Post-Soviet Media Law & Policy Newsletter

Issue 22     Benjamin N. Cardozo School of Law     October 19, 1995

Proposed Amendments to  the Ukrainian Law 
“On Television and Radio Broadcasting”

   What follows are excerpts from amendments to the Ukrainian Law on Radio and Television as passed by the Supreme Council of Ukraine.  These amendments may be sent back to the Supreme Council by the President for further refinements.  Because of transmission and translation problems, there are unavoidable problems of formatting and precision.

Article 1.     Definitions of Basic Terms.

    For purposes of this Law, the following terms shall be used: Article 4.     Authority of State Organs over Television and Radio Broadcasting in Ukraine.

    The Supreme Council of Ukraine and the President of Ukraine shall establish government policy regulating television and radio broadcasting, and provide a legislative basis for its implementation, and guaranty social and legal protection in this field.
    The Cabinet of Ministers of Ukraine shall ensure the implementation of a government policy regulating television and radio broadcasting, and coordinate the activity of the ministries and other central bodies of governmental executive powers governing television and radio broadcasting.
    The State Committee on Television and Radio Broadcasting shall ensure that the government information policy, established by the Supreme Council, the President of Ukraine is implemented by the National Television and Radio Broadcasting Council of Ukraine.
    The authority of the Supreme Council of the Republic of Crimea and local Councils of peoples deputies over the development of local television and radio broadcasting shall be governed by applicable legislation of Ukraine. 

Article 5.     National Television and Radio Broadcasting Council.

    For purposes of the implementation and observance of legislation concerning television and radio broadcasting and other normative acts, a National Television and Radio Broadcasting Council (hereinafter the “National Council”) shall be created.
    The National Council shall be a controlling body,  independent from other governmental administrative bodies, functioning in accordance with the present Law and applicable legislation of Ukraine and shall be responsible for the development of television and radio broadcasting, its quality, and the professional, artistic, and ethical level of tele-radio organizations broadcasts and programs.
    The composition of the National Council shall be adopted by the Supreme Council of Ukraine and consist of 8 persons for the term of 4 years: four candidates shall be nominated by the Chair of the Supreme Council of Ukraine and four candidates shall be nominated by the President of Ukraine.
    Members of the National Council on a standing basis, shall be state officials and may not hold any positions in other government or non-government institutions, organizations, or enterprises, nor may they receive separate compensation for the work done, excluding honoraria for creative activity or lectures, or engage in entrepreneurial activity in the field of television or radio broadcasting, and shall suspend membership any political parties.
    Members of the National Council and its staff employees may not receive any compensation, including salaries, from tele-radio organizations, enterprises, entities, and organizations.
    Members of the National Council and its staff employees may not be founders of tele-radio organizations or participate in commercial activities.
    A Member of the National Council shall be suspended in case of:     If a member of the National Council is suspended, the election of a new candidate shall be held according to the procedure stipulated by this Article.
    Members of the National Council shall elect from among themselves the Chair of the National Council, the first deputy, and Deputy Chair. The Chair of the National Council and the first deputy shall have been nominated by different branches of power. The Chair of the National Council and his deputies shall be accountable to the National Council.
    The Chair and his deputies shall work in the National Council on a professional basis. The remaining members of the National Council shall serve without monetary compensation. 
    The Chair of the National Council shall: organize activity of the National Council, supervise preparation of issues for its consideration; call meetings of the National Council on his own initiative or on the proposal of not less than two members of the National Council, submit the issues for consideration of the National Council, and preside at the meetings; organize the work of the National Council staff; issue orders and regulations, sign licenses granting the right to use broadcasting channels, and also notify on the rejection of issuing the license or annulment of the license in accordance with the decision of the Council . . . .
    The fundamental functions of the National Council shall be: 
    — Coordination of concepts aimed at the development of the Ukrainian broadcasting information space and participation in its implementation;
    — The granting of licenses to tele-radio organizations on the competitive basis for the right to use broadcasting channels and broadcasting air time;
    — Control over observance of legislation in the sphere of television and radio broadcasting and terms, as stipulated in the license;
    — Ensuring validity of the rights of television viewers and radio listeners;
    — Supervision of rational usage of radio frequencies intended for tele-radio broadcasting;
    — Participation in the making and implementation of international treaties of Ukraine on the issues of television and radio broadcasting.
    The duties of the National Council shall be:
    — the establishment and administration of the State Register of Tele-Radio Organizations of Ukraine, including the creation of a uniform data bank of these organizations;
    — supervision of the observance by tele-radio organizations of the terms of applicable legislation, especially regarding foreign investments and the procedure of broadcasting during elections and referenda campaigns; . . .
    — the issuance of regulations for the procedure of obtaining a license, using broadcast channels, and competition for the granting of licenses. . . .
    — coordinating the amount of the fee for issuance of a license, and also establishing of maximum tariffs for leasing of technical means of broadcasting, minimum price levels for advertisement disseminated via national broadcast channels, and correlating them with the respective standing Commission of the Supreme Council of Ukraine;
    — analysis of the practical application of legislation concerning the issues within its competence, and elaboration of proposals aimed at its improvement;
    — organization of seminars aimed at the improvement of the activity of tele-radio organizations, assistance in training and re-training of broadcasting professionals for television and radio broadcasting, 
    — establishment of international links, and study of the experience of the respective foreign organizations; formulation of rules for documentation, creation and storage of temporary and permanent archives of television and radio programs, creation and presentation of national archives and museum of tele-radio broadcasting; 
    — rendering of the consulting assistance in the field of tele-radio broadcasting;
    — submission of annual reports about its activity to the Supreme Council of Ukraine and to the President of Ukraine which reports shall be disseminated in the mass media).
    The National Council shall have the right to: 
    — consider a license invalid if the license holding tele-radio organization did not begin operation within two months after the grant of the license; 
    — obtain from all tele-radio organizations documents, lists, and explanations concerning their activity in accordance with applicable legislation;
    — conduct, within the limits of its competency, inspections into the operations of tele-radio organizations regarding the conditions and procedures for the use of broadcast channels;
    — coordinate with the Main Administration on the issues of radio frequencies of the Cabinet of Ministers the distribution of radio frequencies for tele-radio broadcasting, the creation and use of radio frequency means of broadcasting, and also to elaborate regulations concerning the use of broadcast channels and terms of any competition for the obtaining of a license (to be coordinated with the respective bodies of the Supreme Council of Ukraine and disseminated in the mass media); 
    — impose punishment in case of violation of applicable legislation of Ukraine and the conditions stipulated in the license;
    — conduct auditing of tele-radio organizations.
    In cases of violation by a tele-radio organization of applicable legislation of Ukraine and the conditions stipulated in the license, the National Council may:
    — issue a warning;
    — impose monetary fines;
    — temporarily (up to two months) suspend operation of the license;
    — revoke the license if:
         — a tele-radio organization has violated requirements of Article 2 of this Law;
         — a tele-radio organization despite the warning and temporary suspension of its operation, continues to violating applicable legislation and the conditions stipulated in the license.
    The National Council shall bear no responsibility for the damages to the license-holder that occur because of the lawful annulment of the license.  There shall be judicial review of decisions of the National Council may be settled in the court. In case of an unlawful act on behalf of the National Council, it shall be obliged to compensate for the damages.

Article 7.     Antimonopoly Restrictions.

    A tele-radio organization, as well as its subsidiaries, do not have the right to broadcast on more than two television channels and three radio channels on the territory of the entire country, province, city or other region designated in its license, except for cable (wire) networks and broadcasting to foreign countries.
    A juridical or natural person does not have the right to be a founder or a co-founder of tele-radio organizations which broadcast on more than two television channels and three radio channels on the territory of the entire country,  province, city or other region.
    Tele-radio organizations that broadcast on the national channel may not obtain the right to operate simultaneously on more than half of broadcast channels on the territory of the entire country, province, city or other area. 
    Communication organizations and enterprises which operate broadcasting networks may not be founders or co-owners of the tele-radio organizations. 

Article 11.     Structure of National Television and Radio Broadcasting of Ukraine. 

    The structure of national television and radio broadcasting of Ukraine shall consist of state, non-state, and public tele-radio organizations founded by juridical or natural persons in accordance with applicable legislation of Ukraine. 

Article 12.     State Tele-Radio Broadcasting Organizations of Ukraine. 

    The basis of national television and radio broadcasting of Ukraine shall be state tele-radio organizations funded from the budget and transmitting television and radio programming to the entire territory or a particular region of Ukraine and to foreign audiences. In their activity, state radio organizations shall be governed by the Constitution and laws of Ukraine, and carry out fundamental tasks stipulated in this Law.
    The State Committee on Television and Radio Broadcasting of Ukraine is granted priority rights (within the limits stipulated in Article 7 of this Law) to use national broadcast channels for which technical facilities are created at the account of the state budget or state enterprises.
 State tele-radio organizations are granted priority rights, based on the rights provided by the license, to the use of state television and radio networks.
 The annual revenues of state tele-radio organizations from advertising, sponsors, and other types of activity, outlined in applicable legislation of Ukraine, shall be used for the development of television and radio networks, improvement of working conditions for their employees and shall not exceed 50 percent of their budget.
 The basic tasks of state tele-radio organizations shall be:
 a) To provide information to television viewers and radio listeners about social-political and other events in Ukraine and abroad, disseminate official statements, and explain decisions of the bodies of legislative, executive, and judicial power;
 b) To produce and disseminate economic, cultural-educational, artistic, educational, entertainment, and sports programming, as well as programs for children and adolescents;
 c) To enhance Ukraine’s international relations, and the growth of its prestige in the world.
 CHAPTER 2 Founding of Tele-Radio Organizations and Licensing of the Broadcast Channels.   Article 13. Right to Establish Tele-Radio Organizations
 The right to establish tele-radio organizations in
Ukraine belongs to the citizens of Ukraine who are not limited in legal capacity, the Supreme Council of Ukraine, the President of Ukraine and other juridical persons of Ukraine.
 Decisions to establish and structure the National Television Company and the National Radio Company of Ukraine shall be rendered jointly by the Supreme Council of Ukraine and the President of Ukraine. Financing of the National Television Company and the National Radio Company shall be fixed as a separate item in the State Budget of Ukraine.
 One of the national television and radio broadcasting channels shall be used for public broadcasting.
 The Supreme Council of Ukraine shall render the decision to found tele-radio organizations of public broadcasting. Status and activity of tele-radio organizations of public broadcasting shall be stipulated by a separate Law.
 Establishment of tele-radio organizations by foreign juridical or natural persons and persons without citizenship is prohibited in Ukraine. Establishment and operation of tele-radio organizations with foreign investments exceeding 30 percent of their capital stock is prohibited.
 Foreign investment of tele-radio organizations in Ukraine shall be under the oversight of, and with the consent of the National Council.
 Broadcasting of foreign tele-radio organizations using the broadcast channels of Ukraine shall be implemented on the basis of international or interstate agreements.
 Registration of tele-radio organizations shall take place in accordance with the procedure established by applicable legislation of Ukraine. Each tele-radio organization shall be listed in the State Register of tele-radio organizations of Ukraine which shall be maintained by the National Council.
 Article 14. Licensing of Broadcast Channels.
 In order to obtain a license for the right to use broadcast channels, a tele-radio organization, its founder, or an authorized agency must submit an application to the National Council
 The application must contain the following information:   a. About the founder (for a juridical person—the name, legal address, the bank account number; for a natural person—last name, first name, patronymic year of birth, citizenship,  and address);
 b. The name of the tele-radio organization, its bank account, and other identifying information (logotype, call sign, emblem, etc.);
 c. The location of the organization;
 d. The general programming concept of the tele-radio organizations in accordance with the requirements of this law;
 e. The language (or languages) in which the broadcasts and programs will be aired;
 f. The intended geographical area of dissemination of programs or broadcasts;
 g. The expected audience;
 h. The periodicity, time, and volume of broadcasting (including the production of proprietary broadcasts);
 i. The form of broadcasting (television, video, audio, tele-text, etc.);
 j. The means of programming dissemination (over-the-air, cable, wire, satellite, and others);
 k. The location, frequency, and capacity of transmitter...
 The application for grant of a license to a tele-radio organization for the right to use broadcasting channels will be reviewed and a decision rendered no more than one month from the day of its submission to the National Council along with the required notification of the applicant of the decision.  A license for the right to use a broadcasting channel shall be issued within ten days after rendering of a decision by the National Council, under condition of payment of a fee and shall be the sole legal basis for the right to use a broadcasting channel.
 A license shall contain the information set forth in the application for its issuance, as well as the: provided frequency channels,geographic zone of reliable reception, portion of programming of proprietary production and their thematic tendency, average daily volume of broadcasting, obligations taken by tele-radio organizations in the course of competitive selection, term of license validity, date when the license becomes effective, and date of commencement of broadcasting activity.
 In the course of conducting a competitive selection between applicants for receipt of a license, the National Council shall consider the: interests of viewers and listeners; the necessity to protect general national interests and the dissemination of cultural values;the necessity of fuller coverage of the positions of various social groups in television and radio programming; conformity of proposals set forth in the application for receipt of a license and to the conditions of the competition; conformity of tele-radio organizations technical capabilities and creative potential to the proposals in the application and to the duty of tele-radio organizations to provide social broadcasting; and previous experience in operating of a broadcast channel.
 Tele-radio organizations which are not registered according to the established procedure shall not have a right to claim receipt of a license, nor shall tele-radio organizations founded by political parties, trade unions, religious organizations, or by entities they have founded (or appeared as co-founders).
 In those cases when multiple applicants have equal grounds for obtaining a license, the primary right to obtain it shall be enjoyed by the applicant holding that license in the previous term, if in the course of operations it did not violate the conditions of the license and the requirements of applicable legislation.
Article 24. Cable (Wired) Tele-Radio Broadcasting.
 Networks of cable (wired) television and radio broadcasting shall be established by permission of local bodies of the state executive power.
 The procedural rules for the operation of tele-radio organizations, using networks of cable (wired) tele-radio broadcasting shall be stipulated by Articles 13-18 of this Law.
 Cable television organizations must provide to its subscribers transmitting of the programs of state and public broadcasting via cable channels.
Article 26. The Right of Access to Information.
 Tele-radio organizations and their personnel shall have the right to obtain information necessary for the fulfillment of their statutory activity from state bodies, enterprises, institutions (of any form of proprietorship) in accordance with the procedures stipulated by the present legislation of Ukraine.
 Official persons who provide information shall bear responsibility for its authenticity.
Article 30. Advertising.
 Advertising inside programs shall be explicitly distinguished and separated from other elements of these programs.
 Advertising air time shall not exceed 15 percent per each hour of broadcasting for tele-radio organizations of any form of proprietorship. This regulation shall not apply to special advertising broadcast channels.
 Interruption of entertainment and sports programs of more than 45 minutes in length shall be done for advertising purposes only once for every full 45-minute-long segment of time. Programs of less than 45 minutes in length, cinema, films and TV movies shall not be interrupted by advertising, unless stipulated otherwise in the contract between the tele-radio organization and the copyright holder.
 Beyond the time limit allocated for advertising, announcers, TV presenters, and other participants in tele-radio broadcasts may not purposefully display goods or products, or describe their consumer values, either directly or indirectly (by means of clothing, outward appearances, pictures, etc.) Employees of tele-radio organizations shall not advertise under the guise of information by pointing out detailed information about a producer of products or services, such as its address, telephone number, bank account or commercial characteristics of the goods or services.
 A tele-radio organization shall bear responsibility for including in programs or broadcasts advertising of poor
artistic or technical quality. The advertiser shall bear the responsibility for authenticity of advertising.
 Changes in tariffs on advertising, disseminated on national and public channels shall be determined by the joint decision of the National Council and a specially authorized central body of the executive power of Ukraine.
Article 32. Participation of Sponsors in the Creation of Tele-Radio Broadcasts.
 Broadcasts may be made with the participation of juridical or natural persons, who act as sponsors, with the exception of those whose primary business is the production or the sale of products or services, for which advertising is prohibited under Article 31 of this Law.
 A broadcast made with the participation of sponsors shall be explicitly and fully identified as such in announcer’s text or titles at its beginning unless the agreement between the tele-radio organization and the sponsor stipulates otherwise. Sponsor may promulgate in the program his name or the name of the firm without providing any other identifying information (address, telephone number, bank account, etc.)
 News bulletins shall not be sponsored. Interference by sponsors in the professional activity of tele-radio organizations and their employees is prohibited.
 Adapted from a translation from Ukrainian by Dina Nikitina and Andrei Richter.