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AUDIOVISUAL LEGAL FRAMEWORK OVERVIEW
ROMANIA

Introduction

The situation of the audiovisual media in Romania required an adequate legislation reform, which had to be strictly related to the specific characteristics developped following the former legislation and audiovisual policy.
The limits imposed to the development of the private media by the “local licence” concept, which was not indeed a matter of legislation, but a policy topic, are to be overpassed not only by a regular legislation, but also by the “compensation principle” legislation.
The main problem of the broadcasting development in Romania roots in the concept of the local licence, which has been the only one to operate in the process of granting licences for almost 10 years. According to that “concept”, the winner of the licence auction was supposed to broadcast programs dedicated strictly to the needs of a local audience. No idea about the overall needs for information for the entire population of the country. The audiovisual policy did not take into account the national range audience, but only the local audience. Although the audiovisual law itself had no connections to the “local licence concept”, still itsbirhplace consisted of the National Audiovisual Council's decisions regarding the licencing auctions. At the same time, all available frequencies for the private radio and TV broadcasting were low power frequencies (at a range between 10 and 500 watts ERP- estimated radiated power), i.e. the local coverage frequencies. A first break in this local licencelicence oriented system has been made by the National Audiovisual Council (NAC) this year, with a decision which sets up a network operating system for the existing licencelicences of major media companies. This decision was issued as a result of a special request received from the Romanian Association of Broadcasters (Romanian Association for Audiovisual Communications -ARCA). This was followed by other decisions and finally this year, by a new legislation, namely the Audiovisual Law no 504/2002. ARCA was deeply involved in getting the law through Parliament, some of the law’s provisions having emerged from the lobby actions of the association.

1. Freedom of Expression

The Romanian Constitution guarantees the freedom of expression within the terms of the Article no 30:
(1)Freedom of expression of thoughts, opinions, or beliefs, and freedom of any creation, by words, in writing, in pictures, by sounds or other means of communication in public are inviolable.
(2) Any censorship shall be prohibited.
(3) Freedom of the press also involves the free setting up of publications.
(4) No publication can be suppressed.
(5) The law may impose on the mass media the obligation to make the financing sources public.
(6) Freedom of expression shall not be prejudicial to the dignity, honor, privacy of person, and the right to one's own image.
(7) Any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class or religious hatred, any incitement to discrimination, territorial separatism or public violence, as well as any obscene conduct contrary to morality shall be prohibited by law.
(8) Civil liability for any information or creation made public falls upon the
publisher or producer, the author, the producer of the artistic performance, the
Owner of the copying facilities, radio or television station, under the terms laid
down by law. Indictable offenses of the press shall be established by law.

Those provisions are extended by the Article 31 with provisions concerning the right to information:
(1) A person's right to access any information of public interest cannot be restricted.
(2) The public authorities, according to their competence, shall be bound to provide for the correct information of the citizens in public affairs and matters of personal interest.
(3) The right to information shall not be prejudicial to the protection of the young or to the national security.
(4) Public and private media shall be bound to provide correct information to the public opinion.
(5) Public radio and television services shall be autonomous. They shall guarantee the right of expression to all important social and political groups. These services, as well as the Parliamentary control over their activity shall be regulated by organic law.

Enforcement of the international legal instruments in the field of Human Rights, containing freedom of expression provisions.

Romania ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Law no 30/1994. The European Convention on Transfrontier Television was signed in 1997 and is now under procedure of ratification in Parliament (the ratification law was recently adopted inParliament and sent to the Presidency for promulgation – the President sent it back for some revisions, some weeks ago).
The Romanian Constitution implies that international treaties ratified by the Parliament prevail over domestic laws. Despite that, there is a matter of interpretation if a certain Romanian legal provision is consistent with international treaties. For instance, the audiovisual law interferes in a confused manner with the article no 10 of the European Convention on Human Rights, witch stresses that the freedom of expression restrictions should be assigned by law and backed by motivations related to the needs of a democratic society. So instead of going further than the Constitution in offering specific regulations related both to Human Right items and to the audiovisual field, the audiovisual law generally quotes the overall provisions of the Constitution.
The article no 10 of ECHR and its case law imply specific regulations related to the freedom of expression limitations. ARCA suggested that, according to the European Court considerations, some specific regulations should be introduced in the law. For instance, the regulation which quotes that ”critical value judgments can be made by journalists unless truth proof”. Also, “limits of permissible criticism should be wider with regard to the government, politicians and public persons than in relation to a private person”. Or, “a journalist should not be sued for publishing false information on any private or public persons unless he knew that the information is false or unless he fulfilled the normal procedure in verifying the information”. Criticism of the government is one of the needs of a democratic society as also stated by the ECHR case laws.

• There is no independent body dedicated to responding to the broadcasters’ complaints regarding the broadcasting freedom violations. However, there are ways to address the Parliament (the Commissions for abuses or the media Commissions) and also to use the legal court procedure.
• There are no notorious cases of violations of the right to free expression in broadcast media, although there are some in the printed press, evaluated as such by decisions of the ECHR (the Dalaban and Constantinescu cases).
Right now there is a case related to the NAC decision to withdraw the licence of a TV station (OGLINDA TV), but the evaluation of the legal character of that decision is now to be completed in court. As for the different evaluations made so far by different bodies, there is no overall trend to agree on or to deny the validity of the NAC decision.
• The National legislative acts which regulate the broadcasting sector are the recently adopted Audiovisual Law (law no 504/ July2, 2002) and the Public Broadcasters Law (Law no. 41/ June 17, 1994). The Parliament will soon proceed in adopting a new law for public broadcasters.

2. The regulatory authority
A. Status

The regulatory authority of both private and public broadcasters in the field of the audiovisual program services is The National Audiovisual Council as a public autonomous authority under the control of the Parliament and the warrantor of the public interest in the field of the audiovisual communication. The Cuncil was set up by the former audiovisual law (law no 48/1992) and its prerogatives were redefined in the current Law no 504/2002.
As warrantor of the public interest in the field of audiovisual communications, the National Audiovisual Council must ensure the following:
a) the observance of a pluralist expression of ideas and opinions in the program services transmitted by the radio broadcasters under the Romanian jurisdiction;
b) the pluralism of information sources for the public;
c) the promotion of free competition;
d) a fair balance between the national radio broadcasting services and the local, regional or thematic services;
e) the protection of human dignity and under age children;
f) the protection of the Romanian culture and language, as well as of the culture and languages of the ethnical minorities;
g) the transparency of the mass communication means in the audiovisual sector;
h) the transparency of own activities.

Political Independence.
The Council is made up of 11 members proposed by: a) the Senate: 3 members; b) the Chamber of Deputies: 3 members; c) the President of Romania: 2 members; d) the Government: 3 members.
The proposals assign the candidate for the position of a titular, as well as the candidate for the position of a deputy and they shall be forwarded to the specialized standing commissions in order to hear the candidates in joint session.
Further to the hearing, the specialized standing commissions draw up a joint notification which they present in the joint session of the Chamber of Deputies and of the Senate. The candidateship shall be approved by the vote of the majority of deputies and senators.
• Although proposed by different political bodies, the eleven NAC members and their deputies are supposed “not to represent the authority that proposed them”, as the Law states. Theoretically, there is no possibility that any politician could interfere in the NAC decisions, except for the procedure of post factum control over the actions of the Council. This was stated in the law after long debates structured on two vectors: experts from the Council of Europe asked for absolute independence of the Council, proposing even an immovability status for the members, while the senators and deputies in the media commissions were interested that a certain accountability should exist, of course post factum, the independent status of the Council’s power of decisionbeing preserved.
Their salaries are at the level of a minister (EUR500 net salary for the president) and of a secretary of state for the rest of the members.(EUR350)
The NAC is financed by the state budget, which is decided once a year by budget law of the Parliament.
There was a proposal to let the NAC take 25% of the fines related to the audiovisual law infringements, but this was not accepted (due to the ARCA lobby, among others).
The position of a member in the Council is incompatible with any other public or private office, save didactical ones, provided they do not result in conflicts of interest.
As far as the Parliament can be induced by the government (the leading party) to limit the NAC budget, there is a possibility, even very week, to influence the Council.

• There was a big crisis regarding the way the NAC should make decisions: two years ago, after a dialogue with our association and following our proposal, the Council issued a decision according to which auctions are organized for important high power frequencies in order to complete the existing networks of low power frequencies. The government suddenly issued an emergency order stating that only the government can organize auctions for high power frequencies. Finally, the conflict ended in a compromise, with the government giving up its initiative on condition that the NAC should also withdraw its decision regarding the auction.

B. Competencies

The NAC can issue regulatory normative decisions in order to accomplish its attributions and follow the provisions of the Law.
The NAC is also involved in making, together with the Ministry for Communications, the strategy in the field of using radio electric frequencies and of the National Plan for radio electric frequencies allotted to the audiovisual communication. Also, by its prerogatives in granting licences and issuing decisions as secondary legislation, the Council sets up a policy dedicated to the development of the audiovisual field.
The Council has all licencing and monitoring prerogatives as far as the program content of the licences is concerned. The technical aspects of the broadcasting are under the control of the Ministry for Communications, which however has influence on the audiovisual licences. The monitoring capacity of the NAC is not covering the whole range of the broadcast programs. There are no funding procedures for the program production.
However, while the law was completed, there was a large request coming even from the experts of the Council of Europe, to define the law infringements as contraventions only, while the law also contains penal fines.
All sanctions, as well as all the decisions of the Council, including their motivations, have to be published.
The sanction decisions may be appealed at the administrative contentious Court within 15 days after communication. Those decisions are considered to be executory titles unless attacked within the term stipulated by law.

C. Accountability

The Council is accountable to the Parliament by presenting an annual report or the reports requested by the Parliament Culture and Media Commissions. The annual report is the only one that implies procedures aimed to remedy the effects of the Council’s activity. The Council must fulfill the program of measures established by Parliament decision , if the Parliament evaluates a need of remedy. The members in the Council may be revoked on the proposal of the specialized commissions of the Parliament only if they cannot exert their functions for a period longer than 6 months or in case of a penal conviction applied by a final court decision.

There is no accountability before the general public, except for the Council’s duty to publish regular reports on its activity and, as for the Council regulatory decisions, the legal provision to publish them and their motivation in the Official Gazette. At present, the Council runs a website containing updated information on the Council’s activities and decisions. Recently, opposite to the last years, there is a also a better practice regarding the press conferences. Thus, there have been 4 conferences in the last two months, while previously there have been years with no press conferences.

The Council has been involved several times in debates and discussions with the Broadcasters Association (ARCA), with strong results in setting up new decisions aimed to improve the overall regulatory framework. Most of those discussions were the association’s initiative. For instance, last year, the Council agreed to apply a strategy suggested by ARCA, which consisted of the allocation of high power frequencies in order to complete major existing networks of local licences up to the national range networks. There was even a decision of the Council in that respect, but at that time the Government issued a law in emergency procedure (emergency order), forbidding the Council to decide on allocation of high power licences. This ended with an important public debate and a compromise between the Government and the Council: the government revised its decision and the Council gave up the idea of managing, for the moment, high power frequencelicences. Another example: this year, the Council agreed on another proposal received from ARCA, and issued a decision stating that the local licence networks can operate as networks for a single program, enabling broadcasters not to waste their financial resources and act as national range networks. Another case was a revision on the Council decision regarding the advertising sector in order to make it comply with the directive for television without frontiers concerning the provisions which had previously been understood to be more restrictive than the directive had stated (the provisions concerning the insertion of isolated spots, the total duration of the teleshoping materials and the right to announce the names of sponsors during sponsorship programs - this was again a proposal of ARCA).

4. The licencing system

The content licencing procedures are regulated by the new audiovisual law 504/2002 (attached here). As for the technical aspects of the licencing field (ethnical authorizations or broadcasting licence - in case of terrestrial broadcasting), there are very few provisions in a very recent law, mostly oriented to communications in a broad technical meaning (telephony, data communications, use of non-audiovisual frequency bands), i.e. the law no. 591 from 29.10.2002.

Enforcement of the laws

• There are no companies acting as unlicenced broadcasters. The unlicenced broadcasting is a piracy phenomenon, i.e. individuals broadcasting with very limited resources and in small areas, with nonprofessional equipment. They are quite numerous and the authorities do not have yet convincing legal instruments to stop them. Anyhow, they do not enter in competitive relationship with lawful licenced broadcasters.

The reason for the failure to enforce legal provisions on piracy is actually a non-consistent link between different sectors of the legislation involved in dealing with that problem. Even if proved to break the law for illegal use of the frequency spectrum, there is no possibility to convict pirates and they can resumetheir operations at anytime.

B. Access to frequencies and equipment

The audiovisual law states that a National Plan for radio electric frequencies has to be set up by the Ministry for Communications within 12 months after the issuing of the law, based on the strategy of Tthe Council regarding the territorial coveragewith audiovisual program services, which will also designate the areas and localities covered thereby. As a matter of fact, even if not linked to a program coverage strategy, plans for frequency assignment are already in existence, issued by the International Telecommunications Union (ITU) under the name of the Geneva Plan (issued in 1984 for radios) and the Stockholm Plan (issued in 1965 for TV), both updated yearly. At the end of 1997, ARCA asked the Ministry for Communications some information related to those plans. The answer was that that kind of information is classified. ARCA contacted ITU and made the same demand with better results. ITU delivered to ARCA a CD-ROM edition containing all plans related to the frequencies assigned for worldwide broadcasting, including Romania. Based on that information, ARCA started a public debate, which resulted in the fact that the bodies involved in broadcasting became aware and responsible of that kind of information, while the broadcasters community expected them to act as such. One year later, the first private national radio network based on the plan was licenced.
A Mixed Consultative Commission composed of 3 members proposed by the Council and 3 members proposed by the Ministry for Communications is now entitled to establish the radio electric frequencies strategy in the field, the National Plan for radio electric frequencies allotted to the audiovisual communication, and to solve the issues related to the use of the radio electric spectrum destined to audiovisual communication, as well as those regarding the new technological developments with an impact upon the audiovisual communication.
Actually, the mixed commission will build the strategy, but the plan itself will be the Ministry for Communications’ product. Of course, it will be very difficult for the Audiovisual Council to establish the strategy for the territorial coverage with programs in absence of an evaluation of the frequency resources. So, the building of the strategy will imply a strong cooperation between the Council and the Ministry. But that kind of cooperation has always been a problem in Romania.
On the other side, the law states that the Plan shall include “at least” a certain number of frequency networks for radio and television, and that some of them will be attributed to the public stations. While the law was drafted, ARCA argued that it is not realistic, nor logically correct to set up by law what was supposed, according to the law itself, to be the result of the work of the Council, the Ministry and of the Mixed Commission. At that time ARCA also argued that, while the draft law even indicated the number of networks that are made available by the Plan, it is not possible to indicate the number of networks and the way to allocate them (in fact to allocate them mostly to public broadcasters) before the Council strategy for program coverage of the territory is made, with a proper balance between public and private, or before the accomplishment of the work of the mixed commission and the Ministry, in that respect. The Parliament accepted ARCA’s proposal by letting the number of networks with no upper limit (“at least”). Actually, a simple evaluation of the Geneva and Stockholm Plans allows to approximate a minimum number of 6 national radio networks and 4 national TV networks. Depending on the coverage policy, that number could increase.

• So far, except for our putting at the association members’ disposal bodies of the Plans, there was no official delivery of that information. In fact, broadcasters cannot set up a long term strategy based on official information on frequencies.

The broadcasting infrastructure in terms of towers etc, which was primarily state owned, is now available for private broadcasters as well. Actually, the association was involved in discussions on that topic with the state company (Radio Communications Company), which owns the infrastructure. Due to the debts of the public stations (there were even unofficial statements on the idea to stop transmissions as a way to stimulate the payment of those debts), the company was interested in offering services for private broadcasters in order to get extra funding. At that time, private broadcasters were not interested in using those services considering the extra expenses involved and the fact that those services were not suitable to local broadcasting, while all the private companies were broadcasting on low power frequencies (except for the first private national radio network)

C. The granting of a licence

The Audiovisual Council is the regulatory authority which grants the licences to both public and private broadcasters. Actually, the law states that the Council grants audiovisual licences, i.e. content licences. Whenever the broadcasting of a program service involves the use of a terrestrial radio electric frequency, it will be done on the basis of the audiovisual licence, as well as of a broadcasting licence, mandatorily issued to the holder of the audiovisual licence. The body entitled to issue the broadcasting licences is the Ministry for Communications.
But this broadcasting licence is nothing else than a simple authorization. There is no contest or auction to obtain that licence, and the law states that the licence is mandatorily (compulsory) granted to owner of the audiovisual licence. Moreover, the audiovisual licence has, among its characteristics, an attached frequency, with all indication on the technical elements of the frequency, including location for the transmitter. In fact, when a company wins an auction organized by the Audiovisual Council for an audiovisual licence implying terrestrial broadcasting, it automatically gets a broadcasting licence from the Ministry for Communications.
A simple question is legitimate here: why is there a need for that broadcasting licence which is practically just an appendix with no relevance and doubles the audiovisual licence? The answer is in the history of the law. Primarily, when the draft law was initiated by the Ministry for Communications, the drat stated that, in the case of licences implying terrestrial broadcasting and use of terrestrial frequencies, primarily the Council will grant audiovisual licences (program licences) with no auction procedure, and secondarily, the Ministry for Communications will grand the broadcasting licence (transmitting licence) through auction. So, all owners of audiovisual licences could participate in the auction for transmitting licence but only one, i.e. that one which offers more money for the use of the frequency, will get the transmitting licence from the Ministry. Actually, only this single participant will be able to use the audiovisual licence, while the rest could only keep it in a directory.
Of course, because that licensing mechanism implied that the licences were practically granted by a political body, i.e. the Government - through its Ministry for Communications, which was practically and theoretically unacceptable, a huge debate emerged, comprising discussions with the prime minister, press conferences and seminars with experts coming form the Council of Europe. The result, after months of debates, was that the Ministry practically gave up its intentions to control the licensing process. So, the presence of the broadcasting licence in the law is only a fade relic of that quarrel. Actually, the broadcasting licence has absolutely no relevance and is automatically contained in the audiovisual licence granted by the Council. So, practically, there is no political influence of the Government on the licensing process. In fact, a simple problem still remains: the broadcasting licence is the same technical authorization as the so-called “technical operating certificate”, which is also in the law. So a broadcaster gets two technical authorizations for the same topic.
In short, as mentioned above, there are quite sufficient guarantees for the political independence of the licensing body.
As for the Ministry for Communications’ role in the audiovisual law, there is another story here. Primarily, in the audiovisual law as issued on July22, 2002, the authority entitled to issue the technical licences and authorizations was the so–called “National Regulatory Authority for Communications”, which was recently set up, but not still entirely operating. At the same time, in the telecommunication legislation in force, recently revised by an emergency order (no 79/2002), the authority entitled with the same competencies was the Ministry for Communications. So, for a few months, two different legal provisions were in force with different provisions on the same issue. Recently, on the occasion of the Law no 591 which was issued on October 29, 2002, and concerns the approval by Parliament of the mentioned Emergency order , a new legal provision was added. That provision was changing the recently issued audiovisual law, by replacing the item “National Regulatory Authority for Communications” with “Ministry for Communications and Information Technology”, which meant that the Ministry was entitled to deal with all technical aspects of broadcasting. There was a new debate on that issue, concerning the possible political involvement in the decisions taken in audiovisual field. Joining this debate, ARCA argued that, according with the new telecom package directives of the European Commission, there was no special requirement regarding the political independence of the regulatory authorities in telecommunications. The directive no 21/ 2002 states that “Member States shall guarantee the independence of the national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organizations providing electronic communications networks, equipment or services”, but no more than this. The explanation for that is that some major European countries still assign the task to deal with the technical regulatory aspects of the broadcasting sector to the governmental bodies. As for the broadcasting regulatory authorities, The Council of Europe recommendation no 23/ 2000 on the independence of the regulatory authorities specifically regards bodies like the NAC, which is indeed politically autonomous.

• As mentioned before, only terrestrial broadcasting (by using a terrestrial frequency) implies an auction for getting the audiovisual licence. Since the new audiovisual law is in force, no auction was organized so far. The Council is supposed to issue regulations on organizing auction or on non-auction licences - a satellite licence decision was issued last week. The law states the overall specifications of a licence - it comprises: the number of the licence, the identification data of its holder, the type of program services, the name and identification elements of the program service, the general format of the program service and the structure of the programs, the broadcasting area, the validity period, the fees and taxes to be paid, the telecommunication means used for broadcasting and its holder, the assigned frequency or frequencies, according to case. Although fees and taxes are mentioned, there are actually no taxes for the audiovisual licence. As for the broadcasting licence, the law provides a tariff established by the Ministry for Communications for the use of the spectrum. The problem here is that, so far, only the monitoring of the spectrum, which is a service provided for the benefit of the broadcaster, implied a tariff. The use of the spectrum does not imply a service and should be subject to a tax, not to a tariff. Beyond that, the Ministry did not yet set up the level of those ”tariffs”.
The law contains provisions, specifically requested by the European Commission, allowing foreign broadcasting organizations to obtain licences.

D. The licence renewal and withdrawal

• The licence term is 9 years, both for radio and TV. The right of licence renewal offers another 9 years for operating it, thus providing a total reasonable period, in terms of repayment of invested funds.
• A local radio licence costs approximately EUR40, 000, while a television licence goes up to EUR200, 000. As for a national radio network, the investment raises to EUR6 to 8 million.
• The licence program format can be amended on the basis of the Council Council’s approval.
• The renewal of the licence was not allowed prior to the moment when the new law came into force. The licence renewals and transfers (the law states:”the audiovisual licence may be ceded to a third party only with the approval of the Council and if the new holder assumes all the liabilities deriving from the licence”) were the main interest points for the ARCA lobby. Immediately after the law came in force and the Council provisions were made available, a lot of licence transfers have been done. That phenomenon will continue up to the moment when the bad results of the ”local licence concept” mentioned above will disappear, letting the strong companies act as national networks and balance the economic difficulties implied by years of waste of resources caused by the ”local licence” practice. After the setting up of the market on better economic grounds, i.e. after the development of strong private national networks, the Council will probably try to protect the local licences where needed, based on specific evaluations and not on the automatic and non-sense mechanism of the ”local licence concept”.
• A licence can be withdrawn if the legal authorization procedures are not fulfilled, or, in special cases, when committing certain contravention inflicts or cause serious prejudices to the public interest, according the Council’s decision.
So far there were no licence withdrawals except for the ones based on authorization procedure failure. As for the already mentioned withdrawal of the OGINDA TV licence, The Council itself primarily motivated the licence withdrawal by the evaluation on “serious infringement of public interest”, while later an authorization procedure failure was also mentioned as a reason for the ”de iure” withdrawal of the licence. The last one seemed to be more realistic. Actually, while the mentioned licence ended due to a lack of completion regarding the legal procedures, there was no need for the Council to try to end it by using legal provisions related to content issues. The matter of fact is that while the licence was legally stopped as a result of the lack of the licence update procedure, the Council’s decision to stop the licence by content reasons is now ineffective and subject to a Court debate. The Court debate on that topic is also proving the effectiveness of the mechanisms for appeals against the Council decisions.

E. Monitoring the broadcasters’ compliance with their commitments and obligations under the law and the licence

• As mentioned above, Romania signed the European Convention on Transfrontier Television, but the ratification procedure is somehow confusing, although very close to an end.
• Except for some provisions related to the advertising field, the law does not make the difference that the Convention only refers to the television sector, but it applies the same regulations to the radio problems with the same power (despite the fact that ARCA always argued in favor of a specific treatment for radio broadcasting).
The monitoring of the program content is based on the approval of the Council regarding the program format based on its compliance with the licence provisions. Any other control of the program content can be done only after the program was broadcast. The Council is authorized to request and receive any necessary data from the broadcasters, as well as information and documents in order to accomplish its attributions, having the obligation to keep the confidentiality of the data that are not of a public nature. Secondary, regulations have so far stressed that a record of the program should be made available for the Council for 30 days.

• The regulatory authorities have the power to consider the complaints concerning the individual broadcasters’ activity and to publish their conclusions.

5. Licence conditions / Content regulation

A. Reflecting diversity of opinions

So far there have been no new licences granted on the basis of the new law. Because of the delay in harmonizing the legal provisions concerning the technical broadcasting authorizations (the above mentioned contradiction between the audiovisual law and the Emergency Order no 79/2002), no technical authorization has been delivered since the implementation of the audiovisual law. The procedure related to the beginning of the licence operations is also stopped for the same reason. ARCA intends to start a debate on that matter, if technical authorization procedures are not resumed in reasonable time.
The law includes provisions which could imply specific tasks for broadcsters.
There are no minimum news requirements in the law.
The law states that the Council have to act for the protection of the Romanian culture and language, as well as of the culture and languages of the ethnical minorities.
The law also states that “since the accession date, any radio broadcaster under the jurisdiction of Romania shall reserve a majority proportion of its broadcasting time to the European works, save the time dedicated to the news, sportive events, games, advertising, as well as teletext and teleshopping services. Until the accession date, a significant percentage shall be reserved to the Romanian audiovisual works”.
Recently, the Council issued a decision providing that the programs should broadcast at least 30% Romanian programs.
The provisions against hatred-centred and violence-provoking speeches are major issues set up according to the Constitution and the Convention for Human Rights, as well as to the recommendations of the Council of Europe: “The transmission of programs comprising any form of instigation to hatred due to race, religion, nationality, gender or sexual orientation is interdicted”

C. The protection of state interests and national security
There are no specific provisions in that respect in the audiovisual law.

D. Advertising and sponsorship

The provisions related to the advertising are strictly following the Directive for Television without Frontiers. We shall not quote those provisions here, as they are exactly the same as those of the Directive. With some exeptions, (i.e. the 45 and the 20 minute rules) those provisions also apply to the radio sector.
Certain limits are imposed to the public broadcasting companies which may insert advertising spots only between programs, including self promoting or teleshopping commecial ads, . Also, the total advertising time per hour is limitted to 8 minutes for the public broadcasters. Those provisions have been inserted in the law after a long debate on the financing of public broadcasting companies. ARCA was involved here, arguing on the basis of a study on public broadcaster funding made by EBU. The fact is that the public TV budget (witch joins 14% advertising revenues, 10 % from the state budget funding and the rest coming from public fees) overpasses with 50% the total budget (around $60 millionlast year) of the private TV broadcasters, which comes solely from advertising. This is why, among other reasons, there was a consensus to stimulate the increase of advertising revenues in private broadcasting.

Recently, the Council issued a decision restricting the advertising time for alcoholic distilled beverages. ARCA intends to argue against that decision by referring to the decisions of the European Court on similar issues (Gourmet judgment of the European Court). Also, ARCA intends to propose to the Council a fair understanding of the 45 minute rule, according to the judgment of the European Court of Justice, issued on October 28, 1999, which stresses that “in order to calculate the 45 minute period in order to determine the number of advertising interruptions allowed in the broadcasting of audiovisual works such as feature films and films made for television, the duration of the advertisements must be included in that period”. Similarly, the explanatory report on the Convention of Television without Frontiers stresses that the 45 minute rule has to allow the broadcaster “to determine at what point (of the 45 minute period) the interruption should occur”

H. Broadcasting standards

So far, there is no broadcaster ethic code, although ARCA intends to promote one. Actually, for instance, some of the ARCA actions involved overall agreements of the broadcasters to comply with the rules related to the copyright legislation. Those can practically be considered as being elements of such an ethic code.

I. Concentration of ownership
There are no limits in crossing the ownership concentration. As for avoiding the ownership concentration (in order to avoid dominant position in forming the public opinion) in the television or radio sectors only, the law states that “A radio broadcaster is considered to hold a dominant position in forming the public opinion at a national level when its market share exceeds 30% of the market of television programs broadcast at a national level. Establishing the market share of each national, regional or local radio broadcaster is performed annually by establishing the average market share registered during the respective year for the entire broadcasting duration”. ARCA did not consider that the market share (instead of the audience share) is the best instrument to evaluate the media concentration, when withdrawal of licences could follow, according to the law, if upper limits are overpasses. Also, we consider that there is another provision which is not reasonable enough: “A natural or legal person may become directly or indirectly a majority investor or shareholder at one single audiovisual company and may hold a maximum of 20% of the share capital of other companies”. This could imply that owners of small companies should be subject to such provisions, with no relevance to the media concentration issues.

George Chirita
Executive director
ARCA

November 25, 2002