What’s new? What are the requirements? What should foreign broadcasters in the “old” list do?
On 1 February 2022, the Procedure for Forming the List of Programmes of Foreign Broadcasters to be Retransmitted (the “Procedure”), approved by decision No. 1727 of the National Council of Television and Radio Broadcasting of Ukraine (the “National Council“) dated 18 November 2021, came into force. The main purpose of the adopted Procedure is to introduce more details to the procedure of inclusion in the List of programmes of foreign television and radio broadcasters that are allowed to be retransmitted (the “List”), establishing a clearer procedure, deadlines, and criteria.
Prior to the adoption of the Procedure, the procedure for including foreign channels allowed for retransmission in Ukraine was quite simple and non-formalised. A free-form application was necessary, while it was possible to rely on an unofficial template posted on the National Council’s website. The same website also contained the list of minimum documents to be submitted along with the application. The said list of documents also included several short paragraphs outlining the procedure of consideration the submitted documents by the National Council’s. Prior to the Procedure, the National Council made attempts to adopt such a procedure; but for various reasons, it did not happen. To some extent, the procedure was delayed in expectation of a new media law. At present, the fact that the procedure was adopted can be seen as a sign that the new media law is unlikely to be adopted in the near future (at least by the end of 2022) and that the National Council has decided to move towards improving the retransmission of foreign broadcasters without expecting a complete reload of the media legislation.
In this review we provide a brief analysis of the new requirements.
Application and supporting documents
The Procedure contains an official application template that the rights holder (producer) of the foreign TV channel or its representative must fill out and submit to the National Council. Compared to the previous practices of the National Council, the new template is more detailed and aims to provide more information for the National Council.
As expected, the application should contain general information on the foreign TV and radio broadcaster and the programme (TV channel) intended to be retransmitted as well as technical and programme parameters of broadcasting.
In addition to the expected scope of information to be provided, it is also necessary to provide the National Council with information for the latter to determine the origin of the channel. In particular, the application must provide information on:
Taking into account the grounds for leaving the application without consideration under para. 15 of the Procedure, the main focus of this preliminary “audit” is primarily to check the ties of the broadcaster, programmes of which are to be intended to be retransmitted, with the Russian Federation. In particular, the National Council is to leave the application without consideration if it is established that:
In general, the provisions of the Procedure correspond to the ideas and proposals that the representatives of the National Council have expressed before, because Russian-language channels are most often retransmitted in Ukraine.
In terms of programme parameters of broadcasting, it will be necessary to provide information on the language of the programme, the availability of audio track or subtitles in Ukrainian or a language of the indigenous peoples of Ukraine (para. 16 of the Procedure). The application will also need to include information on the presence/absence of programmes that may be harmful to children and adolescents as well as the presence/absence of age marks/video classification icons (if any).
It should be indicated whether the presence/absence of advertising is planned to be retransmitted in Ukraine with proof of payment to the Ukrainian legal entity (item 18 of the application). We expect that this should help to enforce the provisions of para. 9 of Art. 13 of the Law of Ukraine “On Advertising” No. 270/96-ВР dated 03 July 1996 on broadcasting (retransmission) of foreign advertising more effectively.
As for the attachments to the application, only one obligatory document should be attached to it – a copy of the permit issued in the country of the programme’s origin (license, certificate of registration, etc.). A copy of this document must be translated into Ukrainian and notarised.
In case of incomplete information in the application and/or attaching an incomplete set of documents to the application, the National Council leaves the application without consideration (para. 15 of the Procedure). The National Council shall notify the applicant in writing of leaving the application without consideration stating the grounds.
Can the National Council require additional documents?
The National Council also has the right to require additional information from a foreign TV and radio broadcaster or its representative (para. 8 of the Procedure). The only declared purpose of such a request is the need to check whether the programme’s content of foreign TV and radio broadcaster is compliant with legal requirements. An exhaustive list of references to specific provisions of the European Convention on Transfrontier Television ETS No. 132 dated 5 May 1989 (the “Convention“) is stated as a basis for the additional information request of the National Council (para. 8 of the Procedure). At the same time, considering the referenced Convention’s provisions, it can be argued that the additional request can cover not only the programme’s content but also, for example, location and status of broadcaster, name of legal representative, capital structure; the nature, purpose, and procedure for financing programme service that the broadcaster provides or intends to provide. Obviously, this information is needed not so much for the programme’s content as for the mentioned “audit” of the National Council, in particular, to check the ties with the Russian Federation.
Notably, according to para. 8 of the Procedure, the National Council must request additional information from a foreign TV and radio broadcaster or its authorised representative. However, the provisions of the Convention referred to in para. 8 of the Procedure (especially considering the official English text of the Convention) indicate the necessity to contact a competent (regulatory) authority of another country, which is a party to the Convention, rather than the broadcaster or its representative. Contacting the competent authority of another country also seems more logical in the context of the Convention’s provisions since it allows the National Council to verify the information provided by the rights holder as well as to collect additional information from an impartial party. It will be interesting to see how law enforcement practice regarding this provision of the Procedure develops. We do not rule out that the National Council will practice both approaches, i.e., requesting to the broadcaster or its authorised representative and the competent authority of another country that is a party to the Convention.
In any case, a failure to respond to an additional request of the National Council or incomplete response is likely to be considered as incomplete information and/or incomplete set of documents to the application and, accordingly, will lead to leaving the application without consideration under para. 15 of the Procedure.
The National Council shall include TV programmes in the List, making an appropriate decision based on the submitted documents, as well as the results of official monitoring of the TV programme or its recording. To conduct monitoring, the applicant must provide access to a TV programme or its recording of at least 24 hours long (para. 10 of the Procedure). If monitoring of the programme of a foreign TV and radio broadcaster is impossible, the application will be left without consideration (para. 15 of the Procedure).
Prior to the adoption of the Procedure, the deadlines for the application’s consideration and attached documents were not clearly regulated. Currently, para. 12 of the Procedure stipulates that the application is considered and a decision is made within three months from the date of its receipt by the National Council.
This period may be extended if the National Council requests additional information necessary to decide on the application from a foreign TV and radio broadcaster or its authorised representative. In this case, the duration of the application’s consideration is extended for the period of receipt of a response, but not more than six months (para. 8 of the Procedure). The procedure does not establish the need for the National Council to take a separate decision on the extension; at the same time, a separate decision seems appropriate for proper interaction with the applicant or its representative.
Deadlines for updating information for those already included in the List
As a general rule provided for in para. 16 of the Procedure, foreign broadcasters included in the List confirm their intention to retransmit by March 31 of every third calendar year after their inclusion in the List, by confirming or updating all information and documents on the basis of which the decision to include them in the List was made.
The procedure does not specify any information that needs to be notified to the National Council by the above deadline (for example, in the case of a change in the logo, location of a TV and radio broadcaster, or a change of a local distributor of a TV and radio programme). At the same time, given the long general duration for periodic information updates, we do not rule out that the practice may be that information will be updated by foreign broadcasters more often, in particular, to ensure compliance with certain requirements of television and radio legislation.
A special requirement for updating information is set for those foreign broadcasters whose programmes are already included in the List as of 1 February 2022 (as of the date of entry into force of the Procedure). Such TV and radio broadcasters shall, within six months from the date of Procedure’s entry into force, be obliged to update the information and documents on the basis of which the decision for inclusion in the List was made. In other words, information and documents on the basis of which the decision was made must be updated by 1 August 2022. The established six-month period is the period during which the application must be submitted to the National Council in accordance with the Procedure. Thus, a certain “check-up” of the market is expected, bringing it in line with the requirements of the new Procedure.
It should be noted that failure to submit documents for updating the information on the basis of which the decision to include in the List was made, is a ground for exclusion from the List (para. 16 of the Procedure).
For further information, please contact Oleg Klymchuk
Information contained in this legal alert is for general information purposes only, does not constitute legal or other professional advice, and should not be relied upon as a substitute for specific professional advice tailored to particular circumstances.