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Olga Bolshakova

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Denis Gursky
Denis Gursky

The document discusses legal issues around regulating the introduction of digital TV in Ukraine. It addresses whether regulation should be done through law or by-law, and whether it should focus on the implementation process, ongoing activities, broadcasting, or creating programming. It also considers whether the goal of regulation should be ensuring media pluralism or technology development. The document analyzes these issues and concludes that parliament should set regulatory objectives through law to balance interests, while involving public discussion and experts to address their lack of technical expertise.

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Legal regulation of digital TV introduction in Ukraine Olga Bolshakova, Head of the Center of Legislative Initiatives Independent Association of Broadcasters
Legal Issues of Digital Television   The level of regulation: law or by-law (a state program, the development plan of TV radio area, etc.)   Subject of regulation:   implementation process or ongoing activities;   broadcasting or creating program product;   The objectives of regulation: to ensure media pluralism or the technology development.
LAW OR BY-LAW
Law   high social importance of regulated relations;   stability of regulated relations;   primary - regulation;   predetermination of the Constitutions;   competence of the subject of legislative activity.
The Constitution of Ukraine (extract) Article 92. Laws of Ukraine exclusively determine:   1) the rights and freedoms of person and citizen guarantees of these rights and freedoms ...   2) ... the status of foreigners and stateless persons;   3) the rights of indigenous peoples and national minorities;   4) the application of languages;   5) the principles of using of natural resources, ... organizations ...communications;   8) ... the competition rules and norms of antimonopoly regulation;   11) the basics of ... the media;   12) organization and activities of the executive branch ...;   17) the fundamentals of national security ... Paragraph 6 of Article 85. The authority of the Supreme Council of Ukraine includes: approval of national programs of economic, scientific, technical, social and cultural development ...
BY-LAW   complex topic that requires specialized knowledge;   significant number and variety of law enforcers;   Significant differences in the approaches to solving problems in different regions or for different parties of legal relations;   trend of quick change of regulatory relations.
Restrictions on freedom of rulemaking body of executive authority   definition of standard procedures for planning, preparation, disclosure and public discussion of draft laws and regulations;   definition of factors that should be taken into account when making decisions: for example, the criteria for competitive selection;   the boundaries for decision-making: for example, at least ¼ of the frequency resource for the purpose of broadcasting is given for local broadcasters.
CONCLUSIONS   Act:   Principles of providing access to radio frequencies (guarantee of the licensee and the distribution of the digital dividend):   limit concentration;   restrictions on foreign capital;   licensing procedures;   Requirements to program product: language broadcasting;   The legal status and procedures of the regulator.   By-laws::   The technical aspects of implementation;   Business model;   Other.
SUBJECT OF REGULATION
The process of implementation or ongoing activities:   Background: the stability of legislation - one of the basic guarantees of compliance;   Optimal solution: the law of the transitional regulations.   Reflection in the title: The Law of Ukraine "Regarding adopting corrections to the Law of Ukraine" On Television and Radio "in connection with the introduction of digital television (new edition)".   Reflection in the structure: transitional regulations should contain formulated general guarantee, which is provided to current licensees:   for frequency resources, sufficient to spread the same amount of software, which is distributed under a valid license;   for priority right to make investments in technical development of the multiplex and antenna-towers constructions, where equipment is planned to be placed.
Broadcasting or creation of program product   The essence of a specialized legislation on broadcasting: to provide the general principles of freedom of information in the context of limited radio frequency resources, i.e. regulation of access to radio frequencies.   Television and radio, in accordance with the law on information, are determined as media thus include means of distributing information for the indeterminate amount of people.   Broadcasting - is a licensed activity, and as an activity includes a complete production cycle, in result of which company gets ready for the sale products. The term "products" in the context of free TV means service of distribution of the advertising information during television program and mass audience can access it. In the context of pay-TV "product" means a service for providing subscribers’ access to television program. Both services involve both the creation of content and telecommunications services.
The principles of freedom of expression and regulation of broadcasting (Article 19) Principle 21: Licensing   21.4 In cases where the license applicant does not have its broadcast frequency, a single procedure is applicable: in case of positive decision on the application the broadcaster should be guaranteed the provision of frequencies in accordance with the obtained license.   21.5 The broadcaster who have got a license should have the right to choose: whether to transfer the signal independently or through a transmission company.
The principles of freedom of expression and regulation of broadcasting (Article 19) Principle 9: Frequency planning   9.1 At national and international level, decision-making on the allocation of frequencies among all users should be open to all interested parties, including broadcasting regulators, and should ensure the allocation of a sufficient number of broadcast frequencies.   9.2 A mechanism for planning regarding frequencies allocated for broadcasting is needed, in order to ensure their optimal use in terms of diversity. This process should be open to all interested parties and should be monitored by the institution which is free from political and commercial interference. After the adoption of the frequency plan it should be the published.   9.3 Frequency plan is designed to ensure an equitable distribution of broadcasting frequencies, among the three broadcasting sectors (public, commercial and community), two types of broadcasting (radio and television) and broadcasters with a variety of outreach (national, regional and local) taking into account the interests of society.   9.4 Frequency plan can include the reservation of certain frequencies for future use by certain categories of broadcasters, in order to ensure diversity and equal access to the air over time.
Conclusions   The law shall regulate the legal relations in the area of broadcasting since the introduction of digital television;   The law shall guarantee the right of the broadcaster to use a specific frequency resources and necessary means of telecommunication, as well as provide mechanisms to enforce these rights.
PURPOSE OF REGULATION: BALANCE OF INTERESTS
Media pluralism   Strict antitrust restrictions;   Strict requirements for the program product (such as quotas for own product, information, children's programs, etc.);   Minimum license fee;   State funding of the introduction of digital broadcasting;   Qualitative research interests of the audience.
Technology development   No restrictions on investments to the industry;   Minimum content requirements;   The auction of frequencies - the maximum license fee;   Minimal impact on the development of the State TV radio area;   Minimum time for launching digital television.
Balance of interests   The method of compromise: "soft" investment restrictions, partial state financing, the auction of frequencies with the "soft conditions";   Combined approach:   part multiplexes created by the State to ensure pluralism of information,   part - of the licensee as a guarantee of their rights to license renewal and stability of business,   part – is put up for free auction.
Conclusions   Parliament should take responsibility for setting regulatory objectives and the balance of interests;   Deputies have lack of expertise, which can be replaced by broad public discussion of the problems, by involving experts and conducting of high-quality public opinion polls;   Goals should be clearly stated in the preamble of the law, which will be then used for the interpretation of separate regulations.
THANK YOU!

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Olga Bolshakova

  • 1. Legal regulation of digital TV introduction in Ukraine Olga Bolshakova, Head of the Center of Legislative Initiatives Independent Association of Broadcasters
  • 2. Legal Issues of Digital Television   The level of regulation: law or by-law (a state program, the development plan of TV radio area, etc.)   Subject of regulation:   implementation process or ongoing activities;   broadcasting or creating program product;   The objectives of regulation: to ensure media pluralism or the technology development.
  • 4. Law   high social importance of regulated relations;   stability of regulated relations;   primary - regulation;   predetermination of the Constitutions;   competence of the subject of legislative activity.
  • 5. The Constitution of Ukraine (extract) Article 92. Laws of Ukraine exclusively determine:   1) the rights and freedoms of person and citizen guarantees of these rights and freedoms ...   2) ... the status of foreigners and stateless persons;   3) the rights of indigenous peoples and national minorities;   4) the application of languages;   5) the principles of using of natural resources, ... organizations ...communications;   8) ... the competition rules and norms of antimonopoly regulation;   11) the basics of ... the media;   12) organization and activities of the executive branch ...;   17) the fundamentals of national security ... Paragraph 6 of Article 85. The authority of the Supreme Council of Ukraine includes: approval of national programs of economic, scientific, technical, social and cultural development ...
  • 6. BY-LAW   complex topic that requires specialized knowledge;   significant number and variety of law enforcers;   Significant differences in the approaches to solving problems in different regions or for different parties of legal relations;   trend of quick change of regulatory relations.
  • 7. Restrictions on freedom of rulemaking body of executive authority   definition of standard procedures for planning, preparation, disclosure and public discussion of draft laws and regulations;   definition of factors that should be taken into account when making decisions: for example, the criteria for competitive selection;   the boundaries for decision-making: for example, at least ¼ of the frequency resource for the purpose of broadcasting is given for local broadcasters.
  • 8. CONCLUSIONS   Act:   Principles of providing access to radio frequencies (guarantee of the licensee and the distribution of the digital dividend):   limit concentration;   restrictions on foreign capital;   licensing procedures;   Requirements to program product: language broadcasting;   The legal status and procedures of the regulator.   By-laws::   The technical aspects of implementation;   Business model;   Other.
  • 10. The process of implementation or ongoing activities:   Background: the stability of legislation - one of the basic guarantees of compliance;   Optimal solution: the law of the transitional regulations.   Reflection in the title: The Law of Ukraine "Regarding adopting corrections to the Law of Ukraine" On Television and Radio "in connection with the introduction of digital television (new edition)".   Reflection in the structure: transitional regulations should contain formulated general guarantee, which is provided to current licensees:   for frequency resources, sufficient to spread the same amount of software, which is distributed under a valid license;   for priority right to make investments in technical development of the multiplex and antenna-towers constructions, where equipment is planned to be placed.
  • 11. Broadcasting or creation of program product   The essence of a specialized legislation on broadcasting: to provide the general principles of freedom of information in the context of limited radio frequency resources, i.e. regulation of access to radio frequencies.   Television and radio, in accordance with the law on information, are determined as media thus include means of distributing information for the indeterminate amount of people.   Broadcasting - is a licensed activity, and as an activity includes a complete production cycle, in result of which company gets ready for the sale products. The term "products" in the context of free TV means service of distribution of the advertising information during television program and mass audience can access it. In the context of pay-TV "product" means a service for providing subscribers’ access to television program. Both services involve both the creation of content and telecommunications services.
  • 12. The principles of freedom of expression and regulation of broadcasting (Article 19) Principle 21: Licensing   21.4 In cases where the license applicant does not have its broadcast frequency, a single procedure is applicable: in case of positive decision on the application the broadcaster should be guaranteed the provision of frequencies in accordance with the obtained license.   21.5 The broadcaster who have got a license should have the right to choose: whether to transfer the signal independently or through a transmission company.
  • 13. The principles of freedom of expression and regulation of broadcasting (Article 19) Principle 9: Frequency planning   9.1 At national and international level, decision-making on the allocation of frequencies among all users should be open to all interested parties, including broadcasting regulators, and should ensure the allocation of a sufficient number of broadcast frequencies.   9.2 A mechanism for planning regarding frequencies allocated for broadcasting is needed, in order to ensure their optimal use in terms of diversity. This process should be open to all interested parties and should be monitored by the institution which is free from political and commercial interference. After the adoption of the frequency plan it should be the published.   9.3 Frequency plan is designed to ensure an equitable distribution of broadcasting frequencies, among the three broadcasting sectors (public, commercial and community), two types of broadcasting (radio and television) and broadcasters with a variety of outreach (national, regional and local) taking into account the interests of society.   9.4 Frequency plan can include the reservation of certain frequencies for future use by certain categories of broadcasters, in order to ensure diversity and equal access to the air over time.
  • 14. Conclusions   The law shall regulate the legal relations in the area of broadcasting since the introduction of digital television;   The law shall guarantee the right of the broadcaster to use a specific frequency resources and necessary means of telecommunication, as well as provide mechanisms to enforce these rights.
  • 16. Media pluralism   Strict antitrust restrictions;   Strict requirements for the program product (such as quotas for own product, information, children's programs, etc.);   Minimum license fee;   State funding of the introduction of digital broadcasting;   Qualitative research interests of the audience.
  • 17. Technology development   No restrictions on investments to the industry;   Minimum content requirements;   The auction of frequencies - the maximum license fee;   Minimal impact on the development of the State TV radio area;   Minimum time for launching digital television.
  • 18. Balance of interests   The method of compromise: "soft" investment restrictions, partial state financing, the auction of frequencies with the "soft conditions";   Combined approach:   part multiplexes created by the State to ensure pluralism of information,   part - of the licensee as a guarantee of their rights to license renewal and stability of business,   part – is put up for free auction.
  • 19. Conclusions   Parliament should take responsibility for setting regulatory objectives and the balance of interests;   Deputies have lack of expertise, which can be replaced by broad public discussion of the problems, by involving experts and conducting of high-quality public opinion polls;   Goals should be clearly stated in the preamble of the law, which will be then used for the interpretation of separate regulations.