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20 July 2022

Regulatory reminder Ukraine: 1 August 2022 is the deadline for foreign broadcasters whose TV channels were authorised for retransmission before 1 February 2022

On 1 February 2022, the Procedure for Forming the List of TV Channels 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 upgrade the procedure of inclusion foreign IT channels 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 compliance criteria. In our previous overview we outlined the new regulatory landscape for all foreign TV channels under the Procedure. However, there are also foreign TV channels which are placed on the priority watch list and which broadcasters will be among the first which will have a chance to crash test the Procedure.

In particular, July 2022 is the busiest time of the year for those foreign broadcasters whose TV channels were included in the List before 1 February 2022 (before the date of entry into force of the Procedure). The Procedure sets forth a special requirement for updating information for such TV and radio broadcasters.

More specifically, a foreign broadcaster of every such TV channel 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.

If foreign broadcaster fails to submit documents for updating the information on the basis of which the decision to include in the List was made in the past, TV channel(s) will be excluded from the List (para. 16 of the Procedure).

In this regulatory reminder, we pay attention to two important aspects for foreign broadcasters to consider:

  • No deadline suspension or extension, but individual exemption is still possible. Given the importance of the media front during the Russia-Ukraine war, the National Council neither extended nor suspended the deadline for foreign broadcasters. However, based on official written clarification we obtained from the National Council, there is some room for maneuver for foreign broadcasters. According to the National Council, in case the applicant is unable to submit an application or related documents on time, it can submit the respective request for deadline extension to the regulator. The request should contain a substantiation of inability to submit the application or related documents on time. The National Council can satisfy the request and extend the submission deadline if there are good grounds of extension, and they are caused by the martial law in Ukraine.

In light of the National Council’s response above, the extension is generally possible, but the applicant needs to justify that it faces difficulties in providing some piece of information and/or documents and such difficulties are caused somehow by the martial law in Ukraine (i.e., it should be treated as force-majeure circumstances). It is advisable to submit the request for deadline extension as early as possible before 1 August 2022.

  • The National Council takes a rather formalistic approach with regard to compliance with the Procedure. In particular, as the adopted Procedure does not set forth a suspension of consideration of the submitted application, nor sending a request for additional information by the regulator in case the submitted documents do not fully comply with the requirements under the Procedure, the regulator will very likely leave the application without consideration. The National Council will notify the applicant in writing about leaving the application without consideration stating the grounds.

In light of such formalistic approach, it is advisable for foreign broadcasters to submit the package of documents as early as practicable before 1 August 2022, so that in case the application is left without consideration, there is still sufficient time to re-submit it before 1 August 2022.

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.

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