Post-Soviet Media Law & Policy Newsletter
Issue 10 Benjamin
N. Cardozo School of Law September 10, 1994
USAID MEDIA PARTNERSHIP GRANTS: Further Details
In the last issue of the newsletter, we printed excerpts
from the major USAID request for applications to manage the US-Russia Media
Partnership Program. The deadline for applications for proposals
was August 15, 1994 and it is expected that an award will be made by the
end of the fiscal year.
The process of selecting among grantees and who was
jockeying for inclusion is amazingly complicated. Some insight into
a fairly closed process can be gained from reviewing a document issued
August 1, 1994 which amended the grant application process to provide questions
and answers posed by prospective applicants. We include a portion
of those questions and answers here.
Q. In Section IV, the RFA specifies: “In
consultation with the Management Group, USAID will select the final 10-20
from these two lists. Selections will be made within one month after
receiving each list.” In order for this program to be embraced by
media organizations in the United States (and in Russia, too) it must
be seen as being free of political ideology, dedicated only to strengthening
freedom of the press in Russia. U.S. media organizations have a general
fear of government-sponsored programs involving the press, especially when
large sums of money for equipment are involved. The question is:
can the RFA be amended so the final selection of partnerships is made by
the Management Group, in consultation with USAID, USIS and the advisory
committee? Florida International University)
A. The final selection of partnerships will be
made jointly by the Management Group and USAID. USAID is required
to be involved in this procedure to avoid conflicts of interest on the
part of the Management Group. USAID also has information that may
be useful in the final selection of partnerships.
Q. While the objective of the RFA is the development
of financially viable and politically independent non-governmental media,
we are concerned about the ultimate viability of this objective given the
nature of current governmental impediments. While the RFA provides
for conferences on legal and regulatory issues which impede the development
of the russian media, it does not address such major impediments as state
control of newsprint production, the unpredictability of increases in media
licensing fees. etc. Does the Agency have plans to address these
issues through other means? If so, please explain what is envisioned.
(Institute of International Education)
A. Issues such as state control of newsprint production
and media licensing fees directly impinge upon the financial viability
and political independence of the nongovernmental media in Russia.
It is consequently possible to establish a partnership to address these
concerns. Such a partnership might involve media support or advocacy
organizations in the U.S. and Russia. Plans for further USAID activities
in these areas have not yet been made.
Q. The program states that it is seeking “competition”
between potential U.S. partners interested in participating in the project.
On what basis does USAID anticipate that these partners would “compete”
to be allowed to be in a partnership? What specific incentives for
such competition does USAID foresee? (Internews)
A. USAID’s policy is to award its funding on a
competitive basis. Selections of U.S. partners should thus be carried
out competitively to the greatest extent possible. As far as incentives
for competition are concerned, the Program offers participant U.S. organizations
the opportunity to establish long-term relationships with independent media
organizations in Russia and provides support for a wide range of cooperative
projects with such organizations.
Q. Can we pay American partners directly to help
supply television programming for Russia? (Internews)
A. Yes, if such an activity is deemed by the Management
Group to be the best use of available funds. The Management Group
might also investigate other funding opportunities for programming acquisition
outside of USAID.
Q. The Corporation for Public Broadcasting (CPB)
is a private, nonprofit organizations created by an act of Congress.
It is not owned by public broadcasting stations, nor are they subsidiaries.
If CPB is a member of the Management Group Consortium in the U.S.-Russia
Media Partnership Program, will that in any way effect the eligibility
of public broadcasting stations to participate as partners? (Corporation
for Public Broadcasting)
A. No, public broadcasting stations would be eligible
for partnerships if CPB were a member of the Management Group, provided
that CPB recuse itself from all selection procedures in which these stations
are potential candidates.
Q. We ask that the Agency provide guidance on
the following questions concerning the financial parameters of the Program.
What ratio does the Agency have in mind for the allocation of total funding
for the Management Group vis-a-vis the partnerships? Within each
partnership, what ratio does the Agency have in mind as to the amounts
allocated to a) partnership administration, b) equipment purchases/shipping,
and c) partnership cooperative activities? What is the funding ceiling
for the U.S.-Russian Media Partnership Program? (Institute of International
Education)
A. The estimated total funding for the program
is $10 million. USAID does not expect the total administrative costs
of the Management Group to exceed 10% of this amount. USAID has not
established binding financial parameters for allocations of funds within
partnerships. We strongly encourage organizations competing to participate
in the Management Group to propose allocations most suitable to their vision
of program needs.
Q. Since the RFA precludes the recovery of salary
and overhead expenses incurred in developing and undertaking partnership
activities, would the Agency be willing to authorize the payment of consulting
fees (in addition to normal travel expenses) for the time a partner organization
spent in the field developing and undertaking partnership activities?
(Institute of International Education)
A. The payment of consulting fees to representatives
of U.S. partner organizations will be allowed to the extent that these
fees are deemed necessary by the Management Group to carry out partnership
activities. In all likelihood this would be the case primarily for
longer consultations. Conditions for the use of such fees will be
determined jointly by the Management Group and USAID.
Q. As to the purchase or donation of media equipment,
many items of U.S. origin would not be compatible with Russia electrical
and other (i.e. Pal television) infrastructure. Will source and origin
waivers be easily obtainable? (Institute of International Education)
A. USAID hopes to obtain source and origin waivers
to purchase foreign-made media equipment for this program and hopes to
guarantee duty-free entry of purchased and donated equipment into Russia.
At this time, however, USAID can make no commitments on these subjects.
Developments in Licensing and Registration
Aleksei Samokhalov has recently become a legal advisor
to the Russian Federal Service on Radio and Television Broadcasting.
We are pleased to publish an excerpt from his recent overview of Russian
laws relating to the media:
The Statute “On Mass Media,” enacted on February 8,
1992, is the main legislative act of the Russian Federation regulating
the media (i.e., a periodic publication, radio, television, video program,
or any other form of distribution of mass information). Under the
statute, a media outlet may be founded by a private individual, an enterprise,
organization, state body, or any combination of the above entities.
Let me summarize some current issues:
Licensing: Existing law requires that broadcasters obtain
a broadcasting license obtained from the federal or regional Licensing
Commission. However, these Commissions have never been established, so
the procedure is being executed in accordance with Decree No. 500 of September
26, 1991 “On Licensing of Television Broadcasting, Radio Broadcasting,
and Communication Activity in the Field of Television and Radio Broadcasting
in RSFSR.” This decree empowers the Ministry of Press and Information (defunct
since February, 1994) to issue broadcasting licenses with the consent of
the Ministry of Communications and on the basis of recommendation from
the Commission on Broadcasting.
A license to use a frequency is to be issued by the
Communications Ministry with the consent of the Press Ministry and the
State Broadcasting Company of Russia. The applications for these non-transferable
licenses must be reviewed within three months and are effective for five
years.
I have recently drafted the new provisional regulations
“On Licensing of TV and Radio Broadcasting” which are being considered
by the Russian government. These new provisional regulations will create
only one type of license instead of two licenses. If adopted, these regulations
would control until the introduction of the Broadcasting Statute that is
currently under review by Parliament.
For example, licensing would be done by the Federal
Service on Television and Radio Broadcasting in accordance with its statute
adopted on May 7, 1994 (Decree No. 458, Rossiyskaya gazeta May 19, 1994).
Except for the licensing and registration of both state and non-state broadcasting
entities, this statute (which I also drafted) requires the Federal Service
to:
— coordinate the activity of national and regional state
T.V. and radio broadcasting companies;
— promote the dissemination of objective information
to the Russian and world public concerning the political, economic, and
socio-cultural life of Russia;
— participate in the drafting of legal and other normative
acts in the field of broadcasting;
— create a uniform state policy for resolving industrial,
technical, and financial issues, as well as issues involving scientific
research and training in the sphere of broadcasting.
Registration: The abolition of the State Inspectorate
on Defense of the Freedom of the Press presents some interesting problems.
If the founder of a press publication wants to disseminate it throughout
Russia, abroad, or several provinces, registration must be done by the
Federal Committee on the Press. In all other cases, the registration
was to have been done by the territorial bodies of the Inspectorate. However,
on July 31, 1994, the Decree of the Russian Government abolished the Inspectorate
and has not created a system of registering local publications.
How much does it cost to register? The current
formula is based on an inflation-adjusted quantum called “minimum wages.”
Founders of media must pay 10 minimum monthly wages (about USD 90) for
registering national or inter-regional publications, and 15 minimum wages
(USD 130) for the registration of broadcasting entities. Foreign
entities must pay USD 500.
Under Article 19 of the Statute, if the mass media entity
is organized as an enterprise it shall also be registered in accordance
with the Russian Statute on Enterprises and Enterprising Activity, and
thus can engage in activities other than those involving mass media.
Since no legislation on non-profit entities has been adopted, it is difficult
for non-commercial mass media to be registered as such.
Advertising: The 1992 Mass Media Statute regulates certain
aspects of the contents of broadcasting materials. For example, advertising
shall not exceed 25 percent of total air time, while non-coded erotic programming
is allowed only between 11pm and 4am. Advertising of alcoholic drinks and
tobacco products is prohibited by the 1993 Statute on Health Care in Russia,
but it has not stopped such ads, since responsibility for the violation
of this provision or a formula of what constitutes an advertisement has
not been worked out. Advertisers argue that they provide information
about alcohol and tobacco but not advertising. The Decree of the President
“On Protection of Consumers from Unfair Advertising” of June 10, 1994 establishes
a procedure to punish unfair advertisers in the sphere of banking, insurance,
and financial services.
The Decree envisions withdrawing business licenses from
the financial companies that promise unrealistic dividends and profits
in their advertisements.
Copyright: The 1993 Copyright Statute (see PSMLPN, Issue
3, p.3-5) states that audiovisual works (such as, movies, TV, and video
films) are objects of copyright protection (Article 7), while directors,
screenplay writers, and composers are owners of the products (Article 13).
Articles 40, 41, and 42 of the Statute establish the rights of broadcasting
and cable entities to record programs and use them in any form with certain
limitations. The Statute is not clear as to whether the broadcasting
entities keep the copyright on the listing of their programs or they are
public property.
Freedom of information in Russia is based on Presidential
Decree # 377 “On the Guarantees of Informational Stability and Broadcasting
Standards” of March 20, 1993. Its minimum standard, that fully conforms
to international treaties, includes:
— the option to choose from different programming in
accordance with the regional, national and other interests of the audiences;
— a combination of the freedom of opinion with the right
of reply;
— protection of a program’s artistic integrity by not
allowing advertisements to disrupt a program;
— journalistic responsibility for the information they
supply;
— journalistic independence from political parties and
partisan positions.
Access to Information: Another Presidential Decree—“On
Additional Guarantees of Citizens’ Rights to Information” (of December
31, 1993; see PSMLPN Issue 4, p.2-3) provides for the creation of a system
(still non-existent) of informing the public of the activity of state bodies
and on new legal acts.
Taxation: Numerous Presidential decrees provide for
tax relief for state television and radio companies. They are not
required to sell a portion of their hard currency earnings to the state
at fixed rates, nor are they required to pay value-added taxes or duties
on imported equipment.
Draft Legislation: The State Duma is discussing drafts
of the Broadcasting Statute, the Bill on Advertising, and the Bill on the
State Support for the Mass Media. The latter envisions the creation
of the National Fund for Development of Mass Media which would control
stocks of the state-run national TV and radio entities, publishers, publications,
etc. It would also decide the amount of state support these entities
would receive. Unfortunately, Russian journalists have few means of influencing
the content of these bills and other legal documents that concern the press.
Aleksei Samokhvalov
Information Agency “Russian Law”
Moscow
(fax +7-095-519-7943)