholly owned by the State Treasury, while the entities, which will make them up, will be
owned by the holdings. Subsidiaries would have the form
of organisational units and, where appropriate, they could be daughter companies.
Within the structure of the holding one could have the
following types of dependent entities:
1. programming entities;
2. production entities (studios, technical backup, etc.);
3. auxiliary entities (undertakings created to carry out
maintenance, administrative and other tasks).
4. other entities formed by the holding.
A holding would have no authority to sell, wind up or
privatise programme units (except licensed programmes)
without the prior approval of a representative of the State
Treasury granted at the general shareholders' meeting
and from the National Council.
From tax law perspective, holdings would be treated
as a single entity only to such extent, as the component
parts of the holding would be 100% state-owned.
The Chairman of the Management Board would nominate governing bodies made up of directors (chairmen)
of dependent entities making up the holding. All appointments to the positions of chairmen of dependent entities
would have to be approved by the supervisory board.
The new Act should also make it mandatory for the
appointment of top management (chairmen, directors
general, chief accountants and directors of organisational units) to be done on the basis of competitions.
CONCLUSION 13
To ensure financial transparency and improve eco−
nomic effectiveness, it is proposed to:
1. transform regional public service stations into a re−
gional radio holding (HRR);
2. consider, in the longer term, transforming public
service radio and television into Polskie Radio
Holding SA and Telewizja Polska Holding SA.
5.2.1.6. Competences of the Management Board
and of the Supervisory Board
Equipping the Supervisory Board with the powers to authorise the Management Board to conclude a programme licence
(see above) agreement points to a different than earlier perception of the role of this body in public radio and television broadcasting companies. The solutions used so far gave the supervisory boards practically no means, except very extreme
(and difficult to apply in practice) to suspend or dismiss board
members or correct their potential mistakes.
Yet, whilst retaining the statutory principle of the non-intervention of the supervisory board in the day-to-day running of
the company, the supervisory board may be equipped with the
authority to make decisions on strategic issues.
A holding would have the following bodies:
CONCLUSION 14
1. The General Shareholders' Meeting (Minister of State
Treasury);
2. The Supervisory Board – 5 members, whereof 4 appointed by the regulator and one by the Treasury
Minister;
3. The Management Board nominated by the Supervisory Council, following a competition.
Dependent entities will submit reports on their activities to the Management Board of the Holding.
The regulator will adopt, publish and enforce rules and
procedures applicable to the appointment of supervisory
boards, so as to ensure that the procedure itself is transparent and open and that the make-up of the boards meets
the requirements of pluralism and social representation.78
78
Supervisory boards will now have the following addi−
tional competences: (1) approving annual and multi−an−
nual financial and investment plans; (2) approving 3−5
year programmes and financial plans submit ted for
KRRiT's approval; (3) authorising managment boards to
conclude agreements with the Chairman of KRRiT on
programme licences; (4) approving decisions on the no−
mination of the chairmen of dependent entities.
5.2.2. Commercial Broadcasters
The situation of commercial broadcasters will become
more stable thanks to: (1) the existence of a national au-
Recommendation No R(96)10 of the Committee of Ministers of the Council of Europe on the guarantee of the independence of public
service broadcasting states, that the bodies of these broadcasters shall be "appointed in an open and pluralistic manner" and their
members should "represent collectively the interests of the society in general".
50
The present licensing system would be retained, supplemented only with provisions dealing with licence renewal at broadcaster's request.
5.2.3. Social Broadcasters
Social broadcasters cannot devote more than 2% of
their airtime to advertising and do not pay licence fees.
Social broadcasters, who do not broadcast advertisements, should be eligible for financial support from the
Radio and Television Fund. The National Council will
appoint a special commission made up of representatives of broadcasters, viewers and listeners, which will
hold competitions for grants for the realisation of individual programme projects.
5.3. Protecting Competition in the Electronic Media
General Trends
Market globalisation, international integration and the
quest by media groups for such concentration effects as
economies of scale and scope, diversification and synergy, as well as convergence and rapid technological progress drive media concentration on the national and international scale.
We can distinguish between horizontal integration
(integration of various undertakings within the same medium) and vertical integration, combining different manufacturing, operating or distribution stages of a product
or work within a single undertaking. Then again, we
have upstream vertical integration (towards the sources
of the product and means used to make it) and down-
stream (towards the forms of its exploitation and distribution).
In other terms, we distinguish between:
• intramedia concentration (within a single mass medium),
• intermedia concentration (combining press with the radio or TV, also known as "media cross-ownership"),
• intersector concentration (combining the media with
undertakings from other industries)
• and international concentration.
For many years now, this process has been the subject of a heated European debate on media pluralism.
Article 11 of the Charter of Fundamental Rights of the
European Union79, adopted in 2000 mandates the protection of media freedom and pluralism. A resolution of
the European Parliament80 adopted in 2002 calls upon
the Member States to safeguard media pluralism and the
European Commission – to complete its studies on possible legal solutions safeguarding media freedom and
pluralism and to submit appropriate proposals to the
European Convention.
There are many documents in which the European
Council emphasised the significance of media pluralism.
In 1999 the Committee of Ministers of the EU adopted
a recommendation on measures to promote media pluralism81, in which it enumerated the measures, which could be adopted to achieve this objective and called upon
the Member States to "consider" taking such measures
and introducing such provisions.
Thus, neither of these European organisations has
adopted the instruments of international law, which would create a direct obligation of the Member States to introduce concrete measures aimed at the achievement of
that goal, nor have they defined in a precise and legally
binding manner, what they understand by "media pluralism" or the criteria to be used to assess, whether
a particular media market is pluralistic or not.82
Protecting market competition, including competition in
the media market, is one of the objectives of the European Union. The Union has the necessary authority to ban
mergers and take-overs, which could distort competition,
also in the area of the media and new technologies.83
Also the new package of electronic communications di-
79
Charter of Fundamental Rights of the European Union. (2000/C 364/01). Official Journal of the European Communities C 364/1,
18.12.2000.
80
European Parliament resolution on media concentration, P5_TA-PROV(2002)0554.
81
Recommendation No. R (99) 1 of the Committee of Ministers to Member States on Measures to Promote Media Pluralism (Adopted by
the Committee of Ministers on 19 January 1999,at the 656th meeting of the Ministers’ Deputies).
82
The analysis of the European Human Rights Convention and of the judicial decision of the European Human Rights Tribunal, presented
in a report entitled "Media diversity in Europe" (Report prepared by the Advisory Panel to the CDMM on media concentrations, pluralism
and diversity questions) on media diversity in Europe points out that it is possible to derive the obligation of concern about media plurality
out of Article 10 of the Convention and that the Tribunal had done just that in many of its decisions. However, this does not represent
any specific legal obligation for the States – Parties to the Convention, to implement any measures to achieve that objective.
diovisual policy developed by the National Council in communication with the Prime Minister, establishing a predictable, multi-annual perspective for business activities; (2)
restrictions on public service broadcasters' advertising
activities; (3) introduction of licence renewals; and (4)
a precise definition of the procedures and criteria used by
the regulator in making decisions on licences.
83
See e.g. Miguel Mendes Pereira, "The ICT and Media Sectors within the EU Policy Framework" Vertical and horizontal integration in the media
sector and EU competition law. European Commission, Competition DG. Information, communication and multimedia, Brussels,
7 April 2003;. Alison Harcourt "Europeanisation as Convergence: the regulation of media markets in the European Union" (in) K. Featherstone and C. Radaelli (ed. ed.) The Politics of Europeanisation. Oxford: Oxford University Press, 2002.
51
rectives (see below) contains provisions mandating the
regulations of SMP undertakings, which bears some relevance to radio and television broadcasting.84
Yet European-level discussions on guarantees of
media pluralism85 have so far come to nothing. Despite
years spent on attempts to draft such a directive86, which
in its first version would be intended to restrict concentration on the European level and in the second – only
harmonise the relevant laws in the Members States, such
a directive has never been submitted for a debate.87
Thus, EU Member States are free to restrict media
concentration at their discretion to protect media pluralism, provided that their laws are in line with the essential rules of the internal market dealing with the free movement of capital, services and people and the freedom
to pursue business activities.
Various countries have a broad range of regulations
designed to restrict various types of media concentration.88
There are also many countries, which opted against the
introduction of such regulations or have introduced them
only to a limited extent. There are also restrictions on concentration in the mass media and telecommunications.89
In the recent years, changes in regulations dealing
with restricting media concentration and the protection of
• the recognition of the role of the media and new information and communication technologies in the economy and in promoting economic growth and technological progress, which calls for market liberalisation
even, if it is to be partly done at the expense of the
cultural role of the media and certain public policy
objectives realised through the media;
• media globalisation and development of new technologies, which seriously undermined the effectiveness
of regulations written at the time, when media markets
were national markets with traditional mass media and
are causing major problems, especially with regard to
jurisdiction;
• the already achieved level of international media concentration (see Bertelsmann's case), leading to a situation where attempting to restrict media concentration
in national markets, would weaken undertakings in international competition, which is becoming even tougher due i.a. to the further liberalisation of media concentration laws in the United States91;
84
"Commission Recommendation of 11/02/2003 on Relevant Product and Service Markets within the electronic communications sector
susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common
regulatory framework for electronic communication networks and services". Commission of the European Communities Brussels, 11/02/
2003 C(2003)497; "Commission guidelines on market analysis and the assessment of significant market power under the Community
regulatory framework for electronic communications networks and services" (2002/C 165/03) Official Journal of the European Communities C 165/6, 11.7.2002; "Market Definitions for Regulatory Obligations in Communications Markets, A Study for the European Commission. Executive Summary".Brussels: Squire, Sanders & Dempsey L.L.P.,May 2002
85
See "Pluralism and Media Concentration in the Internal Market" (COM (92) 480). Brussels: European Commission, 1992.
86
See A.J. Harcourt, "EU media ownership regulation: conflict over the definition of alternatives". Journal of Common Market Studies,
September 1998.
87
However, one may point to serious differences of opinion with that respect, even within the European Union. The European Parliament
has traditionally favoured activities designed to promote media pluralism and to contain media concentration; the General Directorate for
Education and Culture has for a long time favoured the harmonisation of EU regulations on the containment of media concentration, while
the General Directorate in charge of telecommunications and the Information Society favoured liberalisation (supported e.g. by the European Tribunal of Justice, some other general directorates, the WTO, OECD, Germany, Great Britain, media corporations, etc.) and
intervention into the media market exclusively on the basis of competition law. See Alison Harcourt, "Media ownership policy: the limits
of technocratic regulation" (in) C. Radaelli (ed.) Technocracy in the European Union. London: Addison Wesley Longman, 1999.
88
See "Television and Media Concentration. Regulatory Models on the National and the European Level". Strasbourg, European Audiovisual Observatory, 2001; "Comparative Table of National Legislation of Relevance in the Area of Media Concentration". Committee of
Experts on Media Concentration and Pluralism, MM-CN (96) 4 Rev. Strasbourg: Council of Europe, 1996. As of 2001, out of 17 countries
covered by the analysis, restrictions on the ownership of television stations existed in the USA, Australia, Germany, France, Italy, the
Netherlands, Portugal, Austria, Luxembourg, Belgium and Denmark. Restrictions on press ownership existed in Italy and France. Restrictions on intermedia concentration – in the USA, Australia, Germany, France, Italy, Greece, the Netherlands, Ireland, Austria and
Belgium. Restrictions on foreign media ownership were in place in the USA, Australia, France, Italy, Greece and Austria. See "Consultation on Media Ownership Rules". London: Department for Culture, Media and Sport, Department of Trade and Industry, 2001.
89
See "Cross-ownership and Convergence. Policy Issues". Working Party on Telecommunication and Information Services Policies,
Directorate for Science Technology and Industry, DSTI/ICCP/TISP(98) 3FINAL. Paris, OECD, 1998.
90
Yet, when this process goes too far, opposite trends may be observed. A draft of a farreaching liberalisation of media ownership under
the British Communications Act has been contained by amendments put forward in the House of Lords, which required the British government to give consideration to safeguarding market pluralism at the time, when it consented to the sale of e.g. TV stations to foreign
buyers. Also in the United States, liberal provisions introduced by the Federal Communications Commission, allowing a single broadcaster to control 45% of the television market, have been amended by the House of Representatives, bringing the figure down to 35%.
91
52
medial pluralism have consisted mostly in their liberalisation, elimination of restrictions and promoting the operation of market mechanisms.90 Among other things, this
was due to:
See: Document of the American Federal Communications Commission of July 2003 ("2002 Biennial Regulatory Review – Review of the
Each of the above arguments has its counter-arguments, raising e.g. threats to democracy and the public
sphere derived from the increasing power (economic, but
also political influence) of media corporations. Even in
countries with well-established democracies, great media corporations wield enormous political influence and
power to participate in the shaping of public debates.
Another argument is the fact that even though new information and communications technologies prevent monopolising information, their content is to a very limited
extent related to the situation in the individual countries,
their culture or tradition and that their social impact is still
very limited, comparing to the influence exerted by the
mass media, television in particular. Thus, media concentration on the national level may influence the number of
information sources and the nature of information that
citizens obtain about national affairs.
Additionally, "digital gateways" and other means designed to restrict access to the provision or reception of
services (including programming services), made possible
by new technologies, are gaining increasing importance.
Situation in Poland
Market processes in Poland have also activated all the
forms of mass media92 concentration described above,
which was due to the activities of both domestic and foreign undertakings.93
On the one hand, both Polish and foreign commentators are warning against the "Latin- Americanisation" of
the Polish media market.94
On the other, arguments are raised that Polish capital is
not given a fair chance to compete against foreign capital,
or even that foreign capital is privileged and that measures
are introduced, which are harmful for the Polish media and
on top of it all – they run against global market trends.95
Any possible restrictions on mass media concentration
to protect pluralism are an issue of a political nature, closely correlated to the ideological premises of the social
model introduced in Poland and to the general social
and economic policy, as well as to the adopted model of
media regulation (opening up the market or interventionist). As such, this issue should not be dealt with in the
proposed Act on electronic media.
Any decisions affecting these issues must be based
on a much broader public debate and the appropriate
instrument to introduce prospective changes into the
Polish legal order may be the Press Law or the Law on
the Protection of Competition and Consumers.
The future Act on electronic media should prevent the most
blatant forms of monopolisation (due to ownership concentration) in Polish electronic media in the national market and or
in regional/local markets. Public service broadcasters should be
exempted from the relevant pro visions.
The provisions of the electronic media Act should protect competition in this sector and therefore should focus
i.a. on the following aspects of competition policy:
• trading in key programming rights in the audiovisual
sector;
• conditional access systems and digital programming
distribution networks;
• strategic alliances in the digital environment;
• ownership changes resulting in changes in the nature
of broadcasters.
5.4. DIGITAL RADIO AND TELEVISION BROADCASTING
There is a number of ways to broadcast digital radio
and television, the most important ones being terrestrial,
cable or satellite broadcasting.
Commission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996"),
which provided a far-reaching liberalisation of provisions restricting the electronic media and press concentration leading to increased
ownership concentration.
92
See "Procesy w³asnoœciowe i koncentracja w œrodkach masowego przekazu" (Ownership processes and concentration in the mass
media). Warsaw: Zespó³ ds. Badania Procesów W³asnoœciowych i Koncentracji Kapita³u w Œrodkach Masowego Przekazu (Research
Group for Ownership Processes and Capital Concentration in the Mass Media), 1999.
93
See i.a. Ryszard Filas, "Kapita³ zagraniczny w polskich mediach audiowizualnych" (Foreign capital in Polish audiovisual media), Zeszyty Prasoznawcze, No 3-4, 2000; Katarzyna Cira, "Zagraniczne koncerny prasowe na polskim rynku dzienników regionalnych" ( Foreign
press corporations in the Polish market of regional dailies), Zeszyty Prasoznawcze, No 1-2, 2000.
94
Commenting on the situation in CEE countries resulting from the operation of foreign media corporations, the authors of a paper by the
European Federation of Journalists wrote: "... the increasing domination of the media by foreign media groups is a result of the colonisation of the markets since 1989 (...) The former state monopoly, especially in the press, has been replaced by commercial monopolies".
(See Eastern Empires. Foreign Ownership in Central and Eastern European Media: Ownership, Policy Issues and Strategies. Brussels,
European Federation of Journalists, June 2003).
• major problems in the definition of the criteria to be
used in restricting media concentration;
• the conviction that media development (including the
Internet and new technologies) seriously limits or even
prevents the monopolisation of information sources
and mass media content.
95
See "Polska przeciwko œwiatowym tendencjom rynku?" (Poland against world market trends?) and "Opinia Polskiej Konfederacji Pracodawców Prywatnych dotycz¹ca projektu nowelizacji ustawy o radiofonii i telewizji" (Opinion of the Polish Federation of Private Employers on the draft amendments to the Broadcasting Act).Warsaw: Polska Konfederacja Pracodawców Prywatnych, 2002.
53
There is a vast body of literature96 discussing the significance of the popularisation of digital technology in
radio and television broadcasting. Its popularisation will
serve the following goals:
• the audience will be given a broader programme offering and access to teleinformatic services, as well as
portable and mobile television;
• broadcasters will be offered better chances to develop their activities, both programming activities and
market activities, including the promotion of market
segmentation (thanks to thematic channels) and the
isolation of target groups for programming and advertising, as well as the introduction of e-commerce;
• by increasing the number of broadcasters and removing
technical barriers (scarcity of frequencies) to market entry,
it will lead to greater competition, resulting in a more pluralistic offering and increased outlays on programming;
• from the perspective of national policy, apart from objectives related to the development of broadcasting
and the chance to use some frequencies currently
used for broadcasting97 for other purposes or the intensification of business activities in the sector of the
media and new technologies, it is also a precondition
for the implementation of national technical and economic development plans and for the implementation
of the e-Poland programme, let alone the whole Lisbon Strategy of the EU.
If will also permit the implementation of the following
tasks of media policy:
• protection of public interest through a fuller achievement of all the objectives of broadcasting;
• timulation of the growth of domestic audiovisual content production;
• equalising access to a broad offering of programmes
and value-added services for those, who currently do
not have access to cable or satellite TV;
• technical, economic and market development for radio and television broadcasting in Poland;
• creating an even playing field for public service and
licensed broadcasters;
• ontributing to the implementation of objectives set out
in the "Informatisation Strategy for the Republic of
Poland – e-Poland";
• growth of the electronic industry.
Actually, this issue goes far beyond radio and television broadcasting. A Communication from the European
Commission "Electronic Communications: the Road to
the Knowledge Economy"98 specifies computers, CATV,
digital television, UMTS telephony and W-LAN networks
as access roads to the so-called information society services (teleinformation services), i.e. information services,
transaction and entertainment services, provided electronically, on a commercial basis. Thus, digital television will
become an inherent element of the technical and programming infrastructure of the information society and the
knowledge-based economy. To use the language of the
communication, it will be:
a platform providing the citizens with convenient and
interactive access to e-government, e-healthcare. It will
also contribute to the rapid popularisation and use of these services, to preventing social exclusion, promoting innovation, ensuring free choice and promoting competition.
In another document99, the European Commission
draws attention to the fact that access to some of the information society services, especially multimedia services, requires broadband access and that digital television (terrestrial, satellite or cable) is one of access platforms (apart from UMTS telephony) that make it possible.
As personal computers required to use broadband Internet access will remain in the predictable future less numerous than TV receivers (digital TV penetration in Great Britain reached over 50% of the households and is
greater than the number of Internet users), digital television may match computers in terms of significance as an
access platform for these services.
This shows that all conceptions dealing with the development of the information society, which focus on communications and the Internet, disregard an important –
and perhaps dominant, at some future time – platform,
i.e. digital television. Hence, the development of digital
television is crucial for the achievement of a much broader task: the introduction of the information society.
As demonstrated above, regulatory policy and practice tend to concentrate on providing receivers with access
to programming and other facilities. Digital technology
makes it easier for broadcasters and service providers to
offer them on conditional access terms, i.e. against additional fees and to use various "digital gateways" to prevent access by unauthorised persons, or to fight competitors by denying them access to the network or denying
their prospective receivers access to competitors' channels/services or information about them.
96
See "Wstêpne za³o¿enia strategii rozwoju naziemnej radiofonii i telewizji cyfrowej w Polsce" (Preliminary assumptions of the strategy
for introducing digital radio and television broadcasting in Poland). Warsaw: KRRiT, 2003; "Wariantowa analiza mo¿liwoœci wdra¿ania
sieci DVB-T w Polsce" (Analysis of possible scenarios for DVB-T network introduction in Poland).Warsaw: URTiP, 2003.
97
It is anticipated that 14 channels will be freed up in Great Britain following the introduction of DTT.
98
"Electronic Communications: the Road to the Knowledge Economy". Communication from the Commission to the Council, the European
Parliament, the Economic and Social Committee and the Committee of the Regions. COM(2003) 65 final Brussels, 11.2.2003.
99
"Commission Staff Working Document on barriers to widespread access to new services and applications of the information society
through open platforms in digital television and third generation mobile communications", Brussels, Commission of the European Communities, 2003.
54
Thus the expanding area of statutory and other (including self-regulation) regulation dealing precisely with the
overcoming of these barriers and ensuring fair competition. One could invoke here the regulations dealing with
electronic programme guides100, the protection of conditional access systems101, TV-on-demand systems.102 The
drafting of regulations related to the implementation of
the new directives on electronic communications is also
underway.103
The interoperability of digital television services and
of digital television receivers is another issue related to
the promotion of receivers' access to programming and
services.104
Service interoperability in telecommunications networks is assured by standardisation and co-operation
between operators, as well as through co-operation between telecommunications equipment vendors, especially of the vendors of terminal equipment. The aim of the
provisions (contained i.a. in the new directives of the
electronic communications package) dealing with the interoperability of television services is to make sure that
the whole chain of arrangements between content providers, distributors and the manufactures of consumer equipment will enable the users to fully use the functionalities of transmission and services associated with digital
television, irrespective of the type of transmission infrastructure. This is to be achieved through adequately flexible regulation, which will take account of future technological developments and promote the development of
digital television and competition in the market of digital
television services.
The first measure provided for in the package is the
promotion by the Member States of the voluntary use
of an open standard of application programming interfaces (API) by television service providers supplying services intended for public distribution within the
Community, in the framework of interactive television
platforms. The API is an element of the Multimedia
Home Platform (MHP) standard developed by Digital
Video Broadcasting (DVB). MHP standards cover various functionalities used in digital television, including
interactive television functionalities. ETSI has adopted
MHP standards specified in a list published by the
Commission.
100
The second group of regulatory measures calls upon
the Member States to support the suppliers of advanced
digital TV receivers (i.e. set-top boxes) for interactive digital platforms in their efforts to provide such equipment
with open application programming interfaces (API).
The third group mandates the Member States to promote the provision of all necessary information to the
providers of interactive television services by undertakings holding ownership rights to application programming interfaces (API). The scope of information provided
should cover everything that is required to provide the
user with the full functionality of services based on application programming interfaces (e.g. design tools). The
Directive clearly provides for appropriate remuneration to
be paid for the provision of such information. The measure is directed at the fullest possible use of the advantages of the open application programming interface (API)
by service providers.
The electronic communications package also mandates the EU Member States to ensure the interoperability
of consumer equipment intended for digital TV reception.
Only the harmonisation of standards can ensure the full
interoperability of equipment intended for the reception
of televisions services, which are often provided across
borders. These standards should be set up by the EU,
as appropriate in view of technological and market developments.
The ultimate objective of all these measures is to give
the consumers the opportunity to fully use the advantages of digital television services thanks to digital receivers. Essentially, it comes down to making sure that
network operators, service providers or equipment manufactures will not limit the functionalities of the open
application programming interface. Equipment falling within the scope of these requirements should be first of all
adapted to descrambling television signals using the
common European scrambling algorithm administered
by a European standards organisation – currently, the
ETSI.
The second type of requirements contained in the
electronic communications package deal with the interoperability of analogue and digital television receivers,
enabling their interworking with other equipment.
See "ITC Code of Conduct on Electronic Programme Guides". London: ITC, June 1997.
101
See "Directive 98/84/EC of the European Parliament and of the Council on the legal protection of services based on, or consisting of,
conditional access; European Convention on the Legal Protection of Services Based on, or Consisting of Conditional Access. Strasbourg, 24.I.2001; "On The Legal Protection Of Electronic Pay Services". Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the implementation of Directive 98/84/EC of the European Parliament and of
the Council of 20 November 1998 on the legal protection of services based on, and consisting of, conditional access. COM(2003) 198
final. Commission Of The European Communities, Brussels, 24.04.2003.
102
See "The Video on Demand Association Code of Practice". London (information on editor not available).
103
See "The Advanced Television Services Regulations 2003. Draft regulations. A Consultation Document". London: Department of Trade and Industry. February 2003.
104
See Stanis³aw Pi¹tek, "Prawo telekomunikacyjne Wspólnoty Europejskiej" (Telecommunications Law of the European Community).
Warsaw: Publishing House C.H.Beck, 2003; "Study on Interoperability, Service Diversity and Business Models in Digital Broadcasting
Markets." Oxford: Oxford Economic Research Associates, 2003.
55
5.4.1 Introducing Digital Radio Broadcasting
General Trends
The European Conference of Posts and Telecommunications (CEPT) in Wiesbaden in 1995 adopted EUREKA 147 (described in European standard ETS 300 401)
as the binding system for digital terrestrial radio broadcasting (DAB-T).
The high cost of DAB receivers proved to be a barrier
to the development of DAB, but nonetheless the advances of digital radio in the DAB technology are already
quite considerable in such countries as Canada, Germany, France, Italy, Portugal, Spain, Nordic countries and
Great Britain.105 More than 585 DAB programmes are
currently broadcast around the world, reaching more than
300 million listeners. There are more than 30 models of
DAB receivers available.
Satellite Digital Radio (SDR) is also making progress. In
the USA there are two companies offering SDR. They cover nearly all of North America: XM (3 geostationary satellites and about 1,000 terrestrial transmitters) is broadcasting
some 60-70 music stations and 30-40 news, sports and
other stations. In April 2002 XM had some 100,000 subscribers. The Sirus system (3 geostationary satellites and 91
terrestrial transmitters) has a similar offering.
WorldSpace is another satellite broadcaster (three satellites: Afristar covering Africa and Southern and Middle
Europe and Asiastar covering Asia plus Ameristar covering South America). Theoretically, WorldSpace stations
could be received by 5.2 billion listeners, but by the year
2002 the company had sold only 150,000 receivers).
Two satellite radio projects for Europe are currently
under development: Global Radio and a project jointly
prepared by WorldSpace and Alcatel.
Another project, Digital Radio Mondiale (DRM) is currently developed by a global consortium of broadcasters
and other organisations.
Terrestrial digital radio broadcasting in Poland has not
even entered the experimental stage. In April 1997 Polskie Radio S.A. launched experimental radio transmission
in the DAB system from one transmitter located in Warsaw.
This experimental transmission lasted for about two years
and was used to make various measurements: coverage,
signal quality and the impact of digital transmission on the
quality of analogue reception. It was discontinued due to
a major failure of the transmitter. Pilot, 24/24 hours transmission was restarted in September 2003.
Poland needs widely affordable, digital terrestrial broadcasting, allowing reception on the move and meeting
the future requirements of the local communities and broadcasters. However, Poland is only at the very beginning
of that road.
The DAB networks prepared for Poland can be practically used in only one way, namely:
• Equipping the national primary network made up of
18 frequency blocks, with one central multiplex and
using it to broadcast national channels, both public
service and licensed.
• Allocating the multi-frequency secondary network
(49 frequency blocks) to the transmission of public
service radio regional stations and for licensed local and regional stations.
• Allocating the multi-frequency tertiary network (16 frequency blocks) to the transmission of licensed local
and regional stations.
In this case, there will be no way to have separate multiplexes for public service and licensed broadcasters. Moreover, the current number of national programmes (seven) exceeds the number of positions on a multiplex (six).
It is necessary to elaborate a plan for regional network
programming: more precise delineation between the regions,
definition of the role for regional and local programmes.
Situation in Poland
So far, only digital satellite radio is available in Poland.
The existing digital satellite platforms are offering radio
broadcasters very attractive terms for the inclusion of their
stations in television packages. These stations can be
individually received using digital TV set-top boxes and
also, more and more frequently, in cable networks, where channels transmitted from satellites in the digital technology reach viewers and listeners through individual
satellite set-top boxes or analogue cable networks.
Cable networks delivering programming in the digital
version have not gone beyond the experimental stages
in Poland.
105
106
It is also necessary to take the following measures as
soon as possible:
1. Carry out a new analysis of the possible utilisation of
the frequency blocks reserved for Poland.106 If the analysis shows that some cannot be used, they should be
exchanged for other blocks and the necessary international arrangements must be made.
2. It is necessary to make the final decisions on the allocation of the reserved primary and secondary frequency blocks, as well as on the number and coverage of
the planned multiplexes. Network plans must be drawn
up for the respective frequency blocks, and the necessary international arrangements should be made.
Josef Trappel, Caroline Uhrmann, "Terrestrial and Satellite Digital Radio – Complementarity and Competition". Basel, Prognos AG., 2002.
See "Wstêpne za³o¿enia strategii rozwoju naziemnej radiofonii i telewizji cyfrowej w Polsce". (Preliminary assumptions of the strategy
for introducing digital radio and television broadcasting in Poland) Warsaw: KRRiT, 2003.
56
Source: Alexander S³u¿ycki (EBU) "DTT in Europe. Market Overview and Assessment". DTT Roundtable, Naples, October 2003.
3. An analysis should be made to determine the target
demand for national and local multiplexes. This analysis should also show which areas will be served by
local or regional multiplexes.
4. Identification of the frequency blocks required to implement point 3 and making of the necessary international arrangements. Network plans should be drawn
up for the respective frequency blocks and the necessary international arrangements should be made.
General Trends
a long-term and well-prepared endeavour. The same
experiences showed that: (1) strategies aimed at launching
digital television through pay channels had failed, while
offerings based on FTA channels109 proved successful; (2)
motivation and incentives must be offered to broadcasters,
who are to finance the digital switchover and retain analogue transmission during the transitional period ("simulcasting"); (3) there is a need for broad agreements between
regulatory authorities (including frequency management),
broadcasters, providers of value added services, transmission networks and the manufacturers and distributors of
consumer equipment (especially set-top boxes) allowing
the co-ordination of the activities of all the interested parties in accordance with a strict schedule.110
Progress in the introduction of digital terrestrial television in Western Europe has been illustrated in Table 23.
Various European countries are currently using two
main methods for the analogue to digital switchover:
As Western experiences show, launching digital terrestrial radio and television broadcasting108 should be
• Simultaneous introduction in the whole national territory, with parallel analogue and digital transmission
5.4.2 Introducing Digital Television
107
It is anticipated that Greece may start by developing CATV or DTH (Direct to Home direct satellite TV).
108
See "The Development of the Market for Digital Television In the European Union" (1999). Communication from the Commission to the
European Parliament, the Council of Ministers, the Economic and Social Committee and the Committee of the Regions. COM (1999) 540.
109
See "A Report on Progress towards Digital Switchover". Final. London: ITC/BBC, April 2003. Nonetheless, the strategy for the
switchover to digital TV in individual countries depends on a number of factors. In France, the socialist government wanted digital
terrestrial television to serve the 70% of the population, who do not use CATV. These viewers were to be given a programme
offering considerably enriched in comparison to what is available to those, who for financial reasons, cannot use CATV or satellite
TV. The right-wing government changed these plans and decided that since the success of digital terrestrial television will to a very
large extent depend on private-sector initiative, then the investors should be allowed to make money. Hence, half of digital channels are pay channels. The socialist government planned the development of public service television and was prepared to spend
100 million Euro on its new digital channels. The right-wing government reneged on this promise and ordered the suspension of
programming activities, which had already begun.
Table 23 DTT Progress in Western Europe
110
See "Launch Scenario 2000. A New World of Radio and Television. Introduction of digital broadcasting in Germany. Status report and
recommendations by the "Digital Broadcasting" Initiative on the digitisation of radio and television taking account of the cable, satellite and
terrestrial transmission paths". Bonn: Federal Ministry of Economics and Technology. Documentation No. 481, (no editorial data).
57
(simulcasting) maintained for a certain time. Analogue transmission can be discontinued once there are
enough digital receivers in the market and there is
a rich programming offering distributed in the digital
technology.111
• "Insular" method, consisting in the switchover from analogue to digital in selected areas until, eventually, the
whole country is covered.
Plans implemented and formulated in various countries show that the latter method is more popular, both
with regard to the gradual introduction of digital technology from the very beginning (e.g. in Germany112,
Switzerland and the Netherlands) and the gradual, final digital transition (turning off analogue transmission), which e.g. Great Britain intends to carry out in
the 2006-2010 period (it also plans the gradual switch
off of analogue transmission in individual regions by
the individual broadcasters, starting with BBC2, then
commercial broadcasters and ending the process with
BBC1).
Various countries use different incentives for the broadcasters, including inter alia : promises of additional
(so-called "bonus") channels; establishment of special
funds for subsidising additional costs incurred by the broadcasters and other operators)113; increasing licence fees
(like in the UK) to pay for the additional costs incurred by
public service broadcasters114; automatic licence renewal
for broadcasters switching to digital; tax solutions and
others (e.g. fees for frequency use conditional on the frequency band used; tax breaks, including lower VAT on
digital transmission equipment, financial assistance for
producers making content to be used in digital programmes, etc.)115.
Another way is to offer incentives to digital television
viewers (subsidising set-top box purchases, or tax breaks for those, who had bought them).
There is no doubt that such incentives will be necessary in Poland, if digital is to replace analogue.
Situation in Poland
Currently four channels in Poland are experimenting
with DVB-T transmission: TVP1, TVP2, TVN and POLSAT.
The experiment is conducted by Poland's biggest broadcasting network operator – TP Emitel Sp. z o.o., broadcasting from the Radio and Television Broadcasting Centre
in the Palace of Science and Culture in Warsaw.
In 2001 the KRRiT prepared a document entitled "The
Strategy for the Development of Digital Terrestrial Radio and
Television Broadcasting in Poland" and transmitted it to the
Prime Minister, Speaker of the Parliament, Speaker of the
Senate and leaders of parliamentary clubs. In 2003 the
KRRiT produced an updated version of the same document
entitled "Preliminary Assumptions of the Strategy for Introducing Digital Radio and Television Broadcasting in Poland"
and also transmitted it to the Speaker of the Parliament.
The assumptions that KRRiT transmitted to the President of the Office of Telecommunications and Post Regulation in February 2002 remain fully valid:
• digital terrestrial television networks will be planned
for channels 21-60 and partly 61-69, as they become
available for radio transmission;
• for the stationary reception of television in the normal
resolution;
• two plans must be made for the utilisation of frequencies used in TV transmission:
1. initial plan, connected with the first stage of the
launch of digital networks, assuming parallel transmission in analogue and digital,
2. target plan, related to the second stage of the launch
of digital networks, assuming only digital transmission (i.e. after the end of "simulcasting").
In 2003 the Office of Telecommunications and Post
Regulations developed the "Analysis of possible scenarios for DVB-T network introduction in Poland", in which
it presented two scenarios:
111
The British government has laid down the following criteria determining when analogue transmitters may be turned off (1) accessibility:
when main free-to-air public service broadcast channels will be available in digital form to all viewers, who can now receive analogue TV;
(2) availability: 95% of households must have digital receivers; (3) affordability: when low-income groups will be able to afford digital
technology.
112
This method is used in Germany. On February 13, 2002 ARD, ORB, SFB, ZDF (public service broadcasters) and PRO Sieben, SAT
1, RTL (commercial stations) and MAAB (Medienanstalt Berlin-Brandenburg) signed an agreement on the methods for introducing digital
terrestrial television in Berlin. This agreement has been concluded on the basis of the recommendations of the Digital Television and
Radio Initiative (Iniziative Digitaler Rundfunk) of 24th August, 1998. Analogue transmission is expected to be switched off in August 2003.
The switchover period in Berlin took one year. The representatives of T-Systems (part of Deutsche Telecom dealing with telecommunications networks) are proposing to shorten this period in the future to 6 months.
113
E.g. in Germany, the digital switchover of commercial broadcasters is co-financed by the media offices (Landesmedienanstalten) of the federal states (they receive 2% of licence fee revenues for their purposes). In Berlin and Brandenburg the office assigned 140 million Euro for the digital switchover and refunds 1/3 of commercial broadcasters’ switchover costs over a five-year
period.
114
Methods used to support public service broadcasters switching to digital technology have been presented in a study by Rainer Schnepfleitner "The use of funds collected for Public Service Broadcasting". Vienna: RTR-GmbH, 2002.
115
See "Digital Switchover in Broadcasting". A BIPE study for the European Commission, Directorate General Information Society. Executive Summary, April 12, 2002.
58
• Scenario I: parallel broadcasting, in line with the
assumptions presented above,
• Scenario II: accelerated switchover.
Scenario I consists in the parallel use of the same frequency bands to broadcast in both analogue and digital
for a long period, e.g. 10 years. In the current situation,
this would permit the launch of two central, national multiplexes and two regional multiplexes for supra-regional
networks. Scenario II assumes the adoption of the "insular" method, consisting in supplementing the networks
used in scenario I with networks created in the digital
switchover of high-power analogue UHF transmitters used
by public service television in the successive regions of
the country, until full national coverage is achieved.
Both scenarios have their pros and cons. Scenario I
assumes a gradual process, which will be less costly, but
its weakness lies in its limited programme offering and
the extra cost of simulcast, as well as the need to maintain positions on the multiplexes for the already existing
broadcasters. If this scenario is chosen, the transitional
period in the case of digital terrestrial radio broadcasting
will imply parallel transmission in analogue and digital,
i.e. simulcasting. It will be necessary for the rollout of
transmission and distribution networks and for making
digital programmes and services available to the receivers, for market transformation and for securing funding.
Most European countries assume that parallel broadcasting should continue for about 10 years, as this is the
period, which has been recognised as necessary for the
required transformations to take place.
However, this scenario does not offer the receivers or
broadcasters any special incentives to switch to digital.
Some receivers, who currently have access to all Polish
channels, will not get the benefit of a broader programme offering. From the broadcasters' perspective, it only
implies higher costs involved in parallel broadcasting.
Actually, extending their coverage to areas, which currently cannot receive their analogue channels, is the only
potential incentive for the broadcasters.
In other words, scenario I involves the risk of repeating
the Spanish scenario116: no interest in DTT from broadcasters or viewers, let alone the advertisers.
Scenario II might seem very appealing: a greater number of multiplexes, a broad programme offering, value-ad-
ded services, more rapid development of the information
society. Its advantage is that network rollout costs will be
spread out over a longer period and operating costs will be
lower; there will be no simulcasting and there will be more
multiplexes, because channels thus far used for analogue,
will be used for digital broadcasting. Those who observe
the process of digital switchover agree that only an offering
involving no less than 20-30 channels can be sufficiently
interesting from the perspective of the viewers.117
Moreover, as the authors of the present study are prepared to admit, it is a risky scenario, calling for a lot of
commitment on the part of all the participants of the process. Another factor involved in this method is the need
to quickly equip all viewers with set-top boxes or digital
receivers.
According to available information118, a group of experts established by the Minister of Infrastructure, intends
to propose the adoption of the accelerated switchover,
based on the following assumptions:
• launching DTT in the form of two multiplexes using the
insular method in the territory of a single voivodship;
• launching a pilot network by the end of 2004;
• a period of simulcasting lasting 6-12 months;
• converting two national networks to digital and switching off analogue transmission;
• repeating the same procedure in other voivodships.
The Polish radio and television market does not seem
to be ready for a quick switchover to digital technology,
that the group of experts formed by the Minister of Infrastructure intends to propose. A successful launch of the
first stage of the switchover already in 2004 appears
hardly realistic. On the other hand, a scenario involving
a long period of simulcasting, with a limited digital offering does not seem to promise a successful switchover,
attractive to both broadcasters and receivers.
The pace of the gradual development of technical capabilities and of the programme and services market, of
the replacement of analogue technology in the media, will
depend on the strategy adopted by the government, which
in turn will have to be based on a careful market analysis
and an evaluation of the costs and benefits of switching
over to digital. It appears that there is a need to quickly
116
In mid 2003 the Spanish government announced that efforts aimed at launching DTT failed. This failure resulted from the poor availability of
set-top boxes and broadcasters’ unwillingness to invest into the creation of new, digital programmes. Instead, they are only broadcasting their
existing programmes (already available in analogue technology), which offers viewers no incentive to switch to digital. This in turn results in
advertisers’ lack of interest in digital programmes. Spain is currently considering imitating the British strategy, i.e. using free-to-air channels. The
public service broadcaster RTVE has been called upon to take on the burden of promoting DTT and launching new programmes to attract
viewers. RTVE is to receive additional funding for these purposes. The government also hopes that some interactive facilities will attract the
viewers. If these measures fail, the government will consider enabling some other (probably foreign) audiovisual group to invest in digital
terrestrial television in Spain.
117
It is believed in Great Britain, that the motto "30 channels, one-off fee, no contracts, no subscription" carried a forceful marketing
message for Freeview DTT.
118
See Krystyna Ros³an-Kuhn, "Office of Telecommunications and Post Regulation", "Launching of the Digital Terrestrial Television DVBT in Poland". EICTA Workshop, Brussels, 24 February 2004.
59
develop a strategy for introducing digital technology, as an
element of a general growth and development strategy of
the audiovisual sector, providing for a transitional period
of several years, before its gradual implementation.
07.
CONCLUSION 15
08.
We need to look for a strategy for the launch of di−
gital terrestrial radio and television, which would offer
a chance to carefully prepare accelerated switchover,
which should be launched in several years' time. Ana−
lyses carried out in other countries show that funds
required to finance DTT can be obtained only after
switching off analogue transmission and that a long
period of simulcasting is an additional and serious fi−
nancial burden for all broadcasters and stakeholders.
Most European countries have already developed documents describing their general digital media development
strategies, in particular the strategies for the development
of digital terrestrial radio and television broadcasting. They
have been developed by groups of experts specifically convened for these purposes, representing the fields of the
media, economy, culture, education, organisation and management, techniques and technology, trade and services.
These documents were then transformed into government
or national programmes, into acts guiding national policy in
the area of the digital media for years to come.
In the Nordic countries for example, the establishment of a
national operator in charge of the development of terrestrial
technical infrastructure, was an element of such a policy.
Poland should also begin with a careful elaboration of
such a strategy.
The Communication of the European Commission of
September 2003 on the transition from analogue to digital broadcasting119 provides the following list of issues to
be covered by Member States' switchover plans (plans
to be submitted to the European Commission):
01. strategic plan for digital switchover;
02. policy objectives for digital broadcasting: social, cultural, political, economic and other objectives implemented through digital radio and television;
03. spectrum management policy choices and scenarios,
before and after switch-off: services, coverage, assignees, conditions of use, frequency reservations;
04. implementation choices to best fulfil policy objectives,
types of networks, modalities of service, role of authorities, main players, licensing, etc;
05. tentative calendar for achieving objectives, including
target dates for switch-off and status;
06. stakeholders' involvement in switchover strategy design and implementation of the conversion, mecha-
09.
10.
11.
nisms of consultation, policy development; mechanisms for consulting and processing feedback, players
involved, commitments;
criteria for achievement of policy objectives, mechanism/ indicators for monitoring and retro-feeding into
or reviewing strategy;
market assessment (e.g. cost/ benefits analysis) justifying certain modalities of public intervention;
policy obligations and incentives (political, informational, regulatory, financial, other);
implementation modalities; targeted value-chain segments (transmission, content, reception, consumption, other);
areas for possible EU co-ordinated action, now or in
future.
Only when all the elements of such a plan are ready,
can one start planning the conversion process itself.
Launching conversion without such preparations would
seem irresponsible.
An analysis of the conversion process120 commissioned
by the European Commission contains a number of recommendations on the design and implementation of the process:
Overall Switchover Strategy:
01. preparation of a National Switchover roadmap and
action plan;
02. financial instruments supporting the implementation
of the plan;
03. monitoring digital broadcasting market status and
development;
04. defining Post-ATO policies and scenarios;
05. linking broadband policy and DTV policy under information society objectives.
Action directed at Market Players:
06. digital broadcasters and broadband access providers
must be given greater economic freedom;
07. taxing spectrum to increase spectrum efficiency;
08. frequency users should demonstrate their utility and
economic efficiency, which should ensure the longterm optimisation of frequency management;
09. standards for reception equipment and additional facilities to be promoted proportionately to the objectives pursued.
Action directed at Consumers:
10. launching consumer surveys;
11. providing consumers with broad information about DTT;
12. encouraging consumer switchover to digital by reducing their switchover costs;
119
"Communication from the Commission on the transition from analogue to digital broadcasting (from digital "switchover" to analogue
"switch-off" )". COM(2003) 541 final. Commission of the European Communities, Brussels, 17.9.2003.
120
60
"Digital Switchover in Broadcasting". A BIPE study for the European Commission, Directorate General Information Society. April 12, 2002.
13. implementing ex-post, targeted measures to deal with
the risk of digital divides;
14. ensuring customer access to various access platforms to programming and services to stimulated
competition.
Preparing the National Switchover roadmap and the
relevant regulations will require a cost/benefit analysis on
the one hand and, on the other, a precise definition of
the roles of various DTT stakeholders and their mutual
relationships.
Among other things, the costs involve: the cost of digitisation of reception and receivers, the costs of the digitisation of the infrastructure of radio and television broadcasting, harmful interference in CATV networks generated by DTT and vice versa, the risk of distorting
competition, etc. Among the variables taken in consideration in these calculations, one must include the number of households receiving analogues signals at the
launch of the switchover, share of households using terrestrial, cable and satellite television, average number of
TV sets per household121, rate of spontaneous switchover to digital, switchover costs per household, set-top box
prices at launch and their anticipated gradual decline,
cost of new content production, annual costs of analogue
terrestrial transmission as compared with digital transmission, frequency bands freed up thanks to switchover
and their estimated value, interest rate.
Potential benefits include: positive effects for the market in the form of new business processes launched and
increase in number of market undertakings, increased
competition, progress in building the information society, lowering transmission costs, freeing up frequencies
and opportunity to assign them to other applications,
averting digital divides, ensuring universal access to
digital technology.
The fundamental decisions affecting market players involved in digital conversion relate to the tasks implemented
by broadcasters, multiplex operators, networks, conditional
access systems and electronic programme guides.
Experiences from various countries show, that the involvement of the main terrestrial television broadcasters
(both PSB and commercial) is one of the necessary conditions for a successful launch of digital terrestrial radio
and television. This leads to emphasis being placed on
broadcasters in the system of digital terrestrial radio and
television122; in France, it is the broadcasters, who had
obtained digital licences, who submit proposals to CSA,
as to who should operate their multiplexes. In Great Britain, multiplex operators are treated as independent un-
dertakings, exerting an active influence on the offering
available on individual multiplexes.
These different approaches lead to different models of
multiplex operators and, therefore, to different relationships between multiplex operators and broadcasters (Table 24).
An active operator assures the technical operation of
the multiplex and controls its programming content, filling
it with his own programmes, or programmes provided for
distribution by other broadcasters, according to his own
views on the content of the multiplex. He can optimally
use the technical opportunities by using statistical multiplexing.
An intermediate operator assures the technical operation of the multiplex, partly fills it with programmes designated by the audiovisual regulator and in the remaining
part – with programmes provided to him by other broadcasters, according to his views on the content of the
Table 24. Different Models of Multiplex Operators
Model
Description
Active
The operator assures the technical
operation of the multiplex and
controls its programming content,
filling it with his own programmes, or
programmes provided for distribution
by other broadcasters, according to
his own views on the content of the
multiplex. He can optimally use the
technical opportunities by using
statistical multiplexing.
Intermediate
operation of the multiplex, partly fills
it with programmes designated by
the audiovisual regulator and in the
remaining part - with programmes
provided to him by other broadcasters, according to his views on the
content of the multiplex. He can
optimally use the technical opportunities by using statistical multiplexing.
Passive
operation of the multiplex and fills it
only with programming designated
by the audiovisual operator.
121
In Poland 70% of households have one TV-set, 20% – two and 3% – three or more (OBOP); 55% of households have VCRs (CBOS).
All this equipment will ultimately have to be replaced.
122
In Italy the broadcasters were given the leading role in the process, additionally pushing them to invest in DTT with threats of further
anti-concentration measures, unless they contribute to increasing market pluralism by launching digital terrestrial radio and television.
Hence, in Italy, broadcasters are also multiplex operators. On the other hand, to prevent them from monopolising the system, broadcasters holding more than one TV licence, have been mandated to allocate 40% of multiplex capacity during the experimental period to
independent broadcasters/programme producers, who do not have their own transmission infrastructure. After the experimental period
these broadcasters will have access to multiplexes on equal and non-discriminatory market terms and conditions.
61
multiplex. He can optimally use the technical opportunities by using statistical multiplexing.
A passive operator assures the technical operation of
the multiplex and fills it only with programming designated by the audiovisual operator.
Failure of the regulations to clearly set out the tasks of the
various undertakings and their relations or of their potential
settlements, may lead to problems or even failure in the
launch of digital terrestrial radio and television (e.g. France
experienced such problems, which extended the preparatory period, until the regulations were supplemented).
The same applies to other undertakings, including conditional access systems operators or electronic programme guides (EPG). If their role is not properly defined, there may be problems with the proper regulation of their
activities or even a situation, where they will come within
the competence of different regulators, pursuing different
objectives and applying different principles. For example,
treating a multiplex operator only as a telecommunications
operator, supervised by the telecommunications regulator, stands in contradiction with the fact, that its activities
are central to the shape of the programme offering. The
same applies to EPG operators. If, e.g. a broadcaster supervised by an audiovisual regulator, should additionally
launch an EPG, thus formally becoming a telecommunications undertaking regulated by the telecommunications
regulatory authority, then with regard to the layout of the
EPG, it would still be supervised by the audiovisual regulator. Likewise, the activities of a conditional access system operator (that a broadcaster may just as well be) has
clear programme implications and influence on the programme offering available to receivers. Defining a CAS
operator as a telecommunications undertaking, with only
the telecommunications law being applicable to its activities, will make it impossible to address these areas of its
activities or will require the participation of the audiovisual
regulator (which would be unlawful) in solving legal and
regulatory dilemmas related to these activities.
Such criss-crossing of competences due to errors made
when drafting regulations and implementing the framework could have an adverse impact on the practical operation of market undertakings and law enforcement.
CONCLUSION 16
The legal framework drawn up for digital terrestrial
radio and broadcasting should facilitate their launch and
the operation of the market players concerned, by cre−
ating a legal certainty of their operations and preven−
ting the overlapping and criss−crossing of regulatory
and administrative authority. Thus, given the market
and technological status quo, as well as progressing
The launch strategy for digital terrestrial radio and broadcasting needs to answer a number of practical questions and dilemmas, which is why it must be formulated in a process of ongoing consultations with all the stakeholders.
Frequency management requires that a frequency allocation plan be drawn up for the use of frequencies for digital broadcasting123, possibly reserving some frequencies
for public service broadcasters (in most countries the standard is to reserve frequencies and at least one multiplex
for public service broadcasters). Frequencies can be reserved for broadcasters (as in France, where all broadcasters, who are to use the same multiplex, receive
a parallel assignment of the same frequency), or for multiplex operators, preferably in a competition (more frequently used in the case of frequencies for radio and TV broadcasting), using – if appropriate – antimonopoly restrictions.124 As said before, there is a need to precisely define
the respective roles of broadcasters, multiplex operators
and network operators, and – in the event pay-TV is allowed – also of CAS operators. If the active operator model
was chosen, a decision must be made, whether the operator will be free to compose the programme offering, or
will have must carry obligations or obligations on carrying
programmes of a certain type (e.g. news, for children, for
other independent broadcasters).
Moreover, an authority or structure responsible for coordinating the switchover and analogue switch-off must
be designated. Additionally, the application of the frequencies thus freed up needs to be decided (will they still
be used for broadcasting, which would call for designing
a licensing policy, or will they be allocated to telecommunications purposes).
As far as the potential assistance of the Government
in the switchover is concerned, it is possible (subject to
EU regulations on public aid for market undertakings) to
use various forms of aid. For example, the direct financing or co-financing of network rollout; direct or indirect
123
In Italy, where free frequencies are hard to come by, broadcasters were left to their own devices as far as obtaining free frequencies
was concerned. They had to get them in the free market, mostly from local broadcasters. In Germany (Berlin and Brandenburg), the
frequencies used by the broadcasters had to be changed at least twice, first to free up two frequencies for the experimental DTT launch
(to demonstrate that the system worked) and then to assign target frequencies to the broadcasters. Finland decided not to award
licences for analogue broadcasting after 1 May 2004.
124
62
convergence and the operation of these undertakings
on various markets, using different technologies, we
need to set out the scope of regulation for the Telecom−
munications Law and for the Broadcasting Act, as well
as the competences of regulatory authorities in a man−
ner serving the achievement of these objectives. This
is why solutions proposed in the Annex to the present
paper, entitled: "Proposed Solutions for the Broadca−
sting Act and The Telecommunications Law in Connec−
tion with the EU Electronic Communications Package
2003 with Justification" are worth considering.
In Italy no single broadcaster can obtain an authorisation to broadcast more than 29% of nation-wide digital TV programmes.
financial aid for public broadcasters (e.g. in the form of
higher licence fees; lower fees for the use of frequencies;
approval to sell part of assets to finance investment projects or content production, etc.); direct or indirect aid for
private broadcasters to finance switchover costs; allocating funds to specific digital channels to make sure they
are included in the programme offering125; subsidising
set-top box purchases by consumers126 or granting tax
breaks for such purchases.
8 regions of the country, which is to be accompanied by
the simulcasting of news programmes of the existing 13
regional channels).
As concerns the promotion of appropriate technical
standards, the Government may prescribe the use of specific marking corresponding to desired standards on equipment available on the market, to signal it to the customers; lay down requirements relating to the API to be
used, on the installation of digital tuners in receivers, etc.
Ultimately, the choice of methods will depend on the
spontaneous development of digital terrestrial radio and
television to date and on the emergence of different standards on the market. One could hardly expect Government intervention promoting a selected standard, where
major outlays would be required on the part of broadcasters and consumers in order to switch over to equipment
compatible with that standard. In such cases, an evolutionary process tends to be the typical choice.
Similar decisions may apply to commercial broadcasters.
The Government should also update copyright regulations, adapting them to the requirements of the digital
media, also look after the disabled, elderly and minorities (including language minorities).
It is generally recognised that another important measure that can be taken by the Government with this regard is to set a specific and not too distant date of the
final switchover and analogue switch-off, which provides
companies with incentives to invest in themselves (RAI
earmarked EUR 20 million for network development and
3.7 million for new digital content production) or in households, to guarantee broadcasting and reception after
that date (as the example of Berlin-Brandenburg shows,
this boosts demand for digital TV sets).
As goes for public service broadcasters, the fundamental decisions relate to guarantees that they will be
assigned one or more multiplexes (which is usually the
case) and to the way , in which they will be used, e.g.
through the requirement that they have a specific coverage (Italy requires that RAI multiplexes cover 50% of the
country's surface area right at the start and 70% a year
later; Great Britain requires main public service and commercial broadcasters to have national coverage); to
launch specific types of channels or implement programming-structural solutions (e.g. in France, France Television is required to launch digital regional programmes in
125
Other decisions may deal with the potential approval
for the broadcasting of pay-TV programmes by public
service broadcasters, terms and conditions for the use of
the multiplexes, broadcasters' leeway as far as their programme offer is concerned, etc.
CONCLUSION 17
1. Any widespread introduction of digital radio and te−
levision broadcasting will be of strategic importan−
ce for the prospects of the development of the
information society in Poland. Apart from any sta−
tutory solutions, it should become an element of
Poland's economic development plans and the
objective of a special government programme de−
aling precisely with that.
2. Any statutory solutions in this field should ensu−
re the full transposition of the new EU directives
on electronic communications, meaning that they
should include telecommunications issues and
supplement the Polish legal order with regulations
dealing with various elements of electronic me−
dia, including EPGs, APIs, conditional access and
suchlike.
3. Statutory solutions dealing with digital radio and te−
levision broadcasting should regulate all the abo−
ve issues related to this process or mandate the
relevant government authorities to implement
plans and measures related thereto.
6. NEW AREAS AND FORMS OF MEDIA REGULA−
TION
6.1. "Vertical" and "Horizontal" Infrastructure and
Electronic Media Content Regulation
General Trends
The current "vertical" model of telecommunications and
electronic media regulation creates separate, comprehensive sets of legal regulations dealing separately with
each of these sectors (e.g. telecommunications and radio and television broadcasting). This model is increasingly out of touch with reality, as convergence is blurring
the earlier boundaries between them.
It is postulated in Finland that programmes for children be commissioned from independent producers.
126
Italy for example, allocated 150 million Euro to subsidising set-top box purchases by households. A family may get a grant of 150 Euro,
provided it buys an interactive set-top box (base model is not subsidised) and demonstrate that they pay their radio and TV licence.
63
Hence, attempts at creating "horizontal" regulation, dealing separately with the entire infrastructure of electronic
communications (both telecommunications and radio and
television broadcasting) on the one hand and with the content transmitted over that infrastructure, on the other. The
relevant regulations are supposed to be technologically
neutral, i.e. independent from communications technologies
used and "future-proof", i.e. never become outdated, irrespective of any future evolution in the electronic media.
A detailed position on the implementation of the above directives has been annexed to the present study.
6.1.1. "Horizontal" Regulation of Electronic
Communications Infrastructure
The European Union has achieved the objective of creating such "horizontal" regulation for technical infrastructure by inter alia adopting the so-called package of electronic communications directives in 2002. These were:
• Directive of the European Parliament and the Council
No 2002/21/EC of 7th March 2002 on a common regulatory framework for electronic communications networks and services (so-called Framework Directive),
No 2002/20/EC of 7th March 2002 on the authorisation of electronic networks and services (so-called Authorisation Directive),
No 2002/19/EC of 7th March 2002 on access to, and
interconnection of electronic communications networks and associated facilities (so-called Access
& Interconnection Directive),
No 2002/58/EC of 12th July 2002 concerning the processing of personal data and the protection of privacy
in the electronic communications sector,
• Commission Directive of 16th September 2002 on
competition (it adapts competition law in the electronic communications sector and bans exclusive and
special rights in electronic communications),
• Decision of the European Parliament and the Council
of 24th July 2002 on the frequency spectrum (designed to harmonise the assignments of radio and television frequencies for services, in particular, paneuropean services).
Commission Recommendation on relevant markets for
products and services, electronic communications, stipulated in Article 15.1 of the Framework Directive, published on
February 11, 2003 and the Guidelines for market analysis
and assessment of significant market power stipulated in
Article 15.2 of the Framework Directive, published on July
11, 2002 allow the practical definition of relevant markets,
127
which provides the basis for new regulatory measures introduced by the new European regulatory framework.
The introduction of this package was aimed at the simplification and liberalisation of electronic networks and
services regulation in order to accelerate the development
of the information society through the stimulation of competition between market undertakings. The new regulatory package reaches beyond traditional telecommunications to embrace all of electronic communications, i.e.
electronic communications services and networks, including services, and radio and television networks. The new
directives do not address content issues coming within the
scope of the "Television without Frontiers" Directive.
At the Community level, the Commission will co-ordinate the implementation of the new European regulatory
framework through four working groups:
1. The Communications Committee established on the
basis of the Framework Directive, intended to assist the
Commission in the enforcement of its executive powers in
the electronic communications sector. The Communications
Committee was formed by merging the ONP Committee
(open network provision) and the Licensing Committee.
2. The European Regulators Group was established in
July 2002. It is made up of representatives of national
regulatory authorities and of the Commission and its
role will consist in:
– assuring contacts between the Commission and national regulatory authorities ;
– encouraging co-operation on the part of national regulatory authorities;
– harmonising the enforcement of the new Community regulatory framework;
– advising the Commission on issues concerning the
implementation of the regulatory framework.
3. The Radio Spectrum Committee established on 7th
March 2002 is made up of representatives of the Member States and is intended to assist the Commission in
defining, developing and implementing Community policy with regard to the radio frequency spectrum.
4. The Senior Official Radio Spectrum Group was established on 26th July 2002. It is made up of one representative from each of the Member States and one representative of the Commission. Its duty is to advise the Commission on issues dealing with radio spectrum policy.
Even though the directives pass over the regulation of
the content of communications and address technical and
transmission infrastructure, they are also significant for
radio and television broadcasting127, i.a. in such fields as:
Open Network Provision Committee, "The 2003 regulatory framework for electronic communications – Implications for broadcasting".
Working Document. Brussels: European Commission, Directorate-General Information Society, 2002; Stanis³aw Pi¹tek, "Prawo telekomunikacyjne Wspólnoty Europejskiej" .Warsaw: Wydawnictwo C.H. Beck, 2003.
64
The linkage with radio and television issues is also
derived from the definition of the basic concepts used in
the directives. EU law defines "electronic communications networks" as:
"electronic communications network means transmission systems and, where applicable, switching or routing
equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other
electromagnetic means, including satellite networks, fixed
(circuit- and packet-switched, including Internet) and
mobile terrestrial networks, electricity cable systems, to
the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of
the type of information conveyed;"
"Electronic communications services" have been defined as:
"a service normally provided for remuneration which
consists wholly or mainly in the conveyance of signals
on electronic communications networks, including telecommunications services and transmission services in
networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and
services; it does not include information society services,
as defined in Article 1 of Directive 98/34/EC, which do
not consist wholly or mainly in the conveyance of signals
on electronic communications networks;" (art. (Article 2,
(a) and (c)).
This is why it can be hardly said that the directives
deal only with telecommunications issues. Most of their
provisions also apply, to a greater or lesser extent, to
communications, as well as to radio and television broadcasting.
Hence, the transposition of the directives will require considering manifold consequences stemming out of the solutions adopted in them. This has been mentioned in Directive
2002/19/EC of the European Parliament and Council of 7th
March 2002 on access to, and interconnection of, electronic
communications networks and associated facilities (Access
Directive), which states in point 10 of the recitals:
"(10) Competition rules alone may not be sufficient to
ensure cultural diversity and media pluralism in the area
of digital television."
This issue is also dealt with in Directive 2002/21/EC
of the European Parliament and Council of 7th March
2002 on a common regulatory framework for electronic
communications networks and services (Framework Directive) , which states in the recitals:
"(5) It is necessary to separate the regulation of transmission from the regulation of content. This framework
does not therefore cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting
content, financial services and certain information society services, and is therefore without prejudice to measures taken at Community or national level in respect of
such services, in compliance with Community law, in order to promote cultural and linguistic diversity and to
ensure the defence of media pluralism. The content of television programmes is covered by Council Directive 89/
552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of
television broadcasting activities (1).
The separation between the regulation of transmission
and the regulation of content does not prejudice the taking into account of the links existing between them, in
particular in order to guarantee media pluralism, cultural
diversity and consumer protection."
This position is derived from the debate on the "Green
Paper on Convergence" published by the European Commission in 1997, where the question was asked, whether in
the face of technological convergence in radio and television broadcasting and telecommunications, a single legal
framework should not be created to embrace these areas,
a system based on the principles of telecommunications
regulation. The answer was a determined "no" from all the
Member States, precisely because of differences in the logic, objectives of national policies and operation of regulators in telecommunications and in broadcasting.
EU directives do not impose transposition methods
upon the Member States, leaving it to them, provided that
the prescribed objectives are achieved.
KRRiT checked with several dozen European countries what authority was making frequency reservations
for the purposes of analogue and digital radio and TV
broadcasting. The answers received showed that in 10
cases, it was the government or the telecommunications
regulator, in 12 cases – the radio and TV regulator and
in 3 cases – an integrated regulator dealing both with telecommunications and radio and television broadcasting.
In many countries (e.g. France, Great Britain and Sweden) multiplexes (frequencies, programming) remain within
the competences of the radio and television regulator.
• Rights to engage in transmission activities;
• Frequency assignments;
• Access to distribution networks;
• "Must carry" obligation;
• Conditional access systems;
• Other facilities (EPG, API);
• Interoperability of digital television services;
• Interoperability of digital TV receivers;
• Wide-screen TV.
In many countries issues dealing with radio and television broadcasting (frequency assignments, filling up
multiplex capacity, etc.) have been either set out in broadcasting acts (Great Britain, Ireland), or directives on
65
electronic communications have been transposed in radio and television regulations (e.g. Belgium-Wallonia) or
in acts dealing with both broadcasting and telecommunications (Great Britain).
Thus, we can make a substantively justified division
of the provisions, obligations and competences derived
from the directives between different acts and regulatory
authorities. Paragraph 3 of Article 3 of the Framework
Directives is very plain about that:
"1. Member States shall publish the tasks to be undertaken by national regulatory authorities in an easily accessible form, in particular where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation and cooperation
between those authorities ... Where more than one authority has competence to address such matters, Member States shall ensure that the respective tasks of each
authority are published in an easily accessible form."
As the EC report on the application of the package of
directives on electronic communications shows, that128 is
precisely what happened in many countries.
6.1.2. "Horizontal" Electronic Media Content Regu−
lation
The regulation of the content of electronic communications has so far failed to develop a single set of provisions embracing all the forms of this communication being public communication, i.e. traditionally subjected to
regulations designed to foster public policy objectives in
this area, irrespective of the medium used to carry the
content. This need is derived, inter alia, from the fact that
radio and television programming may be delivered e.g.
over the Internet129 or third-generation telephony130. Moreover, new types of programme and text "information
society services" are appearing (i.e. teleinformatic services), which require regulation and supervision. The Ger-
man law makes the distinction between "media services"
and "teleservices" (Table 25).
• the more editorial content there is (describing social
reality) and the more it may therefore influence public
opinion (criterion of the nature of the content);
• the less content is received in an individual manner
and has the nature of point to point and private communication (criterion of content availability and public
nature of its provision);
• the less the receiver can control content reception (it's
different with reception "on demand", where the user
must take conscious action to obtain access to specific content and initiates its transmission) (criterion of
degree of control over transmission);
• the less conscious is the choice of the content, i.e. the
less advance knowledge the receiver has about the
nature of the content that he is about to receive (criterion of the degree of conscious choice of the content).
Germany provides another example relating to the introduction of horizontal content regulation. On 1st April 2003,
Germany simultaneously adopted a federal law on the protection of minors (Jugendschutzgesetz) and a treaty between the federal states on the protection of minors and human dignity in the media (Jugendmedienschutz-Staatsvertrag, JMStV). They introduced a uniform system applicable,
in the former case, to the press, videocassettes, DVDs, games, etc. and in the latter, to "all electronic communications
and information media", i.e. to radio and television broadcasting and the Internet. The constitutional competences of
the federal states with regard to radio and television broadcasting were extended to embrace the Internet and the
earlier mentioned concepts of "media services" and "teleservices" were merged into one – "telemedia".
The treaty distinguished between three categories of
content: (1) inadmissible irrespective of the medium used;
(2) inadmissible in radio and television broadcasting, but
subject only to certain restrictions when transmitted over
the Internet; (3) content, which irrespective of the medium
used to carry it, may jeopardise the development or upbrin-
128
"European Electronic Communications Regulation and Markets 2003. Report on the Implementation of the EU Electronic Regulatory
Package" [SEC(2003) 1342] COM(2003) 715 final. Commission of the European Communities, Brussels, 19.11.2003.
129
The First World Summit of Regulators (Paris, 30th November 1999) addressed the issue of methods to be potentially used to
regulate radio and television programmes distributed through the Internet and distinguished several basic cases: (1) "distribution" on
the Internet of radio or television programmes, which are at the same time available on the radio waves or through other distribution
media; (2) distribution on the Internet of radio or television programmes produced for this particular medium (currently not subjected
to any licensing or supervision); (3) distribution on the Internet of radio or television programmes modified (e.g. by adding elements
of interactivity) in comparison with original programmes available through normal access. Such programmes are actually new programmes, which should be subjected to separate regulation.
In accordance with the conclusions of the Summit, radio and television law should adapt itself to new technologies, which will
require, among other things, defining a new type of services, which are intermediate services between point to multipoint and
point to point communications. The French CSA announced then that it would aim at introducing a new legal category – media
services, which lie somewhere in between point to multipoint and point to point communications and thereby require legal regulation limited to their fundamental elements, e.g. dealing with the protection of minors or advertising regulations, disclosure of the
broadcaster or right of reply.
130
A case in point is the agreement between Vodafone, Europe’s largest mobile operator and Walt Disney, under which the users of 3G telephones will be able to receive and exchange cartoons, games and music supplied by Disney. Thus, 3-G telephony will be a mass
medium, as if it were, providing the same content as television.
66
Type of service
"Media Services"
"Teleservices"
Legal Act
Mediendienste-Staatsvertrag
Teledienstegesetz
Nature of service
Point to multipoint and point to point
Relevant editorial content
Point to point
No relevant editorial content
Television on demand, Teletext
Internet newspapers and Internet portals,
e.g. CNN.com
e-commerce transactions
(e.g. banking operations)
Databases
Examples
Source: Andreas Grünwald, "What Future for Broadcasting in the Digital Era?", a paper presented during the seminar "The European
Convention on Transfrontier Television in an Evolving Broadcasting Environment", Strasbourg, 2001.
ging of minors. A regulatory authority established in pursuance of the treaty, Kommission fur Jugendmedienschutz
(KJM), is authorised to supervise radio and television broadcasting and the Internet. With regard to the Internet, it
relies mostly on the method known as "regulated self-regulation" of content providers, i.e. their development of
codes of conduct and operating rules, combined with their
own supervision of their observance.
There is one regulatory authority, co-operating with
the KJM, which supervises the observance of the provisions of "Jugendschutzgesetz" relating to media other
than electronic media.
In its report on the application of the "Television without
Frontiers"131 Directive, the European Parliament's Committee on Culture, Youth, Education, Media and Sport has suggested another method to create a comprehensive, "horizontal" regulation of electronic communications media content. In this report, the Committee calls for the inclusion of
the effects of convergence into work on amendments to the
directive and for the development of a "Content Framework
Regulatory Package", covering the amended "Television
without Frontiers" Directive, the e-Commerce Directive and
the Directive on the harmonisation of certain aspects of
copyright and related rights in the information society related to satellite broadcasting and cable retransmission.
The examples discussed above are signalling the beginning of a quest for legal and institutional formulae related to
"horizontal content regulation" in mass communications, irrespective of the media used to transmit the information.
Poland has the obligation to transpose the new "electronic communications package" by 1st May 2004 and to
notify the transposition by 1st April 2004.132
As it is known, according to Community law, directives
are binding with regard to their objectives, whilst the cho-
ice of the measures designed to ensure the achievement
of these objectives is left to the Member States. Hence,
Poland has a certain margin of freedom in the selection
of the methods it will use to transpose the package.
Issues dealing with electronic communications, as
defined by the new directives, are currently regulated
mostly by two Laws: the Broadcasting Act and the Telecommunications Law.
The possible action scenarios with this respect have
been presented in Fig. 5.
Scenario 3 – one comprehensive act on electronic
communications (infrastructure and content) - this scenario seems premature (no EU country managed to develop an integrated regulatory framework embracing the
whole of radio and television broadcasting and telecommunications, although Great Britain has made considerable progress in that direction, by developing its "Communications Act"). It would be difficult to contemplate that
solution in Poland now, although it probably points to the
future directions of regulation in this area.
Scenario 2 – could be described as regressive, confining the scope of the regulation of radio and television
broadcasting to programme issues and transferring all
infrastructure regulation to another law.
Scenario 1 – is conservative, because it consolidates
existing ministerial divisions and hinders the development and implementation of comprehensive policy and
regulation required to embrace all the convergent areas
under one supervision and media policy system.
Networks and services are closely linked to "content"
and it is a two-way relationship. Today, we no longer
have any justification for maintaining the traditional,
wholly separate division into telecommunications on the
one hand and radio and television broadcasting, on the
Table 25 Regulation of Radio and Television Programmes, Media Services and Teleservices in Germany
131
Draft Report on the application of Directive 89/552/EEC “Television Without Frontiers” (2003/2033(INI), Committee on Culture, Youth,
Education, the Media and Sport, European Parliament, 5 May 2003.
132
EU Member States were supposed to transpose the directives by the end of July 2003, but France, Germany and Belgium informed,
that they would not meet the deadline, while the Netherlands can adopt the necessary legislation only towards the end of 2003.
67
Figure 5 Selected Scenarios of the Transposition of the "Electronic Communications Package"
Scenario 1
Scenario 2
Scenario 3
Amended
Telecommunications Law
Electronic
Communications Act
Single comprehensive Electronic
Communications Act
Parallel legislation
on infrastructure
Reference
Amended act on radio and TV
broadcasting
Regulation of programming and
infrastructure
(complete or partial)
Broadcasting Act
Programme regulation only
(broadcasters & producers)
other, which in turn means that the new directives should not be implemented by another round of amendments
to the two existing acts.
This means, that the new directives should be implemented by an entirely new act on electronic communications networks and services (superseding the
Telecommunications Law) and executive provisions
passed on its basis. Thus, the material scope of the
directives will determine the scope of the act intended
to implement them, although one should consider what
issues dealing with electronic networks and services
need to be included, to make the new act really comprehensive.
Then again, in work on the new electronic media act
postulated here, regulations dealing with the technical
aspects of radio and television broadcasting and programme distribution should be left in the act and even
expanded (Fig. 6), but also enriched with horizontal content regulation.133
Work on the drafting of the new act must be accompanied by in-depth analyses, which should become an integral part of the implementation process. They should
cover:
• the condition of the markets – their structure, development level and visible trends, including new technical
capabilities coming of age;
• law – general legislative principles in the Republic of
Poland and existing law, both related to issues specific to electronic communications networks and services and more general regulations (e.g. rights of way);
• institutions – their structure, position in the State,
general and specific operating principles (including
drawing up a list and classification of the objectives of ministerial departments concerned, respon-
133
Including content regulation
(radio, TV, information society
services, Internet)
sible for telecommunications, audiovisual issues,
electronic infrastructure, competition and industry);
setting out the new competences of ministerial departments and various regulatory authorities
(among others: telecommunications, audiovisual
industry and competition).
The latter is particularly important, among other
things because the Polish State seems unable to formulate and implement an audiovisual policy. This is
due to both the narrow, traditional perception of radio
and television broadcasting (including the lack of understanding of the economic significance of these
media), to inter-ministerial divisions (little understanding of the fact, that informatisation and the information society cannot be restricted to telecommunications
and the Internet), strong politicisation of these issues
(leaving all other aspects of these media in the background) and lastly, to the inability of government agencies to fulfil their obligations with this respect, imposed
by the Law on the specific fields of government administration. Due to all these reasons, KRRiT has had no
natural partners in the government administration, with
whom it could co-operate or to whom it could address
its initiatives. Thus, the proposed legislative efforts
should also change this situation.
As said above, the Electronic Media Act should cover selected technical aspects of radio and television
broadcasting and related services, including the regulation of electronic programme guides, conditional access systems, set-top boxes and application programming interfaces, and interoperability, or should delegate responsibility to regulatory authorities, to issue
ordinances dealing with these matters. Moreover, it
should include elements of horizontal media content
regulation.
France has made certain progress in that direction in its draft electronic communications act, extending the competences of its audiovisual regulatory authority (CSA) with regard to radio and television programmes to all media used for their transmission or distribution, i.e. also to programmes transmitted over the Internet. CSA is also to gain new regulatory competences with regard to the economic
and financial aspects of the operation of radio and television broadcasting.
68
Figure 6 Proposed Scenario for the Transposition
of the "Electronic Communications Package"
Scenario 4
Act on electronic communications
networks and services
Electronic Media Act
CONCLUSION 18
Given the conditions in Poland, we should consi−
der a transformation of the EC Communications Pac−
kage 2003, which would include:
• the adoption of a new act on electronic communi−
cations networks and services;
• the adoption of a new act on electronic media,
which will regulate the elements of the "Electronic
Communications Package" related to radio and
television broadcasting and, at the same time (in
an appropriate and justified scope), also new se−
rvices and applications related to social communi−
cation and introducing elements of "horizontal con−
tent regulation".
6.1.3 Assessment of the Method used to Trans−
pose EC Electronic Communications Package
Directives in the Draft Telecommunications Law
In actual fact, the draft telecommunications law chose
Scenario 2 (with some elements of Scenario 1) from
amongst the transposition methods proposed above for
the EC Electronic Communications Package. Incidentally, these are the scenarios that we have judged as the
least appropriate and least sound in substantive terms.
The solutions (including those of systemic nature) adopted in the draft Telecommunications Law do not correspond to the spirit or letter of the EC Electronic Communications Package Directives and do not reflect the essence of convergence processes, which these Directives
address.
This solution negates the role conferred to the
KRRiT by the Constitution of the Republic of Poland
and by the Broadcasting Act, i.e. that of the authority
competent in matters of radio and television broadcasting and limits its actual competences to matters of
radio and television programming. The solutions proposed in the draft telecommunications law disrupt the
existing licensing system for broadcasters (also constitutionally guaranteed).
One of the elements of this systemic solution is the
recognition in the draft law, that multiplex operators,
operators of conditional access systems and electronic programme guide operators are "telecommunications undertakings", which should (except EPG layout,
reserved for the exclusive competence of KRRiT) be
subjected only to market and telecommunications regulation. Yet the activities of all these undertakings
have a considerable influence on the programme offering available to the audience, therefore their regulation and supervision of their activities cannot disregard programming aspects. But, since they are to be
subjected to the Telecommunications Law and to
URTiP, they cannot be subjected in a different part of
their activities to the Broadcasting Act and to KRRiT.
The decision made in the draft Telecommunications
Law not only gets ahead of a potential debate on the subject, which should be pursued on the grounds of the Broadcasting Act. In actual fact, it pre-empts such debate. And
yet other countries have adopted different solutions. Multiplex operators were recognised as either broadcasters,
under the jurisdiction of broadcasting acts, or audiovisual
regulatory authorities were equipped with the authority to
decide about frequency reservations for multiplex operators. Thus, the solution adopted in the draft Telecommunications Law unilaterally confines the activities of undertakings, which have a significant impact on the programme
offering, to the area of telecommunications.
From this perspective, the most important provision of
the draft Telecommunications Law is contained in Article
1, paragraph 2, sub-paragraph 1, reading:
"The purpose of the Law is to establish conditions for:
1) promoting competition on equal footing and effective competition in the provision of telecommunications
services"...
Acting in pursuance of this provision, URTiP has no
basis to intervene in programming issues or use other
criteria in its regulatory policy, than market criteria,
protection of competition or technical standards. However, the draft mandates it to make numerous decisions on matters directly or indirectly related to programming and electronic communications content. In
other words, URTiP's President may enter the field of
audiovisual policy and national broadcasting policy,
reserved for the Ministry of Culture and KRRiT, which
in this area operate in communication with the Prime
Minister.
The draft Telecommunications Law equipped URTiP's
President with the following competences:
• Drawing up frequency allocation plans or changes of
such plans on his own initiative OR at the request of
and in communication with the Chairman of the National Broadcasting Council, for frequencies intended for
the broadcasting or distribution of radio or television
programmes (Article 105);
69
• Making, modifying or withdrawal of individual reservations of frequencies or orbital resources (Article 107),
with the exception of reservations for broadcasters for
analogue transmission or distribution of radio and television programmes;
• Modification or withdrawal of frequency reservations,
if frequencies covered by the reservations are used to
an insignificant extent or inefficiently (Article 117. 1),
which may affect programme distribution capabilities;
• Independent regulation of conditional access systems
and electronic programme guides (excluding EPG layout) (Article 126.1), inter alia on the basis of an ordinance of the Minister competent for communications,
which will set out the requirements for conditional access systems, in accordance with the requirements of
Annex I, Part I of the Access Directive (which, among
other things, sets out programme requirements);
• Maintenance, modification or withdrawal (in communication with KRRiT) with regard to telecommunications
undertakings with significant market power, of associated facilities, after having carried out market analysis in
accordance with Article 24, of the obligation to provide
access to these associated facilities (Article 127. 1).
– KRRIT intervenes in matters dealing with conditional
access only in the case of SMP operators;
• Carrying out inquiries on the designation of an undertaking or undertakings with significant market power in
relevant markets and imposition of regulatory obligations stipulated in the Law. The President of URTiP
shall make decisions on the designation of significant
market power undertakings in the markets of radio or
television broadcasting in communication with the President of the Office for Competition and Consumer Protection and KRRiT. (Article 26. 1) – actually, these measures targeted at the market of radio and television
broadcasting, as well as at conditional access systems
or electronic programme guides should be implemented by KRRiT acting in communication with URTiP;
• Setting up colleges to resolve disputes between telecommunications undertakings, from amongst persons
designated inter alia by KRRiT (Articles 199 and 200)
– a large part of these disputes will deal with programme issues.
However, one may assume that even though these solutions are inappropriate and unfounded, they will rather
accelerate than slow down the implementation of the conception of the creation of a single regulator for radio and
television broadcasting and telecommunications. Problems
and conflicts, which will accompany the implementation of
these solutions, problems with separating URTiP's and
KRRiT's competences, the need to involve KRRiT in reso-
134
135
lving dilemmas concerning programming and general media policy, which according to the draft telecommunications
law are to be the exclusive preserve of URTiP, will quickly
open eyes to the need of a different structural solution, i.e.
to combine these two regulatory bodies.
6.2. Regulation, Supervision and Self−Regulation of
Electronic Media and Internet Content
General Trends
The development of programme teleinformatic services and of the Internet itself leads to numerous problems
with regard to the regulation of mass communications
content. Among other things, this is due to the following
facts:
• Law cannot keep abreast of technical progress and of
market processes;
• Globalisation allows the avoidance of the jurisdiction of
the authorities of the country, in which communicated
content is received and fosters "jurisdiction shopping",
i.e. moving operations to countries with laxer laws;
• Internet's global reach leads to conflicts of jurisdiction,
which enables content providers to avoid responsibility or makes their supervision more difficult.134
This does not change the fact that new electronic media can have illegal or harmful content. Hence, the constant search for solutions, which will increase the direct
responsibility of the operators, content providers and undertakings for the content that they transmit and based
on their co-operation in that area.135
Among other things, European organisations are pursuing activities aimed at ridding cyberspace of harmful
and illegal content. In 1996 the European Commission published the "Green Paper on the Protection of Minors and
Human Dignity in Audiovisual and Information Services".
In 1998 the Council adopted the "Recommendation on
the development of the competitiveness of the European
audiovisual and information services industry by promoting
national frameworks aimed at achieving a comparable and
effective level of protection of minors and human dignity".
Then, in 1999 the European Parliament and the Council
adopted the "Multiannual Community action plan on promoting safer use of the Internet by combating illegal and
harmful content of global networks". It provided for action
by the Member States, undertakings and other parties involved in the creation and distribution of content in cyberspace, and of course, by the European Commission itself.
See Teresa Fuentes-Camacho (ed.) "The International Dimensions of Cyberspace Law". Aldershot, Paris: Ashgate, UNESCO, 1998.
See Suzanne Nikoltchev (ed.) "Co-regulation of the Media in Europe". IRIS Special. Strasbourg: European Audiovisual Observatory,
2003;, Wolfgang Schultz, Thorsten Held, "Regulated Self-Regulation as a Form of Modern Government". Interim Report. Hamburg: Hans
Bredow Institute for Media Research, 2001; "Proceedings of the Information Seminar on Self-Regulation by the Media" DH-MM (99)
Strasbourg, Directorate of Human Rights, Council of Europe, 1999; Janusz Barta, Ryszard Markiewicz, "Internet a prawo" (Internet and
Law). Kraków: Universitas, 1998.
70
As a result, many countries saw the rise of self-regulation systems for content providers and ISPs. Organisations
uniting these undertakings were formed, which were responsible for supervising the observance of codes and rules.
Hotlines were started for persons finding undesirable content on the Internet. Content filtering systems were devised
for the Internet, which made it possible to avoid sites and
portals with prohibited content. Even though neither these
measures, nor any other can be 100% effective, they at least contribute to a partial achievement of these objectives.
Directive 2000/32/EC of the European Parliament and
Council on the approximation of certain legal aspects of
services in the information society and in particular, of
electronic commerce in the free market.
The Cybercrime Convention adopted in the system of
the Council of Europe on combating criminal offences in
cyberspace, along with its additional protocol on the criminalisation of racist and xenophobic propaganda published via computer networks was another act of international law in this area.
As goes for the regulation of content transmitted via
the Internet at the national level, there are four possible
approaches:
1. specific statutory regulation devoted to the Internet;
2. independent regulation carried out by bodies elected
by the "Internet industry" itself;
3. self-regulation by service and content providers, combined with a regulatory authority handling complaints
against providers and equipped with the authority to
impose sanctions upon them;
4. no regulation whatsoever.
Independent regulation and self-regulation are the
most widespread. The following forms of such regulation
may be distinguished:
• "Auto-monitoring" – auto-verification of the compatibility of transmitted content with the law, carried out by
the broadcaster or content provider;
• "Self-regulation" – development of codes of good practice or rules by the operators themselves or their organisations, without any participation of State authorities136;
• "Regulated self-regulation" – self-regulation within the
framework of regulations laid down by State authorities
and supervision of self-regulation by such authorities;
• "Co-regulation" – self regulation with an active participation of a regulatory authority, which may designate
objectives to be achieved by the operators or their organisations, take part in imposing sanctions for failing
to abide by the rules laid down by self-regulation or
impose formal rules of conduct or provisions, where
self-regulation fails.
A review of international practice relative to Internet137
content regulation carried out several years ago essentially showed (if we pass over totalitarian states) two approaches:
1. Countries (such as Australia, Germany, Singapore),
which have legally prohibited the transmission of
some types of content via the Internet and service and
content providers were mandated to eliminate such
content. At the same time, an authority was designated to react to public complaints about the appearance of such content on the Internet.
2. Countries (such as Canada138, India, Japan, Malaysia,
Great Britain139, USA140), where the matter was left to
self-regulation by content providers and ISPs141.
6.2.1. Organisational Solutions with regard to the
Regulation and Supervision of Internet Content
As mentioned before, some countries have designated authorities142 generally responsible for the supervi-
136
See also the recommendation of the Committee of Ministers of the Council of Europe "Recommendation Rec (2001) 8 on Self-Regulation Concerning Cyber Content (Self-Regulation and User Protection Against Illegal or Harmful Content on New Communications and
Information Services)".
137
Ian G McGill, "Internet content regulation", Intermedia, Issue 1999 Vol.27/No.5.
138
In 1999 the Canadian Commission for Radio, Television and Telecommunications decided to refrain from extending its regulation even
to those Internet services, which could be covered by the definition of radio and television broadcasting.
139
In Great Britain, the creation of the Internet Watch Foundation, a self-regulatory body founded by Internet operators was nonetheless
an initiative of the police and of the Ministry of Trade and Industry, who had persuaded the operators to set up a self-regulatory system.
140
In 1996 the United States Congress adopted a telecommunications bill containing the "Communications Decency Act Section", which
made it illegal to "knowingly" display to a person under 18 years "filthy or indecent" content on the Web. The Supreme Court ruled this
Section unconstitutional, as it limited the freedom of speech. See also J. Oxman, "The FCC and the Unregulation of the Internet", http:/
/www.fcc.gov.
141
See also "The Internet and some international regulatory issues relating to content". A pilot comparative study commissioned by
UNESCO. Sydney: Australian Broadcasting Authority, 1997.
142
In the "Declaration on the freedom to communicate on the Internet" of 28th May 2003 the ministerial committee of the Council of
Europe pointed out, that if the Member States decide to establish special regulatory or supervisory authorities to deal with the Internet
or entrust such competences to existing regulators, then such bodies should fulfil the criteria of independence and autonomy laid down
in Recommendation (2000) 23 on the independence and functions of regulatory authorities in radio and television broadcasting.
71
sion of the system of "co-regulation" of Internet content.
A certain evolution of approaches with this regard may
be observed here.
In 1998 the French Council of State pronounced itself
against any statutory regulation of the Internet. In its opinion, it was better to rely on self-regulatory mechanisms
and international co-operation, applying the existing legal
regulations to the Internet, insofar as practicable. In its
opinion, the areas which needed to be looked at in this
aspect were the protection of privacy, e-commerce, protection of intellectual property and the convergence of telecommunications regulation, radio and television broadcasting regulation, etc. The next government founded the
"Forum des droits sur l'Internet", as a co-regulatory authority, made up of operators' representatives. Today it is already anticipated that a special regulatory authority will be
established, the Conseil Supérieur de l'Internet, so probably it will be an institution similar to the Conseil Supérieur
de l'Audiovisuel, i.e. KRRiT's French counterpart. According to available information, there will be a consultation
council attached, made up of the representatives of Internauts, operators, content providers and ISPs.
We have already mentioned the German authority Jugendschutz, in charge of the supervision of commercial broadcasters and of the Internet. In Spain in 2002 a consortium
made up of the telecommunications regulator and audiovisual regulators established the Agencia de Calidad de Internet (Agency for Internet Quality), whose objective is to promote good and ethical practices on the Internet. It is supposed to publish a code of conduct and Internet sites espousing
the code will be able to use the logo of the code.
Australia has adopted a different approach. In 1999 it
adopted the Broadcasting Services Amendment (Online
Services) Act designed to extend the rules applicable to
radio and television broadcasting on the Internet, especially with regard to illegal content or content harmful to minors.
This act established a system of "co-regulation", which includes the Australian Broadcasting Authority, broadcasters
and content providers, intended mostly to create a system
for reviewing complaints on Internet content. The ABA has
no obligation to actively monitor the Internet in quest of prohibited content. The idea of "co-regulation" is about the broadcasters and content providers themselves adopting codes, which will define the applicable standards and rules.
If undesirable content originates from an Australian source, ABA may prohibit its transmission and mandate its removal from the Internet. If it originates from a foreign source, ABA
must inform the police and may order the Australian ISP concerned to discontinue the transmission of such content.
Situation in Poland
Poland has not yet addressed the issue of Internet
content regulation.
Poland's accession to the European Union will imply
the obligation to enforce the Community policy on the
72
protection of minors and human dignity in cyberspace
and combating harmful and illegal content. This means
that the State will have to take measures to initiate selfregulatory or co-regulatory processes, using the existing
regulatory authorities.
6.3. New Types of Advertising
The recent years have seen the rise, already in television programmes or in R&D efforts, of new types of advertising, which lead to numerous problems of legal, regulatory and other nature.
Among others, these are:
1. interactive advertising: a banner or a "pop-up" is placed on the screen. It can be activated with a pilot to
launch an interactive advertising transmission or an
e-commerce service;
2. split-screen advertising (screen split between the programme and advertisement), which in turn can be divided into: "dual-image advertising" (the advertisement takes up most of the screen, the programme takes up the rest, the audible soundtrack is that of the
advertisement, not of the programme); "half-screen advertising" (when the text is displayed the screen is split
in half and the advertisement is shown in the second
part of the screen with its soundtrack); "moving banner advertising": the bottom part of the screen has
separate space for advertising or text information;
3. superimposed or background advertising (e.g. in EPGs)
4. reminder of the sponsor (e.g. showing sponsor's logo
or name during a programme);
5. virtual advertising: computer-generated images e.g.
superimposed on existing billboards at sports stadiums; animated billboards; adding new billboards;
projecting advertisements on the pitch or elsewhere;
3-D advertising;
6. virtual "product placement" (demonstrating products);
7. sponsoring individual elements of programmes (graphics, prizes, interactive applications);
8. advertising and sponsoring events shown on television;
9. identification of time-measuring equipment manufacturers (e.g. during sports events).
Many of these advertising forms evade the existing
regulations and raise new legal problems. For example,
this applies to the requirements that: (1) advertising must
be an easily identifiable element of programmes; (2) there must be clear separation between programmes and
advertising material ("split-screen advertising" raises e.g.
the question, whether this separation must be in terms of
time, as has so far been, or can it be spatial, where programmes and advertising are on screen at the same
time); (3) and that advertisements may be broadcast during programmes only in a manner ensuring that the integrity and value of the programme, or the rights of the
owner of programme rights are not affected. In this situation, the protection of minors becomes a particularly
sensitive issue. The new advertising forms are reaching
Table 26. System of Internet Regulation and Self−Regulation
Internet Industry:
• Codes of conduct
• Financing self-regulation (hotlines, evaluation, filtering)
• Promotion to users
Evaluation, content
filtering
• Development of international content evaluation
and filtering system
• Developing inter-cultural
agreement on content
evaluation criteria
Law:
• Fighting illegal content
• Co-operation with hotlines
• Support for self-regulation
Hotlines:
• Information about illegal
or harmful content
• Transmitting information
to country of origin
• Co-operation with prosecutors' offices
Illegal content
Source: Self-regulation of Internet Content, Gütersloh: Bertelsmann Foundation, 1999.
beyond the current limits on advertising time and make
their application very difficult.
Even though we have already seen the first attempts
at developing regulations dealing with some of the new
types of advertising143, we are still a long way from a widespread adoption of rules, to which such advertising
should be subjected. The European Union has also addressed the matter in the framework of consultations on
amendments to the "Television without Frontiers"144 Directive. Trying to normalise issues stemming from the evolution of new advertising forms and progressing media
convergence, the Community may use one of three following solutions:
1. extend the "Television without Frontiers" Directive to
new media and new services,
2. monitor developments in the media market and depending on their directions, make the existing regulations
more specific to eliminate overlapping provisions,
3. develop a new legal framework common for all types
of electronic media in the form of horizontal regulation
normalising their operation and content (so-called horizontal content regulation).
It would appear that what raises most interest in the
current debate is the extension of the directive to embrace the new forms of sponsoring and advertising forms
(virtual, split-screen and interactive). In developing the
legal framework regulating these new media phenomena, we should try to adapt the new regulations amending
the provisions of the "Television without Frontiers" Directive to other, already existing regulations, such as Directive 2000/31/EC of 8th June 2000 on certain legal
aspects of information society services, in particular electronic commerce, or Directive 97/7/EC of 20th May 1997
on the protection of consumers in respect of distance
contracts, as well as regulations dealing with the protection of personal data, such as Directive 95/46/EC of 24th
143
The practice of "split-screen advertising" has been regulated to a varying extent in Germany, Turkey and Spain. The Standing Committee of the Council of Europe on Transfrontier Television adopted its Opinion No 9 (2002) on "split-screen advertising", in which it
states that this practice falls under the provisions of the European Convention on Transfrontier Television, but is unacceptable, where
it fails to respect the requirements of the Convention with regard to the clear and transparent separation of programming from advertising
and other requirements set out in Article 7 (responsibilities of the broadcaster), Article 11 (general advertising standards), Article 12
(duration of advertising in programmes); Article 13 (form and presentation of advertisements), Article 14 (insertion of advertising in programmes), Article 15 (advertising of particular products). The British Independent Television Commission has published its guidelines on
i.a. advertising in interactive television programmes ("Guidance to Broadcasters on the Regulation of Interactive Television Services".
London: Independent Television Commission, 2001).
Legal but
harmful content
144
See "Review of the "Television Without Frontiers" Directive. Theme 3: Protection of General Interests in Television Advertising, Sponsorship, Teleshopping and Self-Promotion". Discussion Document. Brussels: European Commission, 2003.
73
October 1995 on the protection of individuals with regard
to the processing of personal data and on the free movement of such data, or the recently adopted Directive
2002/58/EC of 12th July 2002 on the processing of personal data and protection of privacy in the electronic communications sector.
What is also emphasised during the debates is the
possibility of using various forms of "co-regulation" (selfregulation of market undertakings145 within a framework
defined by the State and under its supervision).
Advertising on the Internet146 is an issue in its own right. Interactive advertising in mobile phones, accessible
through WAP and in palmtops, accessible through the
PDA protocol (in the form of logos, images, text or SMS)
is also gaining increasing importance.
CONCLUSION 19
The new forms of advertising are not yet widely
used in Poland and have not been regulated by law.
We should follow the development of EU debates on
the subject and adopt the solutions, which will be
proposed there.
7. REGULATORY MODELS FOR RADIO AND TELE−
VISION BROADCASTING AND TELECOMMUNICA−
TIONS
General Trends
The European Union attaches much importance to the
proper functioning of audiovisual regulators in the new Member States, treating it as proof of the administrative capability
to implement the acquis communautaire in this area.147 The
Commission has also announced that it would begin consultations on establishing closer EU level co-operation between European audiovisual regulatory authorities.148
The Communication from the European Commission
on the Principles and Guidelines of the Community Audiovisual Policy in the Digital Age149 stated, among other
things, that:
• regulatory authorities should be independent from governments and market undertakings;
• technological convergence required increased co-operation between the regulators concerned (communication infrastructures, audiovisual sector, competition);
• regulatory authorities could contribute to the development and implementation of self-regulation. As the
number of broadcasters increases and new technologies are more widely used, which makes it more difficult to extend regulation and supervision to them, it is
anticipated that various forms of self-regulation (maybe co-regulation or "regulated self-regulation”) will be
increasingly applied to the distribution of programmes
and content. This will imply the development of rules
and codes of good practice by the broadcasters themselves or content providers, possibly within a legal framework created by legislation and with a defined role
of regulatory authorities in their enforcement.
As mentioned above, technological convergence and
market integration lead to a situation, where the challenges facing media policy and regulation can be better
addressed by regulatory structures capable of formulating versatile policies and regulatory practices applicable to the media sector as a whole. More and more countries are realising this objective by merging various
regulators150, especially by establishing integrated regu-
145
See e.g. "Advertising Self-Regulation in Europe. An analysis of advertising self-regulatory regimes and their codes of practice in 22
European countries". European Advertising Standards Alliance, 2001.
146
In the case of Internet advertising, the already established categories are: the banner (a small, separated part of the screen with an
advertising logo on its horizontal border), the skyscraper – a vertical banner, the pop-up – the text of the advertisement appears after
clicking on it and disappears after about 5 seconds, the button – smaller than a banner, of any shape, can appear in any part of the
screen, animations - in HTML format presenting the advertising content, advertorial – advertising included in text, resembles information,
topical advertising – advertisements related to themed pages placed on such pages, split screen – advertising using split-screen, interactive advertising, keyword searches – a user entering a keyword into a search engine receives, on top of the results of his search,
advertisements related to the subject matter e.g. motor cars, advertisements included in newsletters, e-mailing (permissive marketing)
– e-mail advertising is directed at persons, who had agreed to receive promotion materials, e-couponing – discount coupons visible on
screen encourage viewers to buy products or services, webpage sponsoring – sponsoring selected websites, etc.
147
"Main Administrative Structures Required for Implementing the Acquis. Overview". Informal Working Document. European Commission, 10 April 2002;
148
"Fourth Report from The Commission to the Council, the European Parliament, the European Economic and Social Committee and the
Committee of the Regions on the application of Directive 89/552/EEC ‘Television without Frontiers". COM(2002) 778 final, Brussels,
6.1.2003.
149
"Principles and Guidelines for the Community’s Audiovisual Policy in the Digital Age". Communication from the Commission to the
Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions. COM(1999) 657 final. Brussels, 14.12.1999.
150
Norway for example, is currently implementing a merger of an authority regulating media ownership, a regulatory authority for the
mass media and the film classification commission into one "Media Authority".
74
This is precisely the model of the regulator adopted in
the United States and Canada for the Federal Communications Commission and the Canadian Radio-Television
and Telecommunications Commission. South Africa also
has an integrated regulator. In 2000 it established the Independent Communications Authority of South Africa (ICASA) by merging its telecommunications regulator (South
African Telecommunications Regulatory Authority) with the
radio and television broadcasting regulator (Independent
Broadcasting Authority). In Japan, telecommunications
and radio and television broadcasting policy and regulation remain within the competences of the same ministry.
Italy was one of the countries to pioneer this trend in
Europe. In 1997 it established the Autorita per le garanzie nelle comunicazioni (AGCOM), which is an independent regulator for the entire communications system in
Italy, dealing with telecommunications, programme transmission (radio, television, new media) and the press.
The Finnish Communications Regulatory Authority (FICORA), previously called the Telecommunications Administration Centre, is also a single regulatory authority in
charge of all issues of electronic communications (including radio and television broadcasting) and information
society services.
Even though the Swiss Federal Communications Office established in 1992 is not an integrated regulatory
authority (the others are the Independent Complaints
Commission (AIEP/UBI) and the Commission of Telecommunications and Communications), it has been equipped
with a broad range of powers and supervises television
programmes, radio programmes, telecommunications
and telecommunications infrastructure.
In Switzerland, the draft amendments to the Act on
Swiss Radio and Television of 21st June 1991 provide for
the establishment of a single, integrated regulatory authority. The Independent Commission for Telecommunications and Electronic Media is to combine the current functions of the Federal Communications Office (OFCOM/BAKOM), the Independent Complaints Commission (AIEP/
UBI) and the Commission for Telecommunications and
Communications. Additionally, a consulting committee will
be established for the public service broadcaster SSR.
In Spain, the Telecommunications Market Commission
(CMT) is an independent body established in 1996, whose main duty is to "safeguard effective competition on the
telecommunications market and on the market of audiovisual and interactive services". CMT, as an integrated
competition regulatory authority deals with the telecommunications market and the market of audiovisual and
interactive services. Its main duty is to ensure effective
competition in these markets and typically, it does not
deal with other issues (such as e.g. ensuring objective
information in the audiovisual media). In May 2003,
a regulatory body called Consejo Audiovisual, responsible for television and the development of digital television, was formed within the structure of the CMT.
On 2nd March 2001 an integrated regulatory authority
was established in Bosnia and Herzegovina, which combined the responsibility for telecommunications regulation,
previously belonging to the Telecommunications Regulatory Agency (TRA) with duties related to radio and television broadcasting, formerly within the competences of the
Independent Media Commission (IMC). The Communications Regulatory Agency is now an independent authority
combining the former Telecommunications Regulatory
Agency and the Independent Media Commission.
Basing on a decree, which came into force in July 2001,
the Slovenian government established the Agency for Telecommunications and Radio and Television Broadcasting.
Great Britain has recently adopted its Communications
Act, which established a single media regulator – OFCOM
(Office of Communications), dealing with the regulation of
television, radio, advertising, Internet, telecommunications
and the press. OFCOM will combine the earlier functions
of the Broadcasting Standards Commission (BSC), the Independent Television Commission (ITC), OFTEL, Radio
Authority, Radiocommunications Agency, BBFC and partly, supervising powers over the BBC.
Instead of opting for a single regulatory authority in
charge of telecommunications and radio and television
broadcasting, some countries have decided to adopt different solutions.
Austria, in pursuance of its new law regulating relations in the communications sector adopted on 1st March
2001, established a new regulatory authority called
"KommAustria". This authority, which is a part of the Federal Chancellery, is responsible for awarding licences,
the provision of the necessary technical equipment and
legal supervision over commercial broadcasters. KommAustria has taken over the responsibilities of the earlier "Privatrundfunkbehörde", "Kommission zur Wahrung
des Regionalradiogesetzes" and the "Kommission zur
Wahrung des Kabel- und Satelliten-Rundfunkgesetzes".
The existing regulatory authority for telecommunications
– Telekom Control Kommission (TKC) – will remain in existence, but the TKC and KommAustria are acting through
a common body – Rundfunk & Telekom RegulierungsGmbH. Legal supervision over KommAustria will be assured by an independent federal body for communications – Bundeskommunikationssenat, which is also in
charge of the supervision of the Austrian public service
broadcaster – the ORF.
latory authorities for radio and television broadcasting
and telecommunications, which often have additional
competences to regulate competition in these fields.
75
Situation in Poland
76
As said earlier, the Polish government administration
has not yet reached its full capability with regard to the
formulation of audiovisual policy. KRRiT has tried to tackle the tasks dealing with the development of a national
radio and television broadcasting policy, but came to face
major hurdles for want of partners. Cinematographic policy, a central element of audiovisual policy, has been
neglected and nobody was so far able to produce
amendments to the 1987 Law on Cinematography. The
Ministry of Infrastructure was charged with telecommunications policy, while telecommunications market regulation was assigned to URTiP. The issues of the information society were entrusted to the Ministry of Scientific
Research and Information Technology. In actual fact, Internet issues have not even been addressed.
In these circumstances, any attempts aimed at formulating and implementing a comprehensive media, economic and technological policies, or a media and informatisation policy, corresponding to the real conditions in the
media and in the market, are a very tall order.
The above description of the situation shows, that structural changes with regard to the formulation and implementation of media policy and regulation are required.
The present study does not relate to the government
administration. As goes for regulatory authorities dealing
with telecommunications and radio and television broadcasting, the fact that already many countries have opted
for some forms of their integration proves, that that is
where future solutions are headed.
A potential alternative to this solution would be to:
• devise better structures and better co-operation procedures, to avoid conflicts derived from overlapping
competences and powers, e.g. by adopting the Austrian solution (retaining separate regulatory authorities, but combining their executive structure); or
• establish two, clearly separate authorities, with one
being responsible only for content issues and the
other – for infrastructure and media.
The first option could potentially aggravate conflicts
and misunderstandings, rather than prevent them. There is no material justification for the second and it is
regressive.
In a situation, where processes occurring in technology are the driving force behind programme and market
changes in radio and television broadcasting and other
media used to distribute programmes and content for
mass reception, confining the role of the regulatory authority for radio and television broadcasting to programming, would imply a gradual limitation of its role and its
marginalisation, the more so that – as said above– the
burden of regulation is shifting to structural regulation
(and such a regulator would have no instruments to deal
with that), while the methods of content regulation will
increasingly rely on self-regulation and co-regulation.
If the most important objective is to offer viewers access to the increasing number of programmes and combating any technological or market barriers preventing
that, then a regulator whose powers will be limited to the
granting of programme licences and their supervision will
not be able to do anything to foster the achievement of
that objective.
CONCLUSION 20
In the space of several years, Poland should see
the establishment of an integrated regulatory autho−
rity, equipped with the authority to issue ordinances
based on statutory foundations, whose competences
will cover telecommunications, radio and television
broadcasting, teleinformatic services and – competi−
tion policy in the relevant areas.
The new regulator should be as competent and as
independent as possible from any political pressures,
while its status, related to the citizens' fundamental right
to information, should be guaranteed by the Constitution.
Apart from its constitutional duties (safeguarding the
freedom of speech, right to information and public interest in radio and television broadcasting), the duties and
competences of the new regulator should concentrate
around the four basic objectives of this body:
• safeguarding culture,
• promoting effective competition,
• promoting content diversity,
• and a pluralistic market.
This new body would be the National Regulatory Authority within the meaning of the new package of EU electronic communications directives, entering into force in
2003. Thus, it will be able to take part in the proceedings
of the European Regulators' Group for Electronic Communications Networks and Services founded in pursuance of the European Commission's decision of 29th July
2002 (2002/627/EC).
European regulatory authorities are financed from
a variety of sources: State budgets (in most cases);
a fixed percentage of licence fees; a percentage of fees
collected from market players; special fees paid by market players towards the financing of regulatory authorities, etc. The new regulator should be financed with fees
for administrative service provided to the market players (with possible additional subsidies from the State
budget).
To ensure an appropriate level of competence of the
members of the new regulator, they should be appointed
in a two-stage procedure, involving:
Each entity will designate two candidates for one place, while the nominating authority shall be free to choose the person it will nominate for membership.
The new regulator should be made up of 9 persons,
nominated as follows:
• 4 persons nominated by the Parliament of the Republic of Poland from amongst candidates designated by:
- the Prime Minister (2 places),
- associations and business organisations of the telecommunications or IT sector (1 place),
- religious institutions (1 place).
• 2 persons nominated by the Senate of the Republic of Poland from amongst candidates designated
by self-government parliaments (regional criterion).
• 3 persons nominated by the Parliament of the Republic of Poland from amongst candidates designated by:
- the Ombudsman (1 place),
- national journalists' associations (1 place),
- national organisations of authors and audiovisual
producers (1 place).
Where the designating party is a group of organisations or self-government bodies, they would have the
obligation to submit a list of no more than two candidates to the nominating body, agreed between themselves
according to a procedure also agreed between themselves and signed by the authorised representatives of all
parties included in that category.
Currently existing restrictions on persons, who can be
nominated as KRRiT members, would be extended to
entrepreneurs operating in telecommunications and the
Internet.
The duties of the new regulator would combine the
current duties of KRRiT and URTiP. Additionally, this
body would have certain duties related to the protection
of competition within the sectors coming under its supervision (in communication with the Office for Competition
and Consumer Protection (UOKiK).
The duties of the new regulator should include periodical reviews and updating – in communication with
the Prime Minister – of the documents defining government policy towards audiovisual media and electronic
communications. Considering the significance of these sectors and the need to ensure the predictability of
laws and conditions for the conduct of business in these sectors, the Polish State should always have an upto-date comprehensive strategic plan in both sectors
and implement it.
The regulator would be a collegiate body, where decisions would be made in plenary sessions. Additionally,
two commissions would be formed from the members of
the regulator: one of them responsible for content regulation (including programme licences for the public media) and the drafting of licensing decisions relative to
radio and television broadcasting; the other - for the regulation of electronic communications infrastructure. The
Chairman of the new regulator would also chair both
commissions.
The new regulatory authority would be formed by
merging the Office of the KRRiT with URTiP. Its departments would support the proceedings of the Council at
plenary sessions and the work of both commissions.
The existing system of annual reports submitted to
both houses of the Parliament and to the President would be retained, including the consequences of the po-
Table 27. Tasks and Functions of the new Regulator
Functions
Culture
• Protection of the
Polish language
• Promotion of culture
• Protection of local
programmes and
information
• Protection of minors
• Programming
standards, journalist
ethics
• Programmes for
minorities
Effective Competition
• Spectrum management
• Spectrum pricing
• Access to pay-TV
platforms and EPGs
• Price control
• Dispute resolution
• Consumer protection
• Supervision of
advertising
Diversity
• Programme profiles
and formats
• Licensing of niche
offerings and social
broadcasters
• Universal channels
Pluralism
• Media ownership
regulations
• Access to audiences
• Political content pluralism
• Protection of PSBs and
commercial broadcasters' interests
• the designation of candidates by entities or groups of
organisations stipulated in the Act,
• then the appointment of members from amongst the
designated candidates, by the highest State authorities.
77
tential rejection of such reports by the Parliament, the
Senate or the President.
Functioning and Organisational Structure of the Fu−
ture Regulator
In 2003, in the framework of PHARE Project PL/IB/OT01,
Ernst & Young carried out an organisational audit of
KRRiT and of its Office.151 The conclusions formulated in
its outcome provide a number of valuable suggestions for
the design of the principles of the new regulator's operation in the area of broadcasting and for the shaping of
relations between the regulatory authority and its Office.
The future regulator must aspire to create an organisational structure and culture, which will be as little bureaucratised as possible, open to the flow of information
and targeted on designing a strategy, followed by its coordinated implementation. From the regulator's perspective, this means the need to set up a unit within the new
organisational structure, which will develop the regulator's long-term strategies and follow up their implementation. Job descriptions would have to be drawn up for
such a unit, as well as strategy-building processes, workplanning procedures for the Office of the new regulator
and follow-up procedures.
The future regulator cannot confine itself to annual
material and financial planning related to the budgeting
of the activities of its Office.
An effective implementation of tasks, which require coordination between various departments, will make it
necessary to adopt new solutions in the organisational
structure of the Office of the new regulator, which shows
that the members of the new regulator must specialise
and that the positioning of the Head of the Office has to
be different. This should permit better planning and better implementation of the strategic objectives of the Office of the new regulator, including those in such important areas as technological changes in the audiovisual
market or EU integration.
Until now, the only document to define the strategic
objectives and tasks of KRRiT and its Office was the Broadcasting Act, which states in general terms, that KRRiT,
as a body of State administration, competent for matters of
radio and television broadcasting, shall safeguard the liberty of speech in radio and television, broadcasters' independence and the interests of the audiences. Additionally, it is to ensure an open and pluralistic nature of radio
and television broadcasting. Implementing the new regulatory model will require translating these general provisions into specific strategic and operational objectives.
151
There is a particular need for a document containing
the objectives of the Office in a long-term perspective and
the proposed methods of their achievement. The new
organisational structure also needs specific effectiveness
indexes for strategic tasks. Without a well-defined action
strategy, it is impossible to analyse the adequacy of the
scope of operational tasks and work planning is also
more difficult. The proposed changes in the model and
financing principles of public service media will also require analyses. All these issues presuppose that a whole range of strategic work will be launched in the new
regulator's Office.
This also means that the new regulator will have to
carry out comprehensive strategic analyses related to
audiovisual policy or competition policy in the Polish
media market. The future regulator will have to take on
tasks related to analyses of the media market, which will
be used in designing the national audiovisual policy.
The results of such analyses should be also used to
develop and update the operating strategy of the new
regulator.
CONCLUSION 21
Defining the strategic objectives of the new regu−
lators and the methods to be used to achieve them
is crucial for the future regulatory model and effecti−
vely – a prerequisite for any further action.
Issues related to EU integration, especially those
dealing with the implementation of the acquis com−
munautaire (Television without Frontiers Directive, EC
Electronic Communications Package) and participa−
tion or representation in various EU bodies, issues
related to technological changes in the media mar−
ket (digitisation and new technologies), as well as
issues concerning the financing of public service
media, will all require the development of detailed
action strategies (often in communication with outsi−
de organisations).
As goes for activities related to European integration,
it is necessary to design and adopt an action strategy for
the new regulator's Office in connection with the need to
represent Poland in EU bodies. The present regulator is
faced with the urgent task of analysing the acquis communautaire in order to identify the tasks, for which the
present regulator is competent, under the existing law.
It is equally important to define the tasks of the new
regulator in connection with the new EC Electronic Communications Package, which will require closer co-operation with external organisations. Postponing these decisions may endanger Poland's implementation of the
acquis communautaire.
The scope of the organisational audit covered an analysis of the organisational structure of the KRRiT Bureau, its organisational
culture and organisational procedures. Carrying out the audit also required an analysis of the procedures related to the licensing process, registration of programming distributed in CATV networks, monitoring of broadcasters, programmes and application of radio and
TV licence funds.
78
Another document, which needs to be developed,
would be one listing the tasks of the Office of the new
regulator related to the implementation of the "Television
without Frontiers" Directive and assigning the tasks derived from the implementation of the directive to individual
organisational units, which would be a good starting
point for designing the strategy of the new regulator.
In a situation where the mission, vision or values of the
Office of the new regulator have not been unambiguously
and formally defined, the methods for the implementation
of these tasks, as well as the scope of their implementation, will be derived from practice to date, rather than from
clearly defined and targeted strategy and procedures. This
in turn creates the risk of the lack of effective co-ordination
between the regulator and its Office.
Thinking about the organisational structure of the future regulator, one might want to consider attributing specialisation in selected areas to its members, in a manner
ensuring their substantive contribution and co-ordination
of the strategic aspects of the regulator's activities. Such a
solution would also influence the procedures used to select candidates for members, who would have to meet
certain substantive criteria. Maintaining the current solution, where the interest of the members of the regulatory
authority in specific areas or current issues is voluntary,
may lead to problems with the co-ordination of work performed by the regulator's Office.
The members of the new regulator could act as coordinators or "liaison officers" between the regulator and
its Office. They would also be accountable to the Chairman for the co-ordination of work in specific areas.
At the same time, the job description of the Head of
the Office in the new organisational structure, should clearly include responsibility for planning, co-ordinating and
monitoring the progress of any substantive work carried
out by the Office.
The new regulator should also limit the number of tasks
commissioned ad hoc from his Office by the individual
members of the successor of the National Broadcasting
Council, to prevent the Office from focusing on current issues, undermining the cohesion of the regulator's activities.
The new regulator's Office must have an adequate financial and human potential, allowing an ongoing monitoring
of licensed organisations. Written procedures should be
elaborated, describing the principles applicable to the monitoring of advertisements and sponsored programmes.
The new regulator will be faced with the need to develop procedures describing the course of processes
related to licence fees (forecasting, registration and di-
stribution of licence-fee revenues, plus work with a company selected to collect licence fees, reviewing applications for licence fee remission or for payment by instalments, analysis of the financial results of public service
radio and television companies), to extend the scope of
supervision over the use of special funds and non licence-fee funds transmitted to public service broadcasters,
ensuring the proper use of such funds.
The Office's procedures dealing with specific issues
related to licence fees must include ensuring that the new
regulator will adopt resolutions on the distribution of licence fee-revenues within the time frame specified in the Broadcasting Act and that the regulator will be able to transmit collected licence-fee revenues in monthly tranches152.
The future regulator must also lay down, for the purposes
of its Office, the principles of policy and guidelines for licensing processes, which will enable the employees to apply
uniform rules to the review of licence applications or licence
renewal applications. The same applies to the policy and
guidelines for the monitoring of programming content.
The new regulator must also improve licensing procedures and licence renewal procedures in such a way,
which will make it possible to analyse applicants' ownership structure not only at the primary ownership level (i.e.
direct shareholders), but will also include indirect ownership, thus minimising the element of subjectivity in licensing decisions.
Procedures applicable to the notification of changes
in company status quo or legal status after licence award
will also need to be revised. Rather than being letters
from licence holders, that such notifications now are, they
should become standard forms.
The new regulator will also have to tide over the problem of specifying conditions, where licences may be
withdrawn and of the extended form of the economic/financial decision justifying licence award, which will have
to provide sufficient reasons to recognise that the selected licensee is better than its competitors.
CONCLUSION 22
The new regulator should design the policy, princi−
ples and guidelines for the licensing process, deve−
lop guidelines on the interpretation of the statutory
criteria of monitoring programming content, codify
procedures essential to the operation of its Office,
procedures dealing with licence fees and non licen−
ce−fee funds, draw up annual licence renewal and li−
censing plans, try to determine the best practice for
152
The current system mandates that the funds be transmitted within 7 days after they are collected. This produces a situation, where in
January and February, the companies show high profits (some viewers and listeners then pay their licences for the whole year) and have to
pay income tax. In the later months, their revenues are insufficient to cover high costs, while recovering overpaid income tax takes rather long.
79
that Office, set out in writing the minimum scope of
communications to be done formally (in writing).
80
The duties of the new regulator will also include developing institutionalised forms of co-operation with the Ministry of Culture, Ministry of Infrastructure, Office of Telecommunications and Posts Regulation and the Chancellery of the Prime Minister in designing the directions of
national audiovisual policy,so as to make sure that this co-
operation is more than a mere formality, allowing the parties concerned to pursue their own interests, depending
on their current needs and the political balance of forces.
The same will apply do developing statutory consultation
and mutual agreement procedures related to the strategy
of implementing the information society in Poland, as well
as to consultations on frequencies, which may be freed up
in a given year, which could be taken into account in licensing plans.
SUMMARY
The main objective of the project has been to propose comprehensive solutions for the electronic media
sector, which would adapt the functioning of regulatory
authorities and market undertakings to the entire EU
legal framework. This definition of the objective precludes an exhaustive analysis of all the strategic issues
related to the operation of the electronic media market
in Poland. The focus was on such issues as the debate
on the regulation of the "old" and "new" electronic media in the European Union and its implications for Poland. Special emphasis has been put on the logic of
thinking about modern media policy, that Poland, as an
EU member, will have to adopt and apply in designing
its legal media framework. Recognising that public service media issues are central to the whole market, as
well as to the development of commercial media (see
TV advertising market), the many deliberations presented in the study deal with such issues as public media
financing, programme licences, management structure,
ridding the regulator of party influences and changes in
the principles of its operation. The study devotes somewhat less attention to the functioning of commercial broadcasters or to competition policy. However, the solutions proposed essentially head for more market liberalisation, a regulator friendly to commercial media and
for the principle of market balancing, while retaining the
necessary intra-industry distinctions (between public
service and commercial, regional and social or local
broadcasters). The solutions presented in this study are
also aimed at strengthening regional, local and social
broadcasters, as they are perceived as an important
systemic component of media plurality. This element
also appears essential in the context of the functioning
of Polish media after EU accession.
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ANNEXES
ELECTRONIC COMMUNICATIONS
IMPLEMENTATION OF "NEW DIRECTIVES" (ELECTRONIC COMMUNICATIONS PACKAGE) − PROPOSAL FOR
THE POSITION OF THE REGULATOR OF THE RADIO AND TELEVISION BROADCASTING MARKET
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Piotr JASIÑSKI, Oxecon ltd. (Great Britain) – (editor)
Working Group:
Karol JAKUBOWICZ, KRRiT
Marian KIS£O, KRRiT
Ma³gorzata PÊK, KRRiT
Anna STRE¯YÑSKA, Market Economy Research Institute
March 2002 saw the publication of a package of directives on electronic communications networks and services that EU Member States were to implement by the
25th of July 2003. Thus, the package will constitute an
important component of Community law, which will be
in force at the time of Poland's accession, which means
that Poland should implement these directives before
this historical moment, i.e. prior to 1st May 2004. Bearing
in mind the complexity of the issues dealt with in these
directives and the volume of legislative work to be done
prior to accession, work on the implementation of the
directives on electronic communications should start as
soon as practicable. This work must be given priority
both by the bodies equipped with legislative initiative
and all other government and State administration bodies involved, which should unite their efforts to ensure
the most expedient implementation of this challenging
endeavour and use all available means to support this
work. Even though it may sound all too obvious, the first
step in that direction might be to assure good translations of the directives themselves and of other Community documents dealing with electronic communications
and related issues.
EU law defines "electronic communications networks" as:
"electronic communications network means transmission systems and, where applicable, switching or
routing equipment and other resources which permit
the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used
for the purpose of transmitting signals, networks used
for radio and television broadcasting, and cable television networks, irrespective of the type of information
conveyed;"
while "electronic communications service" is defined as:
"a service normally provided for remuneration which
consists wholly or mainly in the conveyance of signals
on electronic communications networks, including telecommunications services and transmission services in
networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and
services; it does not include information society services,
as defined in Article 1 of Directive 98/34/EC, which do
not consist wholly or mainly in the conveyance of signals
on electronic communications networks;" (art. (Article 2,
(a) and (c)).
Recital No. 5 explains that:
"It is necessary to separate the regulation of transmission from the regulation of content. This framework does
not therefore cover the content of services delivered over
electronic communications networks using electronic
communications services, such as broadcasting content,
financial services and certain information society services, and is therefore without prejudice to measures taken at Community or national level in respect of such
services, in compliance with Community law, in order to
promote cultural and linguistic diversity and to ensure the
defence of media pluralism."
This implies that the regulator has both the right and
the duty to take interest in all these issues - regulated by
the directives and hence enforceable - which more or
less directly (but not exclusively), deal with radio and
television broadcasting in their traditional sense and their
regulation. This is why the regulator needs to prepare
and take its position on:
1) the methodology of the implementation of electronic
communications directives;
2) the methodology of work on the drafting of the legal
acts, which will implement the directives; and
3) specific issues contained in the individual directives both the provisions, whose implementation is mandatory and those, in relation to which individual Member
States have to decide for themselves, whether to avail
themselves of the opportunities offered by the directives.
It is precisely in this order that we will present our proposals relative to the regulator's position.
Generally speaking, a country may use different ways
and instruments to implement directives, the rank of such
instruments being generally derived from its administrative and legal system. Issues dealing with electronic communications, as defined by the new directives, are currently regulated mostly by two Laws: the Broadcasting Act
and the Telecommunications Law, there are several
ways – at least theoretically – of their implementation. For
example, it is conceivable to attempt drafting and passing a single, comprehensive Law on electronic communications, which would deal with all the issues related to
electronic communications networks and services and –
using a conventional expression – also the "content" and
perhaps even information society services. This would be
a most complex, time consuming and potentially controversial endeavour. Even though networks and services
are closely tied to "contents" and this is a two-way relationship, it would appear that such a Law would unnecessarily combine issues, which are in great detail regulated by Community law (i.e. electronic communications
networks and services) and thereby subject to approximation prior to accession, with issues where Member
States are granted a much broader margin of discretion
(which, of course, does not mean that there is nothing to
implement or harmonise). Parallel to that there seems to
be no justification for the conceptual evolution, which
took place at the European level, to be accompanied by
a traditional division between telecommunications on the
one hand and radio and TV broadcasting on the other,
which in turn means that the new directives should not
be implemented through yet another round of amendments to the applicable Laws currently in force. What
stems from that is that the new directives should be implemented through a brand new act on electronic ne−
tworks and communications and appropriate executive provisions to such an act, and that the regulator should take active part in the drafting of these legal acts. It is
the scope of the directives that should determine the scope of the act intended to implement them, even though
what remains to be considered is what issues related to
electronic communications networks and services should
be included, to make sure the new act is as comprehensive as possible with this respect. As such additional issues are proposed, the regulator should be given the
opportunity to present its position both on the inclusion
of these issues in the act and on the solutions of these
issues that should be set out in the act.
With this approach, the harmonisation of Polish law
with Community law in the area of "content" and – especially – the implementation of the "Television without
Frontiers" Directive, remains an open issue. While this
goes beyond the scope of the proposals presented here,
it's worth emphasising, that even though such harmonisation could be achieved by such amendments to the
Broadcasting Act, which would do no more than implement that Directive, this should be paralleled by work on
a brand new Broadcasting Act or – more specifically –
on the "content" aspect of electronic communications networks and services. Issues dealing with public service
broadcasters, their duties and funding for their public
service remit could be regulated in that second Law.
2. How to implement?
Considering that the implementation of the new directives on electronic communications networks and services should be one of the main purposes of the new Act
on electronic communications networks and services and
the scope of the Act should essentially correspond to that
of the directives, the provisions of the directives should
become the starting point for the fundamental assumptions of the Act and then – for its provisions.
Directives are legal instruments specific to the European Communities. According to Community law they are
binding as far as the objectives are concerned, while the
means to be used to achieve these objectives remain at
the discretion of the Member States. This means that on
the one hand, there is always some room for manoeuvre
in the implementation process and, on the other, that the
implementation process requires the effort of selecting the
appropriate measures. Essentially, directives cannot be
implemented by copying their provisions into national law.
As far as the electronic communications directives are
concerned there is, generally speaking, rather little room
for manoeuvre, but still the implementation process should reflect the specific nature of the documents, whose
provisions are to be transposed into Polish law. This
would first imply the need to identify the objectives of the
individual directives and then the extent to which they are
mandatory. If these objectives – properly understood and
construed – are then to be achieved, then one must take
account of both the point of departure towards that target
state and the path to be taken. In other words, it is necessary to take account of the status quo, which needs
to be identified and critically analysed, at least in the light of the objectives of the directives. The identification
of the goals to be achieved will need to be followed by
in-depth analytical work, which should be an integral part
of the implementation process.
This status quo is of course a multi-dimensional reality and such a systematic approach to the implementation
of the directives should comprise:
• the condition of the markets – their structure, development level and apparent market trends, including
the appearance of new technical capabilities; one also
needs to consider the condition and dynamics of these market in EU Member States;
• law – the general principles of lawmaking in the Republic of Poland, as well as existing laws applicable
to both the specific issues of electronic communications networks and services (even though the concept
is new, the issues did not surface at the time of the
publication of the directives and some solutions had
already been developed), as well as more general re-
1. What Implementation?
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gulations (e.g. issues related to the rights of way); both
types of regulations require a critical evaluation and,
the more general regulations, will require answering
the question about the extent to which electronic communications networks and services should be ruled by
their own laws;
• institutions – both their structure, positioning within
the structure of the State and the specific operating rules, as well as their actual operation and how their
operation is perceived.
The elements of national policy pursued to date, irrespective of whether and to what extent they have been clearly
formulated, naturally belong to this status quo. If they remain valid, then there will be the need to consider the ways of
their achievement if, of course, they are not contradictory to
the objectives of the new directives or other provisions of
Community law. Beginning with the preparation of the assumptions (guidelines) for the Act may be a good opportunity to review and update national policy.
Thus, analysing the text of any individual directive in
the context of its implementation, one may and should
ask the following questions:
• what must be implemented, i.e. what are the mandatory objectives? These objectives in turn must be
translated into the language of specific measures (actions, rights and duties) ensuring their achievement;
• what may be implemented, i.e. what are the optional
objectives? Depending on the position taken with regard to these goals, they also need to be translated
later into the language of specific measures (actions,
rights and duties) ensuring their achievement.
In neither case, which is due to sometimes extraordinarily detailed provisions of the directives, can one exclude the fact, that copying individual provisions into Polish law may prove the optimal method of their transposition into the new Polish Act. However, one must
remember to retain both the sense of the provisions, as
well as their actual causative power, because that is what
matters at the end of the day. In certain cases such "quotations" will have to be additionally clarified, especially
in view of the general principles of lawmaking in Poland.
Irrespective of the number of such "quotations" used, it
will certainly remain in the best interest of the Republic
of Poland as a whole and of the producers (service providers) and the consumers of electronic communications
networks and services, to ensure that the implementation
process stays as close as possible to the texts of the directives. Any departures from the original texts should be
well justified and not conversely, i.e. situations where
various solutions are first proposed and only then their
conformity to Community law is considered.
On the other hand, considering that not all in the directives is new and that attempts at harmonising Polish
law with the liberalisation package, which resulted in the
full liberalisation of telecommunications as of 1st January 1998, have been pursued in Poland for many years,
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it is almost certain that some of the appropriate solutions
may be found in already existing laws and retained in the
new Act. One should also remember at all times that the
directives constitute a certain cohesive whole, the same
should apply to the new Act, which may often require
invoking the first (fundamental) rules applicable to the
regulation of electronic communications networks and
services, as they have been practically applied in the
practice of certain Member States and that this will be the
light in which the individual provisions of the proposed
Act and executive provisions to that Act will have to be
formulated and construed.
Before work begins on the specific provisions of
the new Act, it is necessary to draft and discuss its
fundamental assumptions, which should set out in
detail what is to be included in the new Act and how
specific issues will be solved. These assumptions
should contain the results of the necessary analyti−
cal work mentioned above and optional solutions for
problems requiring decisions of a political nature. Only
then will it be possible to embark on the drafting of the
Law itself and its executive provisions. Needless to say,
the final version of the assumptions must be respected
in the draft. Both issues will require a lot of courage and
unbiased thinking in the drafting of the necessary documents, to oppose the terror and/or inertia of the status
quo and – on the other hand – a strong sense of realism,
to avoid reaching for what is impossible, for one reason
or another.
3. Specific Issues
This part will present comments on the specific issues
contained in the individual directives and according to
the following formula: directive by directive, article by
article - which all concern more or less conservatively understood radio and television broadcasting. In other
words, in its position the regulator should deal with all
the issues regulated by the directives, which do not apply exclusively to telecommunications, e.g. the management of numbering resources. Before presenting the most
important issues related to the position to be taken and
before submitting any positions that may be taken with
regard to specific issues one must also note that not everything contained in the directive must or, actually can,
be included in the new Act.
Apart from the issues, which may be collectively called
the selection of measures (i.e. taking advantage of the
room for manoeuvre allowed by the directives, after a thorough analysis of the status quo) for the objectives (set out
in the directives, mandatory or optional), which are to be
implemented in the strict sense of the word, many of the
obligations imposed in the directive address for example
things that the European Commission is supposed to do
within a certain timeframe. There is also a number of provisions, which even though they include issues dealing
with electronic communications networks and services and
their regulation, also deal with more general matters.
Issues stemming from Poland's accession to the European Union will be a specific case in point. The way
the directives are structured presupposes close co-operation between a country's national regulators (in charge
of specific objectives listed in the directives) and with EU
authorities, as well as with other national regulators, both
individual and in the framework of a body uniting all these bodies. This in turn will call for the imposition of appropriate obligations upon national regulators and, parallel to that, equipping them with the requisite authority,
e.g. to provide information. These apply not only to electronic communications networks and services, but have
a more general nature. However, these issues haven't yet
been systematically regulated, which may culminate in a
situation where at the time of drafting of the new Act,
nobody will know whether and to what extent these more
general regulations will be sufficient for the purposes of
the implementation of the provisions of the directives.
Moreover, the language of the directives calls for operationalisation. For example, it is oftentimes said that the
Member States should encourage this or that. Certainly,
a lot will depend on what they are supposed to encourage, but it might be worthwhile to formulate some general
principles related to encouraging.
Lastly, there remains the question of the assessment
and – potential enhancement – of the effectiveness of the
existing institutions and procedures. For example, the
directives mention the need to implement "effective appeal mechanisms" from the decisions of the regulators.
In Poland, there is the right of appeal against any administrative decision, including regulators' decisions. But
are the existing mechanisms really effective? Without
due consideration being given to such issues and witho-
ut appropriate measures designed to mitigate the problems identified, the implementation of the new directives will never be complete.
Below we present comments relating to the individual
articles of each of the four directives of the electronic
communications package:
• Framework Directive
• Authorisation Directive
• Universal Service Directive
• Access and Interconnection Directive
3.1. Framework Directive
1. Article 3 reads: "Member States shall ensure that
each of the tasks assigned to national regulatory au−
thorities in this Directive and the Specific Directives is
undertaken by a competent body." Poland already has
its regulatory bodies, which undertake at least some of
the tasks prescribed by the directives, but at the same
time, they pursue objectives reaching beyond the scope
of the directives. A critical and open-minded assessment
of the existing regulatory structures and their interactions
should be the starting point for deliberations on the ways
of implementing the provisions of the directives, which
deal with national regulatory authorities. It is on this basis and on the basis of other objectives of national policy
relative to electronic communications networks and services and their "content" that decisions will have to be
made on - first and foremost - whether there will be one
regulatory authority or more. If we are to have more than
one regulatory authority, then how to divide the tasks listed in the directives? A decision will also have to be
made about the structure of this (these) authority (authorities) and their positioning with regard to other State, government and administrative authorities, especially
KRRiT.
Even though, conventionally speaking, the issues
related to "content" and its regulation are substan−
tially outside the scope of the directives and their im−
plementation, there are many arguments in favour of
combining all issues related to electronic communi−
cations, i.e. networks, services and "content" under
the jurisdiction of one, integrated regulatory body,
which is due to the close ties of electronic networks
and services with the "content" that they deliver.
Tentatively, such a regulatory authority could be called
the National Council of Broadcasting and Telecommu−
nications (KRRiT) or, e.g. the Electronic Communica−
tions Regulatory Authority (UREK). On the other hand,
the fact that the existence of the Council is safeguarded
by the Constitution imposes serious limitations with regard to any proposed new structures. However, it would
appear that the existing structures could be modified in a
way offering some hope of meeting the new challenges.
There can be two options here. First, that these more
general principles, be it obtaining the rights of way and
using the rights of way, or appeal procedures from administrative decisions, may prove to run contrary to what the
directives provide for electronic communications networks and services. The issue will then be whether these more general principles should be modified only for
the purposes of electronic communications, or broader
legislative work needs to be undertaken, reaching beyond the scope of the proposed Act. The provisions of
Article 4 of the Framework Directive, which mandate that
if a decision of a regulatory authority is appealed against, it will nonetheless remain in force until the ruling of
the appeal body, while in Poland it is the courts that decide, whether a decision against which appeal has been
filed, will or will not be enforceable with immediate effect, are an example of such a situation. Second, it may
also prove that even though the more general principles
are not contradictory, they need to be made more specific for the purposes of electronic communications networks and services. In this case the provisions of the
proposed Act will need to take account of both the directives and other provisions of national law.
The optimal solution would be to make the Council
a regulatory authority for electronic communications
and then give it support in the form of an authority
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established on the basis of the combined structure
of the Office of the Council and the current Office of
Telecommunications and Posts Regulation (which
means that the structures relating to posts should go
their own way). This would solve, at least to some
extent, the problem of co−operation between the indi−
vidual regulatory authorities, which should be assu−
red on the basis of Article 3 (4) of the Directive.
The effective functioning of such a structure would require changes within the Council itself. Article 3 of the
Framework Directive, which says that regulatory authorities must be independent and shall exercise their powers
impartially and transparently points to the directions of
these changes. These concepts will have to be given a
concrete shape, basing on the Council's experience to
date, as well as of the URT (initially) and URTiP (now).
2. Article 8, especially paragraphs (2) – (4), enumerates the national policy objectives with regard to elec−
tronic communications and its regulation. These objectives need to be incorporated in full in the proposed Act.
Another issue which will require very serious consideration is how to transform these three paragraphs into a legal basis for the activities of the regulatory authority. The
specific nature of Poland's legal system may pose serious
problems with this respect, but at any cost we must avoid
a situation, where the Act will have provisions, which will
have no practical significance and – at the same time –
there will be no guidelines for the regulatory policy.
3. The same Article 8 (1) reads: "National regulatory
authorities may contribute within their competences to
ensuring the implementation of policies aimed at the
promotion of cultural and linguistic diversity, as well
as media pluralism". As the present proposal for the
regulator's position is in favour of a single regulatory
authority with jurisdiction extending to all issues relative to electronic communications, then obviously, in pursuing its "content" functions, such an authority will contribute to ensuring "cultural and linguistic diversity, as
well as media pluralism". This however will not answer
the question about using or not the opportunities offered by this provision, because it will remain to be decided, whether this "contributing" should also take place
in the regulation of electronic communications networks
and services. Despite close ties between networks and
services and "content", the nature of this "contributing"
seems to indicate that it should take place only in the
process of "content" regulation. This will avoid the use
of more vague concepts in this area of regulation and –
by this virtue – the risk of being suspected of any arbitrariness.
4. Article 9 (3) reads: "Member States may make provision for undertakings to transfer rights to use radio
frequencies to other undertakings." Addressing all frequencies, to which the rights of use could be theoretically transferred, would go beyond the scope of the present
proposal, even though such transfer basically favours
a more effective (from the economic perspective) use of
scarce resources, in the case of the frequencies cur−
rently used to broadcast radio and television pro−
grammes, using the opportunities offered by the Di−
rective does not seem appropriate. Thus, the new Act
should distinguish between the individual rights to use
radio frequencies, depending on whether or not they
are used in traditional radio and TV broadcasting. But
these issues could be also resolved by deciding, that
while the option to transfer the right to use the frequencies would be allowed (subject to appropriate conditions
and procedures), one of the guidelines of regulatory policy with this regard would be clearly expressed opposition to any such attempts with regard to the broadcasting
frequencies.
5. Article 18 deals with the interoperability of interactive digital television services. To promote the free flow of
information, media pluralism and cultural diversity the
Member States should encourage:
a) providers of digital interactive television services for
distribution to the public in the Community on digital
interactive television platforms, regardless of the transmission mode, to use open APIs;
b) providers of all enhanced digital television equipment
deployed for the reception of digital interactive television services on interactive digital television platforms
to comply with an open API in accordance with the minimum requirements of the relevant standards or specifications. (Article 18 (1)).
The Member States should also encourage proprietors
of APIs to make available on fair, reasonable and nondiscriminatory terms, and against appropriate remuneration, all information that is necessary to enable the providers of digital interactive television services to provide all
services supported by the API in a fully functional form.
(Article 18 (2)).
Even though this Article is only about encouraging,
the issues involved are of such key importance, that the
Act should probably make such solutions mandatory. This
will contribute to an accelerated development of such
services and – at the same time – will prevent the unnecessary duplication of efforts in the area of infrastructure
and software.
6. Article 20 (2) reads: "Member States may make provision for national regulatory authorities to decline to
resolve a dispute through a binding decision where
other mechanisms, including mediation, exist and would
better contribute to resolution of the dispute in a timely
manner in accordance with the provisions of Article 8".
Indeed, such other mechanisms should be introduced,
including mediation, as they can really contribute to better and more effective dispute resolution. On the other
hand, the refusal to resolve a dispute cannot be a standard solution, providing only temporary relief from the
responsibility of the authorised body to resolve disputes.
The only consequence of the application of such a me-
7. As goes for the more general issues, which apply
to more than just electronic communications, which is
a source of doubts about whether these issues should
be regulated in the Act on electronic communications networks and services, the following issues deserve special attention. They are mentioned in the following articles of the Framework Directive:
• Article 3 (4) – co−operation between regulatory au−
thorities: even if only one electronic communications
regulator is established, as should be the case, there
remains the issue of co-operation with the antimonopoly body, i.e. the Office for Competition and Consumer Protection; this co-operation needs to be defined,
at least procedurally, to eliminate potential competition
for individual cases or, conversely, the refusal to handle specific cases;
• Article 4 (1) calls upon the Member States to ensure
that "effective mechanisms exist, under which any
user or undertaking (...) has the right of appeal to an
appeal body" – naturally, the Polish Code of Administrative Proceedings provides for the right to appeal
against any administrative decision, which might imply that the requirement of the Directive has already
been met. But the existence of a procedure is not tantamount to its effectiveness, especially in practice –
these procedures must be effective and also, there
must be means, which will prevent their protraction ad
infinitum;
• Article 5 (1) mandates the Member States to "ensure
that undertakings (...) provide all information." Making
this specific will be exceedingly tough and there is the
key issue of "business confidentiality" (Article 5 (3))
and although it will be difficult to judge in advance
what information falls into that category, it is necessary to implement procedures, which will make it possible to resolve disputes between regulatory authorities
and undertakings and will balance the commercial interests of the latter with the requirement of the transparency of the legislative process. Another issue to be
resolved is whether when a regulator requests infor-
mation, can anybody decide that the reasoning is insufficient and appeal against such a request?
• Article 5 (4) – public access to information – a Law
regulating these issues is now coming into force and it
will certainly be long before anybody is able to assess
its functioning in the area of regulation and in the regulation of electronic communications networks and services. Nonetheless, insofar as practical, the proposed
Act should at least emphasise the significance of regulatory transparency and the streamlining of the functioning of the individual markets;
• Article 6 – all decisions, which have significant impact
on the relevant markets should be consulted with the
interested parties. Transparency is one of the features of good regulation, as well as a measure of its effectiveness and efficiency – both the regulator and the
regulated must know their arguments and the other
party's counter-arguments to make sure those consultations are more than just a meaningless rite. Open
debate is also a conditio sine qua non for the development of optimal solutions and the balancing of often
contradictory interests. Consultation procedures must
be published and a single information point must be
established. The results must be made publicly available, except in the case of confidential information
(business confidentiality). However, this certainly does
not only apply to electronic communications networks
and services;
• Article 11 – the statement that the problem is broader
than only the issues related to electronic communications also applies to the rights of way. On the one
hand, this issue requires broader regulation than only
that applicable to electronic communications, but on
the other, even if we were to take the provisions of the
Framework Directive as a starting point for developing
such broader regulation, there will still remain no doubt, that such regulation will have to be much more
extensive and detailed;
• Article 12 – co−location and facility sharing – such activities should be promoted at least in the issues related to traditional radio and television, but one must still
remember that if co-operation between undertakings,
which compete or should compete, gets too close, they
may in certain situations end up by concluding more or
less formal anti-competitive arrangements.
3.2. Authorisation Directive
1. Article 3 (2) says that "An undertaking may be obliged to submit a notification, but may not be required to
obtain an explicit decision or any other administrative act
by the national regulatory authority before exercising the
rights stemming from the authorisation." As other articles
of this Directive make it clear, e.g. Articles 9 and 10 (1)
the existence of notification certainly facilitates the operation of the entire system and it is difficult to conceive
chanism would be to delay the resolution to the detriment
of the party, which will eventually be found to be aggrieved. Even though there will certainly be the right of appeal against an administrative decision to refuse the resolution of a dispute, but the procedure is not quick enough and, if the provision allowed by Article 20 (2) is
introduced, it will have to be subjected to the reservation,
that the refusal to pass a binding decision can be made
only upon the mutual agreement of the parties concerned and that authorised representatives of the regulatory authority should take part in mediation, who – if faced
with the lack of good intentions on the part of the parties
concerned – would have the right to terminate the alternative dispute resolution methods before the prescribed
time.
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another, equivalent solution. However, the imposition of
this obligation may not pave the way for bureaucratic
intervention, which would allow arbitrary ex post decisions on whether valid notification was made or imposing
excessive burden on the undertakings through the requirement to document information provided in the notification (information, which can be required, has been set out
in the Directive). Hence, the new Act or its executive provisions should specify such issues as the form, forms etc.
Using the Internet for notification purposes is certainly
worth recommending.
2. The system of authorisations and notifications, set
out in the Broadcasting Act should be adapted to this new
system and the implementation of the provisions of this
Directive could be a good opportunity to systematically
revise the entire system. In particular and in accordance
with Article 5, what needs to be revised are the principles
ruling the activities of the operators of broadcasting transmission and distribution systems, whether they hold individual authorisations or otherwise, to adapt them to the
structure: general licence - right of use. General licences
and the requirements connected to them will have to take
account of the specific nature of radio and television broadcasting. To the extent that authorisations for broadcasters include frequency bands, they will have to comply in
that part to other, more general principles applicable to the
granting of the rights of use, which will be established
during the implementation process.
3. The same Article 5 paragraph (2) mentions granting
the rights of use for a specific period and says that "the
duration should be appropriate for the nature of the service
concerned." What begs an answer is therefore the question:
"If radio and television broadcasting is the service concerned, then what is the appropriate duration for which the rights of use should be granted, considering the nature of the
service?" What needs to be taken into account is the practice to date, the reasoning behind it and experience with
this regard, both Polish and of the Member States, as well
as provision (5) of the same Article, which mentions "limiting the number of rights of use to be granted", because this
is precisely what is required to ensure the effective use of
the spectrum now used to broadcast radio and television
programmes, according to Article 7 (see below).
4. Article 7 deals with the procedure for limiting the
rights of use, which are to be granted for radio fre−
quencies – it seems that two approaches are possible
and the Directive, at least in this Article, does not settle
the matter of their choice: either to accept the status quo
and later start using new procedures for new rights of
use, or the revision of everything within some reasonable timeframe, with the holders retaining their earlier
acquired rights. This second option may appear very attractive, but its practical implementation, especially with
the need to assure that earlier obtained rights are retained, may prove rather complicated. A compromise solution would consist in the full application of the procedures upon the expiry of the rights of use.
5. The same article provides for two methods of the
granting of limited rights of use: competitive or comparative selection procedures. Now, if competitive is to
mean one-dimensional auctions, where the highest bidder is the winner, then with regard to the frequencies
currently used for the broadcasting of radio and television programmes one should opt for comparative selection procedures, i.e. procedures which compare the quality of the offers. As their practical application is never
free from controversies, the criteria could be submitted to
public discussion among the interested parties in each
such case, which would also enable the State to openly
formulate its policy with regard to individual cases.
6. Article 10 deals with issues concerning various vio−
lations of both the conditions of general licences and
the rights of use, and the ways to react to them, including the imposition of penalties. It's not about any excessive rigorism, but a regulator should opt for using penalties, while assuring effective appeal mechanisms and
preventing the abuse of penalties. Paragraph (6) is of
special significance, as in accordance with its provisions
"In cases of serious and repeated breaches of the conditions of the general authorisation, the rights of use or
specific obligations... national regulatory authorities may
prevent an undertaking from continuing to provide electronic communications networks or services or suspend
or withdraw rights of use". When implementing this paragraph one must note that the form in which this possibility is expressed has changed: regulatory authorities will
be able to, which means that law has to give them the
necessary powers.
7. Article 12 mentions "administrative charges" – in
the end it's about financing the activities of the regulatory authorities, which requires striking a balance between
providing regulatory authorities with adequate funding
and avoiding the imposition of excessive burden upon
undertakings and the simplicity of the entire system. Anyway, what the Directive proposes in sub-paragraph (a) is
rather complicated - on the face of it, it seems to eliminate soft budget constraints, but offers no chance to conduct lengthy investigations, employee training, etc. This
article does not settle the matter in favour of administrative charges, but only tries to counteract a situation, where they might become an important source of state-budget revenues. Thus, thinking about the broader issue of
the financing of national regulatory authorities, this issue
can be addressed without forejudging any solutions and
one might consider financing their activities with statebudget funds.
3.3. Universal Service Directive
The following deal with broadcasting in its narrow sense:
• Article 24 on the interoperability of digital television
equipment (which should be considered in conjunction with Annex VI), and
• Article 31 on the must carry obligation.
1. Article 24 is entitled (in the translation): Interopera−
bility of consumer digital television equipment. The article mandates the Member States to ensure the interoperability of consumer digital television equipment stipulated
in Annex VI to the Directive. As has been said before, the
method of ensuring remains the main problem. Ensuring
is certainly done with the use of certain legal measures,
which have a certain degree of obligatoriness (which allows enforceability) and it is precisely with these measures that the regulator's position should deal. The Article
itself is very terse, whilst the Annex is made up of two parts
dealing with the common scrambling algorithm, free-to-air
reception and the interoperability of analogue and digital
television sets.
2. Article 31 deals with the must carry obligation:
"Member States may impose reasonable must carry obligations, for the transmission of specified radio and television broadcast channels and services, on undertakings
under their jurisdiction providing electronic communications networks used for the distribution of radio or television broadcasts to the public where a significant number
of end-users of such networks use them as their principal means to receive radio and television broadcasts.
Such obligations shall only be imposed where they are
necessary to meet clearly defined general interest objectives and shall be proportionate and transparent. The
obligations shall be subject to periodical review." (Article
31 (2)).
As it is usual for the provisions, which offer the Member States certain possibilities, rather than impose obligations upon them, the problem appears whether these
possibilities should be used and if so, then how? Another complication arises out of paragraph 2 of this article,
which reads: "Neither paragraph 1 of this Article nor Article 3(2) of Directive 2002/19/EC (Access Directive)
shall prejudice the ability of Member States to determine
appropriate remuneration, if any, in respect of measures
taken in accordance with this Article while ensuring that,
in similar circumstances, there is no discrimination in the
treatment of undertakings providing electronic communications networks. Where remuneration is provided for,
Member States shall ensure that it is applied in a proportionate and transparent manner..." Unfortunately, due to
the manner in which the possibility of the imposition of
administrative charges is introduced (which is additionally conditional on the imposition of must carry), it is not
clear who should pay whom or how these charges should be fixed. It would appear that those who benefit from
the imposition of must carry should pay those, upon
whom this obligation is imposed.
All this leads us to a rather complex decision tree:
• do we need to introduce the must carry obligation?
• do we need to combine the implementation of must
carry with fees? and
• what fees these should be and how they should be
fixed? and, additionally
• to whom they should be paid?
On the basis of this decision tree one could propose
the following set of regulations: given that must carry will
apply only to public service broadcasters, financed with
public funds, paying for copyrights and related rights might be a form that these broadcasters could use to pay for
the transmission of programming under that obligation.
3. Article 33 mentions consultations between the par−
ties concerned. The Member States are to ensure "as
far as appropriate that national regulatory authorities take
account of the views of end-users, and consumers (including, in particular, disabled users), manufacturers, undertakings that provide electronic communications networks and/or services on issues related to all end-user
and consumer rights concerning publicly available electronic communications services, in particular where they
have a significant impact on the market. " (Article 33 (1)).
And later in (2): "Where appropriate, interested parties
may develop, with the guidance of national regulatory
authorities, mechanisms, involving consumers, user groups and service providers, to improve the general quality of service provision by, inter alia, developing and monitoring codes of conduct and operating standards." This
certainly involves more detailed telecommunications issues than broadcasting issues, but consultation mechanisms are no doubt a part of an effective regulatory system. But maybe it is possible to give TV viewers and radio listeners an opportunity to have their say about what
public TV and radio should be like and how much of it
they need. Do we need to have licence fees? If so, then
how are the revenues to be used?
4. Article 34 deals with out−of−court dispute resolu−
tion. According to this Article, the Member States are to
ensure: "that transparent, simple and inexpensive out-ofcourt procedures are available for dealing with unresolved disputes, involving consumers, relating to issues
covered by this Directive. Member States shall adopt
measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where
warranted, adopt a system of reimbursement and/or compensation. Member States may extend these obligations
to cover disputes involving other end-users". (Article 34
(1)). Here again, like in the case of the previous article
and of disputes mentioned in the provisions of the Framework Directive, the methods of the resolution of disputes between service providers (including satellite and
cable TV operators) and their customers (subscribers)
are a part of a system of effective regulation and the
bottom line is that we are talking about streamlining such
mechanisms and making them more effective. The Directive imposes only the border conditions and outlines the
possible directions where specific solutions may be found.
Among the more general issues of formal nature the
following are particularly noteworthy:
• Article 33 on consultations;
• Article 34 on out-of-court dispute resolution.
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3.4. Access and Interconnection Directive
As it is clear from the definitions provided in Article
2 of the Directive, the concept of interconnection - a twoway connection of networks - probably applies to telecommunications only, whilst the concept of access applies to both areas of electronic communications. Hence,
the regulator's position should concentrate on access,
which in Article 2 (in the corrected translation!), is defined as follows:
"access" means the making available of facilities and/
or services, to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the
purpose of providing electronic communications services.
It covers inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop);
access to physical infrastructure including buildings, ducts
and masts; access to relevant software systems including
operational support systems; access to number translation
or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; ac−
cess to conditional access systems for digital televi−
sion services; access to virtual network services.
Further down the same article we come across another "broadcasting" definition:
"wide−screen television service" means a television
service that consists wholly or partially of programmes
produced and edited to be displayed in a full height
wide-screen format. The 16:9 format is the reference format for wide-screen television services.
The Directive refers to both specifically "broadcasting"
access and to general access principles, which also apply to broadcasting networks and electronic communications services.
1. In the "Rights and obligations for undertakings" we
can read that "Public electronic communications networks
established for the distribution of digital television services shall be capable of distributing wide-screen television
services and programmes. Network operators that receive
and re-distribute wide-screen television services or programmes shall maintain that wide screen format"(Article 4
(2)). There isn't really much choice, but there may be serious problems with implementation and enforcement.
Also, it is not quite clear, which Act should deal with the
matter, especially if we abandon the idea of adopting a
Broadcasting Act having the same scope as the Directive.
2. Also the provisions of Article 5, which mandates regulatory authorities to "encourage and where appropriate
ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and interoperability of services, exercising their responsibility in a way
90
that promotes efficiency, sustainable competition, and gives the maximum benefit to end-users" certainly deal with
broadcasting. As usual, the problem will concern the operationalisation of these general requirements.
3. Further down the same Article we can read that
whether or not an undertaking has significant market
power (this needs to be checked!), national regulatory
authorities will be able to impose "obligations on undertakings ... to the extent that is necessary to ensure accessibility for end-users to digital radio and television
broadcasting services specified by the Member State,
obligations on operators to provide access to the other
facilities referred to in Annex I, Part II on fair, reasonable
and non-discriminatory terms." (Article 5). The reference
to facilities means APIs and EPGs. The structure of this
provision is not particularly clear, which may lead to problems with its implementation: there is the obligation to
offer the possibility, but a Member State may abstain from
specifying services. Hence, we have a practical question:
"Should Poland specify any services?" In the Broadcasting Act or by some other procedure?
4. Article 5 (2) offers certain possibilities: "When imposing obligations on an operator to provide access in
accordance with Article 12, national regulatory authorities may lay down technical or operational conditions
to be met by the provider and/or beneficiaries of such
access, in accordance with Community law, where necessary to ensure normal operation of the network." Paragraph (3) of the same article reminds us that "Obligations and conditions imposed in accordance with paragraphs 1 and 2 shall be objective, transparent,
proportionate and non-discriminatory, and shall be implemented in accordance with the procedure in Articles
6 and 7 of Directive 2002/21/EC (Framework Directive)".
As always in the case of implementation possibilities
offered by the directive, we must first answer the question
about whether or not Polish regulatory authorities should be able to lay down technical and operational requirements, or this should be left to free negotiations between the parties concerned.
5. All of Article 6 is devoted to conditional access
systems and other facilities. The requirements specified in Annex I, Part I must be met with regard to conditional access systems for television and radio services
broadcast to listeners and viewers in the territory of the
Community irrespective of the means of transmission.
6. In paragraph 3, Article 6 the Member States are given some room for manoeuvre. They may permit their
national regulatory authorities, as soon as possible after
the entry into force of this Directive and periodically thereafter, to review the conditions applied in accordance
with this Article, by undertaking a market analysis in accordance with Article 16, paragraph 1 of Directive 2002/
21/EC (Framework Directive) to determine whether to
maintain, amend or withdraw the conditions applied.
Where, as a result of this market analysis, a national re-
gulatory authority finds that one or more operators do not
have significant market power on the relevant market, it
may amend or withdraw the conditions with respect to
those operators, in accordance with the procedure in Articles 6 and 7 of Directive 2002/21/EC (Framework Directive). We should most certainly take advantage of this
chance and start carrying out the appropriate analyses
already now, so that the information thus obtained will
be ready for use in the drafting of the proposed Act.
7. Conditions applied in accordance with this Article
are without prejudice to the ability of Member States to
impose obligations in relation to the layout aspects of
electronic programme guides and similar listing and navigation facilities (4). The Article does not provide a basis for the imposition of these obligations. Anyway, the
right to intervention with this regard remains (or may
even be introduced). We only need to answer ourselves
whether, what for and how to intervene?
8. Article 8 deals with the imposition, modification
or withdrawal of obligations, which presupposes appropriate prior market analyses. An obligation may be
imposed once significant market power has been determined: "Obligations imposed in accordance with this
Article shall be based on the nature of the problem
identified, proportionate and justified in the light of the
objectives laid down in Article 8 of Directive 2002/21/
EC". So, we must inform about everything and every
manifestation of own initiative should be agreed with
the Commission and probably this needs to be included in the Act.
9. Article 11 – unfortunately, accounting separation
or requesting information are among issues, which have
been left to the discretion of the Member States. This
should be introduced in all cases dealing with interconnection and access, as well as obligation on access to
specific network facilities and the use thereof (Article
12) and price control (Article 13).
91
PROPOSED SOLUTIONS FOR THE BROADCASTING ACT AND THE TELECOMMUNICATIONS LAW IN CONNECTION
WITH THE EU ELECTRONIC COMMUNICATIONS PACKAGE 2003 WITH JUSTIFICATION
Anna Stre¿yñska
92
PART I.
Below I have proposed solutions for the individual issues, without reference to the directives or the so-called
"Guidance for the new Telecommunications Law" drawn
up by the Ministry of Infrastructure.
In the later part of the paper, the same proposals will
be put in the context of the directives and Guidance of
the Ministry of Infrastructure.
From the perspective of legislative rules, these proposals, if they will confer competences upon KRRiT, may
be included in either the new Telecommunications Law
or in the Broadcasting Act.
I. Authorisations for the Pursuit of Radio and
Television Broadcasting Activities
a) authorisations to operate telecommunications networks
Networks and services used to broadcast content in
radio or television transmission, e.g. satellite networks,
terrestrial networks or CATV networks will be all subjected to the regime of authorisations (i.e. registration of telecommunications activity). This solution is in line with
the directive, which mandates that the authorisation of
networks and services be separated from content. However, procedures dealing with the authorisation to broadcast content in radio and television transmission fall outside the scope of telecommunications regulation and
come within the scope of the Broadcasting Act.
An operator authorised with regard to networks or
electronic communications services, who at the same
time broadcasts content in radio or television transmission, may be mandated to fulfil additional requirements
relating to the transmitted content, derived from the Broadcasting Act, only to the extent these requirements relate to content broadcasting, rather than to the provision
of electronic communications services or networks (which
means the list of requirements on telecommunications
activities specified in the Framework Directive will be
observed).
would run contrary to the directive. The requirements
of the directive do not allow any restrictions on gene−
ral authorisations – actually, the authority does not
even need to produce any formal document, while the
directive itself describes the full scope of possible re−
quirements for the pursuit of such activities. On the
other hand, according to the directive, the influence of
regulations dealing with programme content on autho−
risations to pursue activities may be reflected in spec−
trum reservation and assignment procedures.
b) rights of use for radio frequencies
Granting rights of use for radio frequencies, i.e. frequency assignment, should be done through "open, nondiscriminatory and transparent procedures", but at the
same time "without prejudice to specific criteria and procedures adopted by Member States to grant rights of use
of radio frequencies to providers of radio or television
broadcast content services with a view to pursuing general interest objectives in conformity with Community
law (...)" (Article 5(2)) "Authorisation Directive".
Frequency assignments are usually made to telecommunications operators, but may be also made to broadcasters, who do not operate networks themselves and do not
provide services. In particular, an authority may grant the
right for the use of radio frequencies to broadcasters charged with broadcasting public service remit content to ensure such transmission. The Authorisation Directive stipulates in Article 6 that conditions may be attached to the
rights of use for radio frequencies, but such condition "shall
be objectively justified in relation to the service concerned,
non-discriminatory and transparent". An exhaustive list of
these conditions has been presented in Part B of the Annex to this Directive. In particular, these conditions cover
the "Designation of service or type of network or technology for which the rights of use for the frequency has been
granted, including, where applicable, the exclusive use of
a frequency for the transmission of specific content or specific audiovisual services" and "Any commitments which
the undertaking obtaining the usage right has made in the
course of a competitive or comparative selection procedure".
Section 1.01 Proposed Solution
Proposed Solution:
Despite the existence of a certain relationship be−
tween the totality of telecommunications authorisations
and authorisations related to programme content, it is
proposed that in the case of general authorisations,
obtained by registration of telecommunications activi−
ties, it be left to leave this institution a outside the sco−
pe of KRRiT's competence, as a different decision
The proposed solution with regard to spectrum reservations would presuppose that:
01. spectrum reservations would be made also for broadcasters, rather than only for operators, e.g. for
PSBs and, depending on the nature of the future
multiplex operators, for broadcasters whose programmes will be broadcast using that multiplex;
02. reservations would be made at the request of the
KRRiT Chairman, for both analogue and digital media;
Must carry obligations and remuneration therefor:
04. reservations will specify, whether a frequency may be
reassigned to another party on statutory terms set out
in the Broadcasting Act or in the relevant tender
(comparative selection procedure);
05. if frequencies are scarce, KRRiT will be competent
to announce and organise a tender (comparative selection procedure) for the reservation and programme licence together;
06. KRRiT shall set out the tender (comparative selection procedure) criteria: requirements on programme
content, methods designed to safeguard non-economic national interests related to culture, language
and media pluralism;
07. decisions on programme licences combined with reservations may include other arrangements derived
from comparative selection procedures or tender procedures, related to the Broadcasting Act (conditions
on programme content, methods intended to safeguard non-economic national interests, related to culture, language and media pluralism);
08. ommitments made by operators during a tender (comparative selection procedure) shall not be of financial
nature, but may have a general interest nature (e.g.
must carry) and shall preserve the equality of the parties and adequacy of commitments to rights;
09. KRRiT shall issue refusals to make individual reservations for individual broadcasters; a refusal shall be issued where granting a reservation could jeopardise
national security or public law and order, or violate international legal obligations, or obligations relative to
programme content derived from the Broadcasting Act;
10. reservations shall be withdrawn where an undertaking
using a frequency should violate its commitments relative to the reservation obtained (or conditions relating to the programme content, set out in a separate
administrative decision);
11. any disputes relating to the technical and economic
conditions of radio or television broadcasting between an operator, holding the frequency assignment and
a broadcaster authorised to distribute programmes
shall be settled in litigation, with URTiP acting in communication with KRRiT. If an arbitration panel, stipulated in the Guidance ..., is nominated, KRRiT shall designate its representatives to participate therein;
12. the above arrangements shall apply, as applicable,
to orbital resources.
01. KRRiT will draw up by ordinance a catalogue of programmes and types of broadcasters to which the must
carry obligation will apply.
02. The Chairman of KRRiT will issue ex officio a decision to any operator on whom the must carry obligation has been imposed, setting out the scope of that
obligation (programmes and additional services, e.g.
for the disabled) and its rights to remuneration therefor. Such a decision shall have to prove the following
premises:
• that specific objectives of general interest will be
implemented through the must carry obligation;
• that a large proportion of the users of these networks
use them as the main means of reception for radio
and television programmes (in such a case this obligation should be imposed upon all such networks,
to avert discrimination).
03. The implementation of these obligations shall be
subject to "periodic reviews" with regard to the undertakings obligated and their material scope, as well
as in the aspect of the actual realisation of broadcasters' rights.
04. In the first stage, the obligation to provide users with
access to public service radio and television programmes should be imposed on CATV and satellite
TV operators.
05. The Chairman of KRRiT may modify the scope of the
must carry obligation or the parties obligated, where
changes occurred in the market and it was established that other networks are widely used by the users
or that other programmes or services serve to implement objectives of general interest and should therefore be made accessible.
06. According to the directive, an operator on whom a must
carry obligation was imposed, may be remunerated. It
would be justified to adopt one of two possible solutions: that no remuneration shall be due for this obligation or that the fulfilment of that obligation be remunerated by the State in non-financial form, i.e. e.g. by
exemption from certain fees.
07. Remuneration, if provided, shall be provided and collected on non-discriminatory principles, through a transparent and justified procedure.
Proposed Solutions:
03. frequency reservations would be made together with
the award of programming licences;
08. Remuneration should be due if justified by the extent
of obligations under must carry (in some EU countries 50% or more of network capacity is allocated to
must carry channels, which has obvious financial
consequences).
93
09. The total cost of the must carry obligation will be estimated basing on network costs associated with the
provision of must carry channels (determined using
separate accounting) and benefits derived from the
performance of the must carry obligation (as for universal service).
10. One should also note the increasing scope of the
must carry obligation at the time of switchover
from analogue to digital TV – the scope of the
must carry obligation may increase twofold and
face the operators with a loss of capacity. Hence,
the must carry obligation should be imposed proportionately, without detriment to the operators.
According to the principle of proportionality, objectives and means must be selected in such a
way, as to avoid putting excessive burden on the
operators.
11. The ordinance stipulated above shall set out the scope of the obligation, methods of its performance and,
if appropriate, operators other than named above, on
whom this obligation will be imposed, as well as the
scope of additional services.
These obligations should be set out in the Broad−
casting Act.
II. Conditional Access Systems
Proposed Solution:
01. Essentially, conditional access system do not require obtaining an authorisation (according to the directive), but KRRiT may keep a registry of the systems
and of undertakings, which control them.
02. Irrespective of their market position and irrespective
or whether they deal only with manufacturing, operation of conditional access systems or use them also
to sell their own programme services, CAS operators
should have the obligation to:
• enable all providers of radio or television content to
use their conditional access system on fair, reasonable and non-discriminatory principles, if such a
provider must use a conditional access system to reach a prospective group of viewers or listeners with
pay broadcasts,
• keep separate accounts for that service activity.
03. The above rights shall fall to the providers of pay-TV
and radio programmes.
latter to supervise access to its services provided with
the use of the conditional access system.
06. Detailed terms and conditions for the use of conditional access systems shall be set out in negotiations.
Access principles shall be set out in agreements between TV platform operators and the operators of local access networks.
07. Holders of industrial property rights to conditional access products and systems shall have the obligation
to grant licences to manufacturers of consumer equipment (set-top boxes, digital receivers) used to receive digital broadcasts.
08. When granting licences to manufacturers of consumer equipment, holders of industrial property rights
to conditional access products and systems are to
ensure that this is done on fair, reasonable and nondiscriminatory terms.
09. Refusal to provide service using such systems or
unreasonable conditions of an offer therefor shall
give the provider of programme services concerned
the right to apply to KRRiT for the resolution of the
dispute.
10. Member States may restrict the range of undertakings
upon which such obligations may be imposed, which
is generally favoured by conditional access system
operators, because such duties typically apply to significant market power undertakings. A market analysis is
required in this context. The Act may authorise the Chairman of KRRiT to carry out such an analysis and restrict the catalogue of obligated undertakings by way of
an ordinance, or by the imposition of the obligation by
way of individual decisions. In such case the general
conditions for the imposition of access obligations set
out in Articles 8-13 of the Access Directive shall apply.
11. Withdrawing or restricting the obligations of conditional access systems shall not restrict end-users' access to programmes benefiting from the must carry
obligation. Furthermore, this should have no adverse impact on competition.
12. Restricting or withdrawing requirements on conditional access systems shall be subject to national consultation procedures, as prescribed in Article 6 of the
Framework Directive and at the EU level (Article
7 of the Framework Directive).
13. KRRiT shall settle any disputes. This is purely a
media, rather than telecommunications law issue and
thus, only KRRiT should be competent therefor.
04. Obligations shall be imposed by individual decisions.
05. Conditional access systems are to have the necessary technical capability for cost effective transcontrol by the access network operator, i.e. enabling the
94
III. Provisions on Electronic Programme Guides and Ap−
plication Programme Interfaces (exception with regard to
proportionality of obligations regarding access)
1. Essentially, associated facilities do not require authorisation (according to the directive), but optionally:
KRRiT may keep a registry of such systems and undertakings, which control them.
2. All operators of associated facilities have the obligation to provide access thereto on fair, reasonable and
non-discriminatory principles:
• only with regard to APIs and EPGs;
• only to ensure end-users' access to radio and television services specified by a Member State;
• keeping separate accounts for that service activity.
3. The Chairman of the KRRiT shall specify radio and television services which must be accessible to end-users'
using such equipment or, to which access requires the
use of associated facilities such as APIs or EPGs.
Obligations shall be imposed by individual decisions.
4. The Chairman of the KRRiT shall set out by way of
ordinance a timetable for the implementation of an
open programme interface (API) conforming to the
specifications set out by European standards bodies,
taking account of the recommendations of European
standards bodies and the capabilities of system operators, as well as of consumers' needs.
5. Access shall be provided on contractual basis - fair,
reasonable and non-discriminatory conditions. Refusal to provide service using such systems or unreasonable conditions of an offer therefor shall give the provider of programme services concerned the right to apply to KRRiT for the resolution of the dispute.
6. KRRiT shall settle any disputes.
7. Remaining principles as for conditional access systems.
IV. Access to Distribution Networks and Infrastructure
and to Operational Support Systems for Broadcasters
and Content Providers, excluding Associated Facilities
(CAS, EPG, API)
Proposed Solution:
Duties relative to the establishment of access by litigation, supervision over fulfilment of duties relative to
accountancy and calculation, price controls and approval of access rates, the enforcement of the obligation to
apply the reference access offer in matters relating to
access, approval and modifications to the offer, if required with regard to undertakings whose market power
has been assessed on the relevant media markets, shall
be carried out by the President of URTiP acting in communication with KRRiT and, from the moment arbitration
panels have been formed – by these panels, in which
KRRiT shall have its representatives.
Disputes arising out of access to associated facilities
should be settled exclusively by KRRiT.
V. Markets ex ante relevant for the Media
Generally speaking, regulation will apply to statutorily
defined telecommunications markets, where there is no
effective competition. Service markets will be regulated
with regard to network access and network interconnection (wholesale markets), as well as markets of services
for end-users (retail markets). Regulatory obligations
shall be imposed upon telecommunications undertakings
having significant market power on regulated markets.
Regulatory obligations shall be imposed upon telecommunications undertakings, which do not have significant
market power, only in situations set out in the future Law.
Only one market out of the 18 markets defined by the EU
concerns the media: the market of radio and television
broadcasting. Subject to EU approval, a Member State
may define other markets.
According to the draft Law, the President of URTiP
shall carry out analyses of radio and television broadcasting markets, impose, maintain, amend or withdraw regulatory obligations on that market in communication with
the Chairman of KRRiT. There shall be no appeal against the decisions of the KRRiT Chairman relative to these matters. According to the draft, the definition of a market, assessment of market power and imposition of obligations is to be done in a single decision. Some of these
activities are to be carried out in communication with the
Chairman of KRRiT.
Proposed Solution:
1. Markets, as well as the way in which they are analysed and in which market power is assessed, shall be
defined with KRRiT's active participation. The ordinance on markets and their analysis shall be published in
communication with KRRiT and the Ministry of Infrastructure.
2. Market analyses, analysis updates, assessment of
market power, the determination of the mix of their obligations in individual decisions, or their limitation or
withdrawal, shall be done by KRRiT, or at least in communication with KRRiT.
VI. Interoperability of Analogue and Digital Televi−
sion Services and TV Sets – Standards
Proposed Solution:
Essentially, standardisation is implemented through
voluntary standards. KRRiT should draw up a list of such
standards and, if appropriate, such standards should be
set out as voluntary standards, in accordance with the
requirements of European standards bodies and directives (Articles 18 and 24 of the Framework Directive and
Proposed Solution:
95
Annex to Access Directive) and with regard for consumer
interests. According to the provisions of Article 17 of the
Framework Directive, the European Commission may
make the implementation of certain European standards
compulsory.
96
Furthermore, to promote competition or protect consumer interests, the President of URTiP may, without any
consultation procedure, make a decision on the regulation of a market for a period not exceeding 6 months.
After such time, the President of URTiP must either withdraw the measure or impose it in compliance with the
rules of the consultation procedure.
VII. Wide−screen TV
Proposed Solution:
1. Network operators that receive and re-distribute widescreen television services or programmes shall retain
that format.
2. The Law may provide for a later entry into force of this
provision.
Changes with this regard should be derived from
amendments to other regulations. If the Chairman of
KRRiT takes over the duties relative to the assessment
of market power and imposition of regulatory obligations,
this provision with regard to KRRiT shall be confined to
decisions having significant influence on telecommunications markets or stipulated in the Law.
PART II
VIII. Regulatory Body and its Competences
Proposed Solution:
As the proposal to establish a single, integrated authority has not found favour with the legislator, we can
propose as an alternative, the operation and co-operation of two authorities - the President of URTiP and the
Chairman of KRRiT, with KRRiT's competences being
retained for media-specific duties and its right to act in
communication, in cases where electronic communications law will be applied to undertakings operating in
pursuance of the Broadcasting Act. The principles dealing with their functioning in regard to key issues have
been presented above.
Consultation Procedure
The draft Law introduces the so-called "consultation
procedure". According to the proposed provisions, before making a decision on matters of:
1. market analysis and designation of significant market
power;
2. imposition of regulatory obligations on SMP operators;
3. decisions having significant influence on telecommunications markets;
4. stipulated in the Law,
the President of URTiP shall institute a consultation procedure, offering all stakeholders the opportunity to present
their positions on the draft decision by a certain deadline.
This regulation results from the take-over of the above
obligations by the President of URTiP. The Chairman of
KRRiT has been recognised as one of the "stakeholders",
in the case of radio and television broadcasting markets.
The Chairman of KRRiT shall have 30 days to submit his
opinion on the contemplated measure. However, the Law
does not make it clear what is done with his position or
what is the relationship between his position and situations, where the President of URTiP is acting in communication of the KRRiT Chairman or takes his opinion.
The following part of the study offers proposed solutions shown in the context of the provisions of the directives and Guidance for the new Telecommunications
Law.
I. Authorisations for the Pursuit of Radio and Televi−
sion Broadcasting Activities
Directive:
1. There is nothing in this Directive to prevent the assignment of radio frequencies directly to undertakings
providing electronic networks or services, or to undertakings using these networks or services. Radio or television broadcasters may well be such undertakings.
Irrespective of the detailed criteria and procedures
adopted by the Member States for awarding rights of
use for radio frequencies to radio and television broadcasters, in order to pursue general interests in compliance with the Community law, the procedure of the
assignment of radio frequencies should at all times be
objective, open, non-discriminatory and proportionate.
According to the rulings of the Tribunal of Justice, any
restrictions of rights granted under Article 49 of the Treaty, should be objectively justified, proportionate and
never exceed what is necessary for the pursuit of general interests, as set out by the Member States in
compliance with the rules of Community law. Responsibility for compliance with the requirements, which
must be fulfilled in connection with the assignment of
rights for the use of radio frequencies and with the applicable provisions of general authorisations should at
all times rest with the operator, who had obtained such
an assignment.
2. Under the procedures foreseen for the award of rights
for the use of radio frequencies, Member States can
check whether the applying undertaking will be able
to meet the requirements arising out of such award.
To this aim, the applicant can be requested to submit
3. General authorisations should contain only those requirements, which are applicable to the sector of electronic communications. They should not be subjected to
requirements, which are already applied on the basis
of other, existing regulations of domestic law, which are
not applicable to the sector of electronic communications. Nonetheless, national regulatory authorities may
inform network operators and service providers about
other legal regulations dealing with their activities, e.g.
by posting information on websites.
4. One and the same operator, e.g. a CATV operator, may
offer both electronic communications services, such as
the transmission of television signals and services remaining outside the scope of the present Directive,
such as the distribution of offers for services consisting
in the broadcasting of audio and television programmes, and so, additional obligations may be imposed
upon such operator in connection with its activities as
a broadcaster or distributor, in accordance with regulations other than those contained in the present Directive, without any prejudice to the requirements stipulated in the list provided in the Annex to the present
Directive.
5. Laying down criteria used in selection procedures conducted in accordance with competition rules, national
regulatory authorities should ensure the implementation
of objectives stipulated in Article 8 of Directive 2002/21/
EC (Framework Directive). However, the application of
objective, non-discriminatory and proportionate selection
criteria to promote competition, ultimately leading to the
exclusion of some operators from selection procedures
of the assignment of specific radio frequencies conducted in compliance with the competition rules, shall in no
way violate the provisions of the present Directive.
(i) Annex to the Directive
A. Conditions, which may be attached to rights for
the use of radio frequencies
1. Designation of a service, or network type or technology,
for which the right for the use of a particular frequency
was granted including, where appropriate, the exclusive
right to use that frequency for the broadcasting of specific content or specific audiovisual programmes.
2. Efficient use of radio frequencies in accordance with the
provisions of Directive 2002/21/EC (Framework Directive) including, if appropriate, conditions on coverage.
3. Technical and operational requirements necessary to
avoid harmful interference and limit the exposure of
the general population to the operation of electromagnetic fields, if such requirements differ from those set
out in the general authorisation.
4. Maximum duration in accordance with Article 5 of said
Directive and changes in the national frequency assignment plan.
5. Transfer of the rights at the request of the authorised
undertaking, in accordance with the provisions of Directive 2002/21/EC (Framework Directive).
6. Fees for use as per Article 13 of the present Directive.
7. All commitments made during the selection procedure
conducted in accordance with the rules of comparative selection by the operator to whom a right for use
has been granted.
8. Obligations derived from relevant international agreements on the use of radio frequencies.
Conclusions from Community Law:
An undertaking providing electronic communica−
tions networks or services, which at the same time
transmits content in radio or television transmission,
may face the need to meet additional conditions ap−
plicable to the content transmitted, derived from na−
tional or Community law on radio and television bro−
adcasting (according to the "Television without Fron−
tiers" Directive 89/552/EC), as long as such
conditions are relevant to the transmission of content,
rather than to the provision of services or electronic
communication networks.
Granting rights of use for radio frequencies, i.e. frequency assignment153, should be done through "open, nondiscriminatory and transparent procedures", but at the
same time "without prejudice to specific criteria and procedures adopted by Member States to grant rights of use
of radio frequencies to providers of radio or television
broadcast content services with a view to pursuing general interest objectives in conformity with Community
law (...)" (Article 5(2) (Authorisation Directive).
Specific Features Identified:
a) the way the influence of the content component is taken into account in the application of regulations dealing with electronic communications, e.g. on authorisation and frequency assignment issues (conditions
attached to network deployment and provision of elec-
appropriate information to demonstrate its ability to
meet said requirements. If such requested information
is not submitted, the application for the award of rights
for the use of radio frequencies may be rejected.
153
Granting the rights of use is tantamount to frequency assignment, i.e. authorisation to use radio spectrum frequencies on such conditions, as have been specified.
97
tronic communications services and/or rights of use for
radio frequencies may to a certain extent be related to
the programme content),
b) the way non-economic national interests related to
culture, language and media pluralism are taken into
account, e.g. in frequency assignments,
c) assigning frequencies directly to broadcasters, rather
than to operators.
Who does this regulation apply to?
This regulation applies to undertakings broadcasting
(including multiplex operators) or distributing programmes. According to the existing law and to the draft Law,
such activity requires authorisation in pursuance of the
Broadcasting Act (licence or entry in a registry) and authorisations to use broadcasting equipment and telecommunications networks or frequencies.
Nowadays, an operator distributing programmes wishing to register must have a telecommunications authorisation.
a) authorisations to operate telecommunications networks
Guidance for the new Telecommunications Law
1.1.1. General authorisations. Activities consisting in
the provision of telecommunications networks and telecommunications services shall require a general authorisation and shall be pursued by telecommunications undertakings subject to prior notification to the President of
URTiP and compliance with provisions set out in the Law.
Proposed Solution:
Despite the existence of a certain relationship between the totality of telecommunications authorisations and
authorisations related to programme content, it is proposed that in the case of general authorisations, obtained
by registration of telecommunications activities, this institution be left outside the scope of KRRiT competence, as
a different decision would run contrary to the directive.
The requirements of the directive do not allow any restrictions on general authorisations - actually, the authority
does not even need to produce any formal document,
while the directive itself describes the full scope of possible requirements for the pursuit of such activities. On the
other hand, according to the directive, the influence of
regulations dealing with programme content on authorisations to pursue activities may be reflected in spectrum
reservation and assignment procedures.
b) rights of use for radio frequencies
1.1.2. Individual frequency reservations. Telecommunications undertakings and other persons or organisational units, whose activities involve the use of frequencies,
98
will be able to apply for individual reservations, which will
authorise them to use frequencies for purposes related to
the granting of radio permits. The President of URTiP will
grant individual reservations within 6 weeks of the filing of
the motion, unless a tender procedure or comparative
selection procedure is applied, or where international coordination is required. Reservations shall be made in a
manner compliant with the National Frequency Allocation
Table, harmonised frequency allocations in force in the EU,
with the existing frequency management plan and shall
not collide with already existing individual authorisations
or lead to inefficient use of frequencies. Applications shall
be refused where the applicant could not fulfil general or
individual obligations related to the use of frequencies, or
where granting a reservation could jeopardise national
security or public law and order, or violate international
legal obligations, or obligations relative to programme
content derived from the Broadcasting Act. A party authorised in pursuance of an individual reservation will be
entitled to request the award of radio permits, using the
frequency resource covered by the reservation during the
period of its validity. Reservations will be made for a fixed
period of time, with possible renewal without tender. A
reservation may set out the type of network, service or telecommunications technology. Moreover, reservations
may lay down other conditions necessary for the award of
a radio permit. Reservations will stipulate whether or not
frequencies may be transmitted to other parties subject to
statutory conditions being observed. Reservations may include other arrangements resulting from comparative selection or tender procedures or from international obligations, as well as protective requirements dealing with electromagnetic radiation and harmful interference. A single
reservation may be made in favour of several users of
radio frequencies.
1.1.3. Reservations for the purposes of radio and te−
levision broadcasting. Reservations for the purposes of
radio and television broadcasting shall be made in communication with KRRiT on matters dealing with the utilisation of the capacities of transmission systems, transmission obligations and other issues impacting programme
distribution. Individual reservations for broadcasters, for
the purposes of analogue radio or television transmission,
will be made by the Chairman of KRRiT, in communication with the President of URTiP on technical issues. Such
reservations shall specify the programme or programmes
to be broadcast, or the assignment of frequencies for the
broadcasting or distribution of programmes. Any disputes
relating to the technical and economic conditions of radio
or television broadcasting between an operator, holding
the frequency assignment and a broadcaster authorised
to distribute programmes shall be settled in litigation, with
URTiP acting in communication with KRRiT.
1.1.4. Tender or comparative selection procedu−
res. If frequency resources are scarce, or there is a
number of applications for the same frequency, the President of URTiP shall hold consultations and thereafter,
order a tender or comparative selection to be held la-
test within 6 months from the receipt of the first application. The President's order to the effect, accompanied
by a justification, shall be published in the URTiP Bulletin. In ordering a comparative selection the President
of URTiP shall lay down the criteria for the selection of
the applicant, who will be granted an individual reservation. Comparative selections in matters relating to
radio frequencies allocated to radio and television
transmission will be always ordered in communication
with KRRiT. Where a tender should be held, an individual reservation will be granted to the participant who
will make the highest bid for the reservation. In ordering a procedure to be held the President of URTiP may
exclude those categories of telecommunications undertakings, whose participation therein could cause problems in the development of competition. Such procedures shall be completed within 8 months. The Minister
competent for communications will set out the modalities of comparative selection or tendering procedures,
ensuring that decisions are non-discriminatory, based
on objective premises and transparent.
1.1.5. Transferring rights of use. Transferring the rights of use for radio frequencies to another party shall be
allowed in situations stipulated in the Law, on the basis of
earlier agreed conditions on the use of such frequencies.
In the event of company transformation, division or merger, or other cases of general legal succession, the rights
derived from an individual reservation will pass on to the
legal successor, irrespective of the date of issue of the
original decision authorising, in pursuance of a decision
of the President of URTiP confirming, at the request of the
party concerned, the acquisition of rights derived from the
frequency reservation. In all other cases, the transfer of
rights to frequencies, if allowed in the reservation, will require the prior approval of the President of URTiP, which
may be granted on the basis of an evaluation of the technical and market consequences of the change of the frequency holder. When issuing a confirming decision or
approval, the President of URTiP may lay down, to the
necessary extent, additional conditions for the use of the
radio frequencies by their new holder.
1.1.6. Modifying an individual reservation. A reservation may be modified without the approval of the authorised party, if there is harmful interference, or when it
should prove necessary for a significant improvement in
the efficiency of spectrum use.
1.1.7. Withdrawal of an individual reservation. An
individual reservation may be withdrawn where the
frequencies remained unused for a period of one
year, where their use has been discontinued or circumstances have occurred, which prevent assignment
or in the event of repeated or persistent violations of
the conditions for the use of frequencies or of the
obligation to pay fees. All withdrawals or modifications
or reservations related to radio or television transmission will be made at the request or in communication
with KRRiT.
1.1.8. Managing orbital resources. The President of
URTiP shall perform duties related to ensuring domestic
users’ orbital positions for artificial satellites and frequencies necessary for their operation, including the notification and co-ordination of satellite systems, and will
make assignments of orbital positions and frequencies,
in pursuance of, as applicable, the regulations on frequency assignments and taking account of public interest
requirements (security, defence).
Section 1.02 Proposed Solution
The solution proposed with regard to frequency reservations would presuppose that:
01. spectrum reservations would be made also for broadcasters, rather than only for operators, e.g. for
PSBs and, depending on the nature of the future
multiplex operators, for broadcasters whose programmes will be broadcast using that multiplex;
02. reservations would be made at the request of the
KRRiT Chairman, for both analogue and digital media;
03. frequency reservations would be made together with
the award of programming licences;
04. reservations will specify, whether a frequency may be
reassigned to another party on statutory terms set out
in the Broadcasting Act or in the relevant tender
(comparative selection procedure);
05. if frequencies are scarce, KRRiT will be competent
to announce and organise a tender (comparative selection procedure) for the reservation and programme licence together;
06. KRRiT shall set out the tender (comparative selection procedure) criteria: requirements on programme
content, methods designed to safeguard non-economic national interests related to culture, language
and media pluralism;
07. decisions on programme licences combined with reservations may include other arrangements derived
from comparative selection procedures or tender procedures, related to the Broadcasting Act (conditions
on programme content, methods intended to safeguard non-economic national interests, related to culture, language and media pluralism);
08. commitments made by operators during a tender
(comparative selection procedure) shall not be of financial nature, but may have a general interest nature (e.g. must carry) and shall preserve the equality of
the parties and adequacy of commitments to rights;
09. KRRiT shall issue refusals to make individual reservations for individual broadcasters; a refusal shall be
issued where granting a reservation could jeopardise
99
national security or public law and order, or violate international legal obligations, or obligations relative to
programme content derived from the Broadcasting Act;
10. reservations shall be withdrawn where an undertaking
using a frequency should violate its commitments relative to the reservation obtained (or conditions relating to the programme content, set out in a separate
administrative decision);
11. any disputes relating to the technical and economic
conditions of radio or television broadcasting between an operator, holding the frequency assignment and
a broadcaster authorised to distribute programmes
shall be settled in litigation, with URTiP acting in communication with KRRiT. If an arbitration panel, stipulated in the Guidance ... is nominated, KRRiT shall designate its representatives to participate therein;
12. the above arrangements shall apply, as applicable,
to orbital resources.
II. Must carry obligations and remuneration therefor
Section 1.03 Authorisation Directive
B. Conditions, which may be attached to general
authorisations
(...) The must carry obligation in accordance with the provisions of Directive 2002/22/EC (Universal Service Directive).
Universal Service Directive
1. Currently, Member States impose certain must carry
obligations on networks for the distribution of radio or
television broadcasts to the public. Member States should be able to lay down proportionate obligations on
undertakings under their jurisdiction, in the interest of
legitimate public policy considerations, but such obligations should only be imposed where they are necessary to meet general interest objectives clearly
defined by Member States in conformity with Community law and should be proportionate, transparent and
subject to periodical review. Must carry obligations
imposed by Member States should be reasonable, that
is they should be proportionate and transparent in the
light of clearly defined general interest objectives, and
can, where appropriate, entail a provision for proportionate remuneration. Such must carry obligations may
include the transmission of services specifically designed to enable appropriate access by disabled users.
Article 31
and television broadcast channels and services, on
undertakings under their jurisdiction providing
electronic communications networks used for the
distribution of radio or television broadcasts to the
public where a significant number of end-users of
such networks use them as their principal means
to receive radio and television broadcasts. Such
obligations shall only be imposed where they are
necessary to meet clearly defined general interest
objectives and shall be proportionate and transparent. The obligations shall be subject to periodic
review.
2. Neither paragraph 1 of this Article nor Article 3(2) of
Directive 2002/19/EC (Access Directive) shall prejudice the ability of Member States to determine appropriate remuneration, if any, in respect of measures taken in accordance with this Article while ensuring that, in similar circumstances, there is no
discrimination in the treatment of undertakings providing electronic communications networks. Where
remuneration is provided for, Member States shall
ensure that it is applied in a proportionate and transparent manner.
Conclusions from Community Law:
Must carry rules ensure that certain specified radio
and TV transmission channels shall be provided to all
users on universal access principles. The provisions
of Article 31 of the Universal Service Directive aim to
ensure that this obligation is "reasonable". These obligations "shall only be imposed where they are necessary to meet clearly defined general interest objectives and shall be proportionate and transparent".
The obligations shall be subject to periodic review.
Member States may "determine appropriate remuneration, if any, in respect of measures taken in accordance with this Article while ensuring that, in similar
circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks. Where remuneration is provided for,
Member States shall ensure that it is applied in a proportionate and transparent manner".
Must carry obligations may be imposed on " electronic communications networks used for the distribution of radio or television broadcasts to the public
where a significant number of end-users of such networks use them as their principal means to receive
radio and television broadcasts". The list of such networks includes cable, satellite and terrestrial broadcasting networks, but may "also include other networks where a significant number of end-users of
such networks use them as their principal means to
receive radio and television broadcasts".
Must Carry Obligations
1. Member States may impose reasonable must carry
obligations, for the transmission of specified radio
100
Must carry obligations may include the transmission of
services adapted in such a way, as to enable access by
disabled users.
a. scope of the obligation,
b. method of remuneration (general interest).
this obligation or that the fulfilment of that obligation
be remunerated by the State in non-financial form, i.e.
e.g. by exemption from certain fees.
07. Remuneration, if provided, shall be provided and collected on non-discriminatory principles, through a transparent and reasonable procedure.
2.1. Regulations in the Broadcasting Act. The administration of multiplex capacity for transmission purposes, programmes transmitted under must carry obligations and potential remuneration for such obligations and
EPG layout are regulated by the Broadcasting Act and
shall remain the exclusive regulatory and supervisory
competence of KRRiT.
08. Remuneration should be due if justified by the extent
of obligations under must carry (in some EU countries 50% or more of network capacity is allocated to
must carry channels, which has obvious financial
consequences).
Proposed Solutions:
01. KRRiT will draw up by ordinance a catalogue of programmes and types of broadcasters to which must
carry obligations will apply.
02. The Chairman of KRRiT will issue ex officio a decision to any operator on whom the must carry obligation has been imposed, setting out the scope of that
obligation (programmes and additional services, e.g.
for the disabled) and its rights to remuneration therefor. Such a decision shall have to take account of the
following premises:
• that specific objectives of general interest will be implemented through the must carry obligation;
• that a large proportion of the users of these networks use them as the main means of reception
for radio and television programmes (in such a
case this obligation should be imposed upon all
such networks, to avert discrimination).
03. The implementation of these obligations shall be
subject to "periodic reviews" with regard to the
scope and obligated undertakings, as well as in
the aspect of the actual realisation of broadcasters' rights.
04. In the first stage, the obligation to provide users with
access to public service radio and television programmes should be imposed on CATV and satellite
TV operators.
05. The Chairman of KRRiT may modify the scope of
must carry obligations or undertakings obligated
thereunder, where changes occurred in the market and it was established that other networks are
widely used by the users or that other programmes or services serve to implement objectives of
general interest and should therefore be made
accessible.
06. According to the directive, an operator on whom a
must carry obligation was imposed, may be remunerated. It would be justified to adopt one of two possible solutions: that no remuneration shall be due for
09. The total cost of the must carry obligation will be estimated basing on network costs associated with the
provision of must carry channels (determined using
separate accounting) and benefits derived from the
performance of the must carry obligation (as for universal service).
10. One should also note the increasing scope of the
must carry obligation at the time of switchover
from analogue to digital TV – the scope of the
must carry obligation may increase twofold and
face the operators with a loss of capacity. Hence,
the must carry obligation should be imposed proportionately, without detriment to the operators.
According to the principle of proportionality, objectives and means must be selected in such a
way, as to avoid putting excessive burden on the
operators.
11. The ordinance stipulated above shall set out the scope of the obligation, methods of its performance and,
if appropriate, operators other than named above, on
whom this obligation will be imposed, as well as the
scope of additional services.
III. Conditional Access Systems
Section 1.04 Directive
Directive 95/47/EC set out the legal framework for the
nascent digital television industry. This framework, in
particular the requirement to provide conditional access
on fair, reasonable and non-discriminatory terms, should
be retained to ensure access to a broad range of programming and services.
Member States may also permit their national regulatory authorities to review obligations in relation to conditional access to digital broadcasting services in order to
assess through a market analysis whether to withdraw or
modify conditions for operators that do not have significant market power on the relevant market. Such withdrawal or amendment should not adversely affect access for
end-users to such services or the prospects for effective
competition.
Identified problems:
101
102
Section 1.05
Exceptionally, in order to comply with international
commitments or Community law it may be appropriate
to impose obligations for access or interconnection on
all market players, as is currently the case for conditional access systems for digital television services.
a result of this market analysis, a national regulatory
authority finds that one or more operators do not have
significant market power on the relevant market, it may
modify or withdraw the conditions with respect to those operators, in accordance with the procedure in Articles 6 and 7 of Directive 2002/21/EC (Framework Directive), only to the extent that:
Article 6
Conditional access systems and other facilities
1. Member States shall ensure that, in relation to conditional access to digital television and radio services
broadcast to viewers and listeners in the Community,
irrespective of the means of transmission, the conditions laid down in Annex I, Part I apply.
2. In the light of market and technological developments,
Annex I may be amended in accordance with the procedure referred to in Article 14(3).
3. Notwithstanding the provisions of paragraph 1, Member States may permit their national regulatory authorities, as soon as possible after the entry into force of
this Directive and periodically thereafter, to review the
conditions applied in accordance with this Article, by
undertaking a market analysis in accordance with Article 16, paragraph 1 of Directive 2002/21/EC (Framework Directive) to determine whether to maintain, modify or withdraw the conditions applied. Where, as
a) accessibility for end-users to radio and TV broadcasts and broadcasting channels and services specified in accordance with Article 31 of Directive 2002/
21/EC (Framework Directive) will not be adversely
affected by such amendment or withdrawal; and
b) the prospects for effective competition in the markets
for:
i) retail digital television and radio broadcasting services, and
ii) conditional access systems and other associated
facilities will not be adversely affected by such
amendment or withdrawal.
An appropriate period of notice shall be given to parties
affected by such amendment or withdrawal of conditions.
4. Conditions applied in accordance with this Article are
without prejudice to the ability of Member States to
impose obligations in relation to the layout of electronic programme guides and similar listing and navigation facilities.
ANNEX I to Directive
CONDITIONS FOR ACCESS TO DIGITAL TELEVISION
AND RADIO SERVICES BROADCAST TO VIEWERS
AND LISTENERS IN THE COMMUNITY
Part I Conditions for conditional access systems to be
applied in accordance with Article 6(1).
In relation to conditional access to digital television
and radio services broadcast to viewers and listeners in
the Community, irrespective of the means of transmission, Member States must ensure in accordance with
Article 6 that the following conditions apply:
a) conditional access systems operated on the market in the
Community are to have the necessary technical capability for cost effective transcontrol allowing the possibility for
full control by network operators at local or regional level
of the services using such conditional access systems;
b) all operators of conditional access services, irrespective of the means of transmission, who provide access
services to digital television and radio services and on
whose access services, broadcasters depend to reach
any group of potential viewers or listeners are to:
– offer to all broadcasters, on a fair, reasonable and
non-discriminatory basis compatible with Community competition law, technical services enabling
the broadcasters' digitally-transmitted services to be
received by viewers or listeners authorised by means of decoders administered by the service operators, and comply with Community competition law,
– keep separate financial accounts regarding their
activity as conditional access providers.
c) when granting licences to manufacturers of consumer
equipment, holders of industrial property rights to conditional access products and systems are to ensure
that this is done on fair, reasonable and non-discriminatory terms. Taking into account technical and commercial factors, holders of rights are not to subject the
granting of licences to conditions prohibiting, deterring
or discouraging the inclusion in the same product of:
– a common interface allowing connection with several other access systems, or
– means specific to another access system, provided
that the licensee complies with the relevant and reasonable conditions ensuring, as far as he is concerned, the security of transactions of conditional
access system operators.
Section 1.06 Conclusions from Community Law
Conditional access systems have been defined in Article 2, letter f) of the Framework Directive as "any techni-
cal measure and/or arrangement whereby access to
a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or
other form of prior individual authorisation." In other terms,
conditional access systems make it possible to collect fees
for access to descrambled audiovisual transmission.
Both Directive 95/47/EC on the use of standards for
the transmission of television signals, and the current
regulatory framework, allow the use of individually designed conditional access systems, but at the same time,
they promote the connection of different conditional access systems to receivers and the use of an open, harmonised conditional access standard. Competing television platforms currently use different conditional access
systems, which is a serious impediment for consumers
and a barrier to market growth. The process of transition
towards a common standard may take relatively long.
As goes for conditional access, the fundamental measures dealing with conditional access systems set out
in Directive 95/47/EC have been transferred to the Access Directive (Article 6 and Annex I, Part I)154. The most
important provisions with this regard are following:
– with regard to conditional access systems operators
are required to provide services to other providers on
"fair, reasonable and non-discriminatory terms" and to
grant licences to industrial property rights on the same
principles; moreover, cost effective transcontrol allowing the possibility for full control by network operators at local or regional level of the services using
such conditional access systems should be assured.
Comparing with the general access regime, the conditional access system regime applies to all service providers, rather than only to SMP providers.
In addition to the above provisions, Member States
have the right to authorise their regulatory authorities to
withdraw that condition, after having carried out a market
analysis, in accordance with the provisions of Article 16
of the Framework Directive. The latter Directive may specify, whether to maintain, modify or withdraw conditions
applicable to non-SMP operators, subject to the application of consultation procedures and transparency. (Articles 6 and 7 of the Framework Directive).
Before withdrawing an obligation, a regulatory authority should ascertain that such modifications or withdrawal shall not entail any negative consequences with regard to end-users' access to radio and television transmission channels or services specified in pursuance of
Article 31 of the Universal Service Directive. The NRA
must also establish that the prospects of ensuring com-
154
Note: requirements on wide-format services set out in Article 2(c) on standards have been transferred to Article 4 of the Access
Directive. The Universal Service Directive took over the obligation to lay down the interpretation of that Directive 95/47/EC (see Article
20).
103
petition in the provision of retail services related to the
transmission of digital radio and television programmes,
or conditional access and associated systems are not
subject to any unlawful restrictions. The parties affected
by such modifications or withdrawals shall receive due
notice thereof.
Thus, the Commission is authorised – taking account of
market and technological development and acting in accordance with the principles of comitology (regulatory procedures) – to review the conditions set out in Annex I (Conditions for Access to Digital Television and Radio Services
Broadcast to Viewers and Listeners in the Community) in
order to achieve a harmonised system throughout the whole Community (Article 6(2) of the Access Directive).
a. enable all providers of radio or television content
to use its conditional access system on fair, reasonable and non-discriminatory principles, if such
a provider must use a conditional access system
to reach a prospective group of viewers or listeners with pay broadcasts,
b. keep separate accounts for that service activity.
03. The above rights shall fall to the providers of pay-TV
and radio programmes.
04. Obligations will be imposed by individual decisions,
3.1. Conditional access systems. Conditional access systems shall require notification to the President of
URTiP, who will advise the KRRiT about the notifications
received. Conditional access systems are to have the
necessary technical capability for cost-effective transcontrol allowing the possibility for full control by access network operators of the services they provide. Holders of
industrial property rights to conditional access systems
will be able to provide them to the manufactures of reception equipment on reasonable and non-discriminatory terms, without restrictions on the installation of the
universal interface or other access systems, which do not
endanger transaction security.
05. Conditional access systems are to have the necessary technical capability for cost effective transcontrol by the access network operator, i.e. enabling the
latter to supervise access to its services provided with
the use of the conditional access system.
06. Scope of duties related to the authorisation of subscribers, transmission of information about authorisations granted and service of the technical equipment
of CAS systems shall be set out in agreements between TV platform operators and the operators of
local access networks.
Products or providers of conditional access systems,
offered separately from transmission services, shall provide the system to all broadcasters on reasonable, fair and
non-discriminatory terms. Fees shall be based on justified
costs and separate accounts kept for that service.
07. Holders of industrial property rights to conditional access products and systems shall have the obligation
to provide licences to the manufacturers of consumer
equipment (set-top boxes, digital receivers) used to
receive programmes in the digital system.
3.2. Dispute resolution. Disputes concerning rights to
conditional access systems and to providing conditional
access to broadcasters, access to electronic programme
guides and application programme interfaces, as well as
information about that interface shall be settled in litigation, after having taken the opinion of KRRiT.
08. When granting licences to manufacturers of consumer equipment they shall ensure that this is done on
fair, reasonable and non-discriminatory terms.
Comment:
Conditional access systems and services provided with
the use of such systems do not fall within the scope of the
Authorisation Directive, which is why it remains unclear
why the authors of the "Guidance ..." have decided to impose the obligation of notification on the their operators.
A more rational solution would be to have such systems registered with KRRiT.
Proposed Solution:
01. Optionally, KRRiT may keep a registry of the systems
and of undertakings, which control them.
104
02. Irrespective of their market position and irrespective
or whether they deal only with manufacturing, operation of conditional access systems or also use them
to sell their own programme services, CAS operators
should have the obligation to:
09. Detailed terms and conditions for the use of conditional access systems shall be set out in negotiations.
Refusal to provide service using such systems or
unreasonable conditions of an offer therefor shall
give the provider of programme services concerned
the right to apply to KRRiT for the resolution of the
dispute.
10. Member States may restrict the range of undertakings
upon which such obligations may be imposed, which
is generally favoured by conditional access system
operators, because such duties typically apply to significant market power undertakings. A market analysis is required in this context. The Act may authorise the Chairman of KRRiT to carry out such an analysis and restrict the catalogue of obligated
undertakings by way of an ordinance, or by the imposition of the obligation by way of individual deci-
11. Withdrawing or restricting the obligations of conditional access systems shall not restrict end-users' access to programmes benefiting from the must carry
obligation. Furthermore, this should have no adverse impact on competition.
12. Restricting or withdrawing requirements on conditional access systems shall be subject to national consultation procedures, as prescribed in Article 6 of the
Framework Directive and at the EU level (Article
7 of the Framework Directive).
13. KRRiT shall settle any disputes. This is purely a media, rather than telecommunications law issue and
thus, only KRRiT should be competent therefor.
IV. Provisions on Electronic Programme Guides and
Application Programme Interfaces (exception with re−
gard to proportionality of obligations regarding access)
Directive
Annex:
Part II: other facilities, to which conditions set out in Article
5(1)(b) may apply:
(a) Access to application programme interfaces (APIs);
(b) Access to electronic programme guides (EPGs).
Conclusions from Community Law
Where access to other systems is required, it is often
enough to apply access rules to undertakings with SMP
on the market of related systems, subject to the application of the market analysis procedure. The Access Directive authorises national regulatory bodies to impose equal, non-discriminatory and reasonable obligations on
operators in order to ensure access to other associated
systems, to the extent necessary to ensure end-users' access to digital radio and television programmes specified
by the individual Member States.
Article 12, paragraph 1 of the Access Directive clearly
provides for the possibility of imposing obligations on
undertakings controlling associated facilities consisting in
offering access to these facilities to other undertakings.
However, the necessary condition is to determine the
relevant market, on which these facilities are offered and
then to determine their operators’ SMP.
Article 5, paragraph 1, letter b) of the Access Directive provides for extending the obligation to provide access to specified associated facilities to all the
operators of such facilities, on fair, reasonable and
non-discriminatory terms. However, several condi-
tions need to be met before applying such a solution.
First, this solution applies only to APIs and EPGs.
Second, it can be applied only to ensure end-users'
access to radio and television services specified by
the Member State.
Thus, Member States must specify in the first stage,
radio and television services, which must be accessible
to end-users. If access requires the use of specified associated facilities, such as APIs or EPGs, then the obligation to make them available may be imposed on all
undertakings controlling such facilities.
The new regulatory package aims to popularise the
so-called open API. The operators of interactive digital
television platforms should strive to implement an open
application program interface (API) which conforms to
standards or specifications adopted by a European standards organisation. Migration from existing APIs to new
open APIs should be encouraged and organised, for
example by Memoranda of Understanding between all
relevant market players.
Member States may define obligations relating to the
operation of electronic programme guides and similar facilities at their discretion. In particular, this applies to the
listing in the electronic programme guides of programmes
covered by the must carry obligation. Member States’ freedom with this respect may be significant for the pursuit of
national objectives in the areas of culture, language and
mass media. KRRiT's decision will be required.
4.1. Electronic programme guides. Electronic programme guides shall require notification to the President of
URTiP, who will advise the KRRiT about the notifications
received. The President of URTiP may impose the obligation to ensure access to the guide to undertakings transmitting digital radio and television programmes on reasonable
and non-discriminatory terms on the undertaking operating
the EPG. The imposition of this obligation on undertakings,
which do not have significant market power, will be allowed
only to ensure information about programmes and services
covered by the must carry obligation.
4.2. Application programme interfaces. Bodies of
telecommunications administration and KRRiT will promote the use of the open standard of the application
programme interface by telecommunications undertakings and manufactures of television sets. The President of URTiP will be able to impose the obligation on
the SMP operator to ensure access to that interface to
other telecommunications undertakings on reasonable
and non-discriminatory terms. Such obligations may be
imposed on non-SMP operators only to ensure the
transmission of programmes and services covered by
the must carry obligations. The President of URTiP will
encourage the holders of rights to application programme interfaces to provide, on reasonable and non-discri-
sions. In such case the general conditions for the
imposition of access obligations set out in Articles
8-13 of the Access Directive shall apply.
105
minatory terms, information required to launch services
based such interfaces to the manufactures of receivers
and application providers. In the case of an SMP operator, the President of URTiP may mandate such action.
4.3. Dispute resolution. Disputes concerning the licensing of rights to conditional access systems to producers and to providing conditional access to broadcasters,
access to electronic programme guides and application
programme interfaces, as well as information about that
interface shall be settled in litigation, after having taken
the opinion of KRRiT.
Proposed Solution:
1) Optionally: KRRiT may keep a registry of such systems
and undertakings, which control them.
2) All operators of associated facilities have the obligation to provide access thereto on fair, reasonable and
non-discriminatory principles:
• only with regard to APIs and EPGs;
• only to ensure end-users' access to radio and television services specified by a Member State
and to keep separate accounts for that service activity.
3) The Chairman of the KRRiT shall specify radio and television services which must be accessible to end-users
using such equipment or, to which access requires the
use of facilities associated with APIs or EPGs.
Generally speaking, regulation will apply to statutorily
defined telecommunications markets, where there is no
effective competition. Service markets will be regulated
with regard to network access and network interconnection (wholesale markets), as well as markets of services
for end-users (retail markets). Regulatory obligations
shall be imposed upon telecommunications undertakings
having significant market power on regulated markets.
Regulatory obligations shall be imposed upon telecommunications undertakings, which do not have significant
market power, only in situations set out in the future Law.
Only one market out of the 18 markets defined by the EU
concerns the media: the market of radio and television
broadcasting. Subject to EU approval, a Member State
may define other markets. Authorities responsible for the
regulation of radio and television infrastructure come within the scope of the Framework Directive with regard to
the objectives and regulatory principles, consultation of
decisions, market identification and analysis, application
of regulatory instruments, granting authorisations to provide networks and transmission services, resolution of
disputes between telecommunications undertakings and
co-operation with the European Commission.
Obligations will be imposed by individual decisions.
4) The Chairman of the KRRiT shall set out by way of
ordinance a timetable for the implementation of an
open programme interface (API) conforming to the
specifications set out by European standards bodies,
taking account of the recommendations of European
standards bodies and the capabilities of system operators, as well as of consumers' needs.
5) Access shall be provided on contractual basis - fair,
reasonable and non-discriminatory conditions. Refusal to provide service using such systems or unreasonable conditions of an offer therefor shall give the
provider of programme services concerned the right
to apply to KRRiT for the resolution of the dispute.
6) KRRiT shall settle any disputes.
V. Markets ex ante Relevant for the Media
Regulatory authorities in charge of radio and television broadcasting shall have the obligation to identify
markets subject to ex ante regulation, to impose obligations on SMP undertakings on these markets and – in
certain cases – on all undertakings dealing with the distribution of radio and television programming.
5.1. Identifying regulated markets. The Minister competent for telecommunications shall set out by ordinance the
material and territorial scope of regulated markets, taking
the greatest possible account of Commission recommendations on relevant product and service markets in the sector of electronic communications and Commission recommendations on market analysis, determination of significant
market power in their current wording, as well as the level
of development of telecommunications markets in Poland.
Radio and television transmission markets in Poland will be
defined after consultation with KRRiT. The ordinance in
question will be reviewed at least every 2 years.
Directives
In its recommendation on relevant markets the Commission recommends to extend regulation to one wholesale market, allowing the possibility of its segmentation.
This is the market of distribution networks and transmission services for radio and television designed to deliver
106
content to end-users. This market may be subject to segmentation. The identification of additional national markets in the transmission of radio and television signals
by national regulatory authorities shall require the approval of the European Commission.
5.2. Market analysis. The President of URTiP shall carry out an analysis of regulated telecommunications markets to determine the existence of effective competition. It
is assumed that there is no effective competition on
a market, where at least one undertaking operating on that
market has significant market power. The President of
URTiP shall to the greatest possible extent take account
of Commission recommendations on market analysis and
the determination of significant market power, in their current wording. Having failed to determine significant market power in the analysed market, the President of URTiP,
having carried out the consultative and consolidation procedures, will close its investigation into that market.
make the implementation of certain European standards
compulsory.
Proposed Solution:
Public electronic communications networks established for the distribution of digital television services shall
be capable of distributing wide-screen television services and programmes. Network operators that receive and
re-distribute wide-screen television services or programmes shall maintain that wide screen format.
Directive
2) Market analyses, analysis updates, assessment of
market power, the determination of the mix of their obligations in individual decisions, or their limitation or
withdrawal, shall be done by KRRiT, or at least in communication with KRRiT, rather than just after taking
KRRiT's opinion.
It is therefore not allowed to convert programmes
supplied by the broadcasters in the 16:9 format into the
traditional 4:3, which would deprive the owners of wideformat receivers of the opportunity to benefit from the
functionalities of their receivers. The directives do not
mandate use of 16:9 format for the production of programming content.
VI. Access to Distribution Networks and Infrastruc−
ture and to Operational Support Systems for Broad−
casters and Content Providers, excluding Associated
Facilities (CAS, EPG, API)155
Proposed Solution:
Proposed Solution
Duties relative to the establishment of access in litigation, supervision over fulfilment of duties relative to
accountancy and calculation, price controls and approval of access rates, the enforcement of the obligation to
apply the reference access offer in matters relating to
access, approval and modifications to the offer, if required with regard to undertakings designated as SMP on
the relevant media markets, shall be carried out by the
President of URTiP acting in communication with KRRiT
and, from the moment arbitration panels have been formed – by these panels, in which KRRiT shall have its
representatives.
VII. Interoperability of Analogue and Digital Televi−
sion Services and TV Sets – Standards
Essentially, standardisation is implemented through
voluntary standards. KRRiT should draw up a list of such
standards and, if appropriate, such standards should be
set out as voluntary standards, in accordance with the requirements of European standards bodies and directives
(Articles 18 and 24 of the Framework Directive and Annex to Access Directive) and with regard for consumer
interests. According to the provisions of Article 17 of the
Framework Directive, the European Commission may
155
1) Network operators that receive and re-distribute widescreen television services or programmes shall maintain that wide-screen format.
2) The new Law may provide for a later entry into force
of this provision.
IX. The Authority and its Competences
In many Member States, apart from the telecommunications regulator, there are separate regulatory authorities in charge of the regulation of radio and television
activities. Usually, they deal not only with programming
issues, but also, to a varying extent, with technical issues related to the transmission of programmes. In particular, they may be administering spectrum resources required for these purposes.
The directives take a functional approach to the concept of the "national regulatory authority". This means that
various authorities, including those in charge of the distribution of audiovisual content, may carry out these tasks.
Where there is more than one regulatory authority, the
directives mandate a clear delimitation of their competences, mutual consultations and the transfer of information
required for the conduct of regulatory activities. All regulatory authorities must be notified to the European Commission. There are no requirements for the separation of infrastructure and content matters in two different authorities.
Nor, are there any requirements to the opposite effect.
1) The markets stipulated in the ordinance, as well as the
methods for their analysis and the determination of significant market power, should be determined with the
active participation of KRRiT. The ordinance should be
promulgated in communication with KRRiT and the Ministry of Infrastructure.
VIII. Wide−Screen Television
A uniform dispute resolution system may be introduced for all cases, if that is the preference of KRRiT.
107
Proposed Solution
108
Establishing a single, integrated authority takes time.
As an alternative, one might propose the operation and
co−operation of two authorities – the President of URTiP
and the Chairman of KRRiT. The specific rules of their
functioning in key issues have been set out above. Yet
problems with ensuring a proper relationship between
them and the perspectives of technological convergen−
ce make the case for one authority.
5−17 January 2003 – Implementation of the package
of directives on electronic communications (part 1)
experts' meetings with the participation of Mr. Piotr Jasiñski (Oxecon Ltd. – Great Britain) and Mr. François-Xavier Georget (DDM – France).
24−26 February 2003 – Implementation of the package
of directives on electronic communications (part 2)
experts' meetings with the participation of Mr. Piotr Jasiñski
(Oxecon Ltd. – Great Britain) and Mr. Peter Olaf Looms
(Danish Broadcasting Corporation – DR Denmark).
3−5 March 2003 – "European regulations on the organi−
sation and financing of public service broadcasters" a
seminar with the participation of Ms. Audrey Azoulay (DDM
– France), Mr. Philippe Nicolas (France Télévisions – France) and Mr. Werner Rumphorst (European Broadcasting
Union).
6−7 March 2003 – "Protection of minors in television"
a seminar with the participation of Ms. Sophie Jehel (CSA
– France).
12−14 March 2003 – "British DTT launch strategy"
expert's meetings with the participation of Ms. Eve Salomon (Radio Authority – Great Britain).
19 May 2003 – Implementation of the package of di−
rectives on electronic communications (part 3)
expert's seminar with the participation of Mr. FrançoisXavier Georget (DDM – France) and Mr. Philippe Bailly
(NPA Consulting – France).
21 May 2003 – "Introduction to the French DTT stra−
tegy" experts' meeting with the participation of Mr.
François-Xavier Georget (DDM – France) and Mr. Philippe Bailly (NPA Consulting – France).
21−22 May 2003 – "Review of the draft Green Paper
with special focus on the launch of DTT and regula−
tor's organisational structure" expert's meetings with
the participation of Ms. Eve Salomon (Radio Authority
– Great Britain).
23 May 2003 – "Implementation of the British audio−
visual policy in the context of the new regulatory
structure: OFCOM" a seminar with the participation of
Ms. Eve Salomon (Radio Authority – Great Britain).
2−3 June 2003 – "Licence−fee collection system – the
case of France" experts' meetings with the participation
of Ms. Audrey Azoulay (DDM – France) and Mr. Philippe
Nicolas (France Télévisions – France).
4 June 2003 – "Structure and organisation of public
service broadcasters – example of the France Télévi−
sions holding" a seminar with the participation of Ms. Audrey Azoulay (DDM – France) and Mr. Philippe Nicolas
(France Télévisions – France).
16 June 2003 – "Digital television in the light of the
electronic communications package" expert's meeting
with the participation of Mr. Piotr Jasiñski (Oxecon Ltd.
– Great Britain).
3−4 July 2003 – "Electronic communications package
(Authorisation Directive)" experts' meetings with the participation of Mr. Piotr Jasiñski (Oxecon Ltd. – Great Britain).
21−23 July 2003 – "Universal Service Directive"
experts' meetings with the participation of Mr. Piotr Jasiñski (Oxecon Ltd. – Great Britain).
17−18 September 2003 – "Access Directive" experts'
meetings with the participation of Mr. Piotr Jasiñski (Oxecon Ltd. – Great Britain).
26 September 2003 – "The electronic media policy of
the Polish State in the context of the European audiovi−
sual policy – Principles for a new Broadcasting Act" –
presentation of work on the Green Paper by a group of independent experts, conference with the participation of Mr.
K. Jakubowicz, Mr. Bohdan Jung, Mr. Tadeusz Kowalski.
3 November 2003 – "Public service radio − continu−
ation or changes? Holding as an organisational form
for the public service radio?" seminar in the framework
of public consultations on the assumptions of the Green
Paper with the participation of Mr. Stanis³aw Jêdrzejewski (expert from Polskie Radio) and Mr. Artur Nowak-Far
(Warsaw School of Economics).
18 November 2003 – experts' meeting with the participation of Ms. Eve Salomon (Radio Authority – Great Britain) on the Green Paper.
19 November 2003 – "Models of broadcasting regu−
latory bodies – European experiences" conference in
the framework of public consultations on the assumptions
of the Green Paper with the participation of Mr. Richard
Collins (the Open University – Great Britain), Mr. Michael
Ogris (KommAustria – Austria), Ms. Isabelle Mariani
(CSA – France), Mr. Tom Thoresen (Mass Media Authority – Norway), Ms. Teresa Ribeiro (Media Institute - Portugal), Ms. Eve Salomon (Radio Authority – Great Britain) and Ms. Paola Manacorda (AGCOM – Italy).
20 November 2003 – experts' meeting with the participation of Mr. Richard Collins (the Open University – Great Britain), Mr. Michael Ogris (KommAustria – Austria),
Ms. Isabelle Mariani (CSA – France), Mr. Tom Thoresen
(Mass Media Authority – Norway), Ms. Teresa Ribeiro
List of conferences, seminars and experts' meetings held in the framework
of PHARE PL 2001/IB/OT01 Project
109
(Media Institute – Portugal) and Ms. Paola Manacorda
(AGCOM-Italy) on the Green Paper.
110
21 November 2003 – "Role of public administration
in the electronic media sector – the example of CSA
structure" a seminar with the participation of Ms. Isabelle Marianii (CSA – France).
15 December 2003 – "Media financing and the principles
of the balancing of the markets" seminar in the framework
of public consultations on the assumptions of the Green Paper with the participation of Ms. Janina Lingner-¯eromska
(Kancelaria Prawnicza Domañski, Zakrzewski, Palinka), Mr.
Jakub Bierzyñski (OMD Media), Mr. Karol Jakubowicz,
(KRRiT expert), Mr. Tadeusz Kowalski (Warsaw University),
Mr. Bohdan Jung (Warsaw School of Economics) and Mr.
Artur Nowak-Far (Warsaw School of Economics).
14 January 2004 – "Pluralism of information and su−
pervision of political programmes" a seminar with the
participation of Ms. Maryse Brugière (CSA France) and
Ms. Emmanuelle Mauger (DDM – France) and Mr. Christophe Haquet (CSA – France).
15 January 2004 – "Promotion of distribution and pro−
duction of television programming" a seminar with the
participation of Ms. Maryse Brugière (CSA – France) and
Ms. Emmanuelle Mauger (DDM – France).
15 January 2004 – "European standards in adverti−
sing, distance sales and sponsoring" a seminar with the
participation of Ms. Laurence Baladi (DDM – France) and
Mr. Christophe Haquet (CSA – France).
16 January 2004 – "Self−regulation in advertising as
a complement to legal framework and regulator's ac−
tivities" a seminar with the participation of Ms. Laurence Baladi (DDM – France), Mr. Christophe Haquet (CSA
– France) and Mr. Joseph Besnainou (Bureau de Verification de la Publicite – France).
28 January 2004 – "Jurisdiction and Delocalisation
– Criteria set out in Article 2 of the "Television wi−
thout Frontiers" Directive and the Practical Problems
of their Implementation in EU Member States" a seminar with the participation of Ms. Séverine Fautrelle (DDM
– France) and Mr. Hubert Dubernay (CSA – France).
29 January 2004 – "Models of Licences awarded by
CSA" a seminar with the participation of Mr. Thierry Vachey (CSA – France).
29 January 2004 – "Transmission of Events of Major
Importance for Society" a seminar with the participation of Ms. Séverine Fautrelle (DDM – France).
30 January 2004 – "Complaints and Sanctions Pro−
cedures" a seminar with the participation of Mr. François
David (CSA – France).
2 February 2004 – "Competition Policy in the Media −
Institutional and Procedural Aspects – British and Eu−
ropean Experiences" seminar in the framework of consultations on the assumptions of the Green Paper with
the participation of Ms. Cathryn Ross (Competition Commission – Great Britain), Ms. Jolanta Steppa (UOKiK), Mr.
Piotr Jasiñski (Oxecon Ltd. – Great Britain) and Mr. Tadeusz Kowalski (Warsaw University).
18 February 2004 – "Media Concentration : Is there
a need for specific regulations?" a seminar with the
participation of Mr. Laurence Franceschini (DDM – France) and Mr. Thomas Gibbons (University of Manchester
– Great Britain).
25 February 2004 – "Digital Terrestrial Television:
A Technical, Economic and Legal Challenge; French
and Italian models" a seminar with the participation of Ms.
Florence le Borgne (IDATE – France) Mr. Emmanuel Dollfus (DDM – France) Ms. Claire Seiller (DDM – France); Mr.
Thierry Vachey (CSA – France) Mr. Arnaud Decker (CSA –
France) Ms. Lisa Di Feliciantonio (AGCOM – Italy), Mr.
Roberto De Martino (AGCOM – Italy), Mr. Sami Lazar (CSA
– France), Mr. François-Xavier Georget (DDM – France).
26−27 February 2004 − "Model for the Introduction of
DTT in Europe" experts' meetings with the participation
of Ms. Florence le Borgne (IDATE – France) Mr. Emmanuel Dollfus (DDM – France) Ms. Claire Seiller (DDM –
France); Mr. Thierry Vachey (CSA – France) Mr. Arnaud
Decker (CSA – France) Ms. Lisa Di Feliciantonio (AGCOM – Italy), Mr. Roberto De Martino (AGCOM – Italy),
Mr. Sami Lazar (CSA – France), Mr. François-Xavier Georget (DDM – France).
15 March 2004 – "Community Audiovisual Policy −
Impact on Legal Regulations and Regulators' Activi−
ties" a seminar with the participation of Ms. Laure Touraine-Pascal (SGCI – France) and Mr. Frédéric Deroin
(DDM – France).
16 March 2004 – "Community Audiovisual Policy –
Impact on Legal Regulations and Regulators' Activi−
ties" experts' meeting with the participation of Ms. Laure
Touraine-Pascal (SGCI – France) and Mr. Frédéric Deroin (DDM – France).
0
1.
02.
03.
04.
Ms. Audrey Azoulay (DDM – France)
Mr. Philippe Bailly (NPA Consulting – France)
Ms. Laurence Baladi (DDM – France)
Mr. Joseph Besnainou (Bureau de Verification
de Publicité – France)
05. Mr. Miros³aw Bielicki (Polkomtel S.A.)
06. Mr. Jakub Bierzyñski (OMD Media – Polska)
07. Rev. Adam Boniecki ("Tygodnik Powszechny")
08. Ms. Florence le Borgne (IDATE – France)
09. Ms. Maryse Brugiere (CSA – France)
10. Mr. Richard Collins (The Open University – Great Britain)
11. Mr. François David (CSA – France)
12. Mr. Arnaud Decker (CSA – France)
13. Mr. Frédéric Deroin (DDM – France)
14. Mr. Andrzej D³ugosz (Chairman of the Supervisory
Board of Polskie Radio S.A.)
15. Mr. Emmanuel Dollfus (DDM – France)
16. Mr. Hubert Dubernay (CSA – France)
17. Ms. Séverine Fautrelle (DDM – France)
18. Ms. Lisa Di Feliciantonio (AGCOM – Italy)
19. Mr. Laurence Franceschini (DDM – France)
20. Mr. François-Xavier Georget (DDM – France)
21.Mr. Thomas Gibbons (University of Manchester – Great
Britain)
22. Mr. Christophe Haquet (CSA – France)
23. Mr. Sami Lazar (CSA – France)
24. Ms. Janina Lingner-¯eromska (Kancelaria Prawnicza,
Domañski, Palinka, Zakrzewski)
25.Mr. Peter Olaf Looms (Danish Broadcasting Corporation
– DR Denmark)
26. Ms. Isabelle Mariani (CSA – France)
27. Mr. Roberto De Martino (AGCOM – Italy)
28. Ms. Emmanuelle Mauger (DDM – France)
29. Ms. Paola Manacorda (AGCOM – Italy)
30. Mr. Philippe Nicolas (France Télévision – France)
31. Mr. Artur Nowak-Far (Warsaw School of Economics)
32. Mr. Stanis³aw Jêdrzejewski (Polskie Radio S.A.)
33. Ms. Sophie Jehel (CSA – France)
34. Mr. Piotr Jasiñski (Oxecon Ltd. – Great Britain)
35. Ms. Beata Ociepka (Wroc³aw University)
36. Mr. Michael Ogris (KommAustria – Austria)
37. Ms. Teresa Ribeiro (Media Institute – Portugal)
38. Ms. Cathryn Ross (Competition Commission – Great
Britain)
39. Mr. Werner Rumphorst (European Broadcasting
Union)
40. Ms. Eve Salomon (Radio Authority – Great Britain)
41. Ms. Claire Seiller (DDM – France)
42. Ms. Anna Stre¿yñska (Instytut Badañ nad Gospodark¹ Rynkow¹)
43. Mr. Tom Thoresen (Mass Media Authority – Norway)
44. Ms. Laure Touraine-Pascal (SGCI – France)
45. Mr. Andrzej Zarêbski (Andrzej Zarêbski i Wspólnicy
Sp. z o.o.)
46. Mr. Thierry Vachey (CSA - France)
List of experts, persons and organisations, who have given lectures, seminars or consultations,
or submitted an opinion in writing on the preliminary versions of the assumptions of the new act
on electronic media (the so−called "Green Paper")
111

Strategic guidance for the law on electronic media and amendments

Transcription

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