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Mandatory Quota of Domestic Product: How Can We Support Broadcasters?

22 November 2017
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Olga Gututui,
Member of the Broadcasting Coordinating Council

“The domestic product shall be broadcast for at least eight hours daily, exclusively (fully) between 06:00 and 24:00. At least 6 hours of the domestic product shall be broadcast in prime time, of which at least 4 hours - in the state language.” This is the new formula of Article 11 (Protection of Linguistic, Cultural, and National Heritage) paragraph 2 of the Broadcasting Code, which entered into force on October 1, 2017.

When the amendment was still a draft, this rule generated controversial discussions among its authors on the one hand, and media experts and broadcasters on the other hand. Debates concerned not the need for such provisions, but rather the way they were to be implemented, given the production and financial capacity of some broadcasters. This aspect was also referred to in the opinions of European institutions. International experts have drawn attention to the fact that [...] amendments to Article 11 should be accompanied by wider opportunities so that broadcasters can expand their domestic production volume and prevent the risk of becoming financially unable to honor their legal obligations. (...)
8 hours of domestic product daily, of which at least 6 hours to be broadcast in prime time and at least 4 hours in Romanian
(...) Once entered into force, the new provisions of the Broadcasting Code have become mandatory for all audiovisual media outlets. Also noteworthy is the fact that legislators opted only for the concept of “domestic product,” excluding the one of “own product.” As a justification for their proposals, in the explanatory note to the draft law the authors mentioned: “... At the same time, in order to create premises for the development of national broadcasters and the promotion of domestic product, it is proposed to revise the minimum daily broadcasting volume, including broadcasting in the state language.”  In other words, these changes were aimed at the promotion of domestic production. To what extent this goal has been achieved remains to be seen.
Results of the first report on the monitoring of some broadcasters in terms of compliance with Article 11 (2) and (3) of the Broadcasting Code
By Decision no. 25/175 of October 10, 2017, issued at a public meeting, the BCC decided to carry out the first monitoring of the program services of 31 television stations in terms of compliance with the provisions of Article 11 (2) and (3) of the Broadcasting Code. The monitoring of each station was to be carried out for 24 hours.

The first monitoring found that some broadcasters conscientiously achieved the domestic product quota required by law. Personally, I divided the monitored media into several categories: broadcasters that made 8 hours and more of domestic product, including local broadcasters; broadcasters that made between 6 and 7 hours; broadcasters with 5 to 0 hours of domestic product. Paradoxically, precisely the outlets that have sufficient financial resources have failed to comply with the new legal provisions. (...)

However, I remain skeptical on certain segments, and when I say this I refer specifically to smaller, financially limited broadcasters. I am afraid that many of these broadcasters will not be able to make the 8 hours of domestic product. Moreover, we have the first signs confirming it. The Broadcasting Coordinating Council has already received a request to suspend the broadcast license under Article 24 of the Regulation on the procedure and conditions for issuance of broadcast licenses and retransmission authorizations, which allows the license holder to suspend the license for a period not exceeding 6 months. The reason invoked in the request to suspend the license was the lack of financial resources for the creation of 8 hours of domestic product.
Consequently, we come to discussions in public debates and to the recommendations of national and international experts. There is a clear need for a differentiated approach to the mandatory share of domestic product for broadcasters, as the production capacity of a local or regional broadcaster is different from that of a national broadcaster. Moreover, we also have the radio area, where domestic product shares can be complied with more easily than on television.

Sanctions for non-compliance with Article 11 (2) and (3)
For non-compliance with the provisions of Article 11 (2) and (3), broadcasters risk gradual penalties. At the first violation, broadcasters are sanctioned with public warning. For the second violation, the Code provides for a fine ranging from MDL 5,000 to MDL 10,000 (Article 38 (3) (i)). The third violation implies a fine from MDL 10,000 to MDL 15,000. The same Article 38 in paragraph 5 provides for a fine of MDL 15,000 to MDL 20,000 for repeat offenses referred to in paragraph 4. Violation of paragraph 5 repeated within 12 months shall be subject to a fine of MDL 25,000 to MDL 30,000. After that, broadcasters risk even tougher sanctions, such as suspension of the broadcast license.

Instead of a conclusion
So, on the one hand, the new changes might be a solution for the promotion of domestic product and, in particular, for the development of the domestic audiovisual market. On the other hand, these changes might be damaging to the work of broadcasters that, due to poor financial standing, will not be able to comply with the new legal provisions. The BCC has been given enormous responsibility, not only to continue monitoring in this regard, but also to identify the necessary solutions to support broadcasters in creating domestic product. (...) We are going to examine also other opportunities on this segment to support broadcasters and avoid the disappearance of some media outlets from the market.