FREE AIRWAVES PROJECT STATEMENT: OPINION ON PROPOSED CHANGES TO LAW ON TELEVISION AND RADIO BROADCASTING

March 10th, 2009
The foremost information source for people in Azerbaijan is TV, and therefore, TV has the strongest ability to form public opinion.

Proper regulation of the TV and radio spheres serves to ensure independence, the development of high technical and content standards and pluralism.
The law on “Television and Radio Broadcasting,” adopted in Azerbaijan in 2002, was the first vital step towards regulating the broadcast media sector. However, this law did not ensure the independence of the regulatory agency for the broadcasting sphere, it did not lay out a clear and transparent process for the granting of broadcast licenses, and it did not establish rules for the effective use and fair distribution of broadcast frequencies. Because the law was not well written, during the application of confused clauses, problems arise and people applying the law can interpret the legislation any way they choose.
There is a serious need to replace entirely the law on “Television and Radio Broadcasting” in order to increase development in the area of broadcasting and technical and content quality, to create an environment where broadcasters are free and independent and there is effective and unimpeded competition, and to ensure the existence of an independent and professional regulatory agency for the broadcast sphere.
Azerbaijan’s Milli Mejlis has put up for debate a bill including proposed changes and additions to the existing law on “Television and Radio Broadcasting.”  The exclusion of the media and experts from debate and preparation of this bill arouses immediate concerns about transparency.
Some of the changes are not significant and warrant no commentary. However, some of the proposed changes will create serious complications and we have focused on them:
1. According to the proposed change to Article 10.5 of the law on Television and Radio Broadcasting,” relevant government agencies must be informed about any proposed changes in the ownership or shares of a private TV or radio broadcaster.  Within two months, the government will express its opinion about whether the proposed change comports to the law on Tele-radio Broadcasting, and then the changes shall be made. Private broadcasters have one month to present to relevant government agencies new documents reflecting the change.
This proposed change creates an opportunity for unnecessary interference and causes the release of trade secrets related regarding sales.  Although this rule of getting advance permissions is intended to determine if broadcast media ownership comports to the rules stipulated in Article 10, this cannot be considered adequate. It would be sufficient to have supervision and to provide the National Television and Radio Council with information after ownership changes are made.
2. According to the proposed change to Article 11.4.6, in necessary cases (events are significant to the public, elections, important athletic competitions, etc.) foreign television and radio stations have permission to broadcast via satellite within Azerbaijan.
The rule established through this change is not related to broadcasts and places a limitation on broadcasting via satellite. This change can be interpreted to mean that satellite broadcasts of video and audio material can only occur with permission from the National Television and Radio Council.
This proposed change creates countless questions. Equipment capable of transferring audio and visual material is not just associated with the broadcast media sphere; satellite telephones and various other means are capable of doing this. Audio and visual material can even be sent via internet or mobile telephone, something nearly everyone is capable of doing. From this perspective, it is illogical to place limitations only on foreign TV and radio broadcasters regarding satellite broadcasts. It is not clear what goal of this law this proposed change corresponds to. In any case, regardless, this interference should be seen as inappropriate.
3.  According to the proposed change to Article 23.1, is the demands of this law and/or the rules and conditions of special agreements (licenses) are violated a special agreement (license) can be temporarily or the broadcasting of a particular program can revoked for up to one month through a court decision. This period was previously up to seven days.
A one-month cessation of broadcasts is a very serious sanction. The cases in which such a sanction can be applied must be clearly shown in the law to prevent abuse and opportunities for disproportional interference.
4. According to the proposed change to Article 23.2.6, a case in which special agreements (licenses) can be revoked has been added, and that case is when a broadcaster is sanctioned by relevant government agencies three times or more within one year.
In this proposed change, it is unclear was sanctions and government agencies are being referred to in the expressions “broadcaster subjected to sanctions a minimum of three times within one year by relevant government agencies,” “relevant government agencies,” and “subjected to sanctions three times.” It can be hypothesized that the relevant government agency is the National Television and Radio Council. This Council only has the ability to apply small sanctions, namely to institute small fines and issue warnings for minor law violations. To revoke the licenses of broadcasters who commit these minor violations is illogical, unjust and seems disproportional. The application of serious sanctions like revoking permanently or temporarily a broadcasting license should only be within the authority of the courts. It is not the practice in Azerbaijan to refer to courts as relevant government agencies.
In the near past, the National Television and Radio Council attempted to apply a similar argument when it revoked ANS’ license in November 2006.
5. According to the proposed change to Article 37.3, broadcasters must broadcast the same programming on their frequency throughout Azerbaijan (bans localized broadcasting). This limitation could potentially make it difficult for broadcasters to use most effectively their frequencies. It is difficult to justify the institution of this rule, which prevents programs oriented towards certain regions. In addition, in the switch to digital broadcasting, which is expected to occur in the near future in Azerbaijan, it will become possible for one frequency to be broadcast on several channels. From this perspective, the application of the rule proposed in Article 37.3 seems remote from public interest and cannot be considered correct.
In general, the proposed changes appear to create unfounded limitations on the activities of broadcasters, needlessly increase the authority of the National Television and Radio Council, and restrict the development of broadcasters.
Media Rights Institute and the Institute for Reporters’ Freedom and Safety call for necessary measures to be taken to present these digressional changes and additions from being accepted and the preparation and adoption of new legislation that will foster development in the television and radio sphere.
*The statement was prepared within the framework of the Free Airwaves Project. Free Airwaves is a 22-month project being implemented jointly by the Institute for Reporters’ Freedom and Safety, Media Rights Institute and Holland School of Journalism, with support from the European Commission. The project focuses on the broadcast media.