The Ministry of Culture has published the positions expressed during the consultation process on the draft media law. TVN and TV Puls criticize Telewizja Polska’s “almost unlimited” activity in the advertising market. They point out that the public broadcaster should broadcast significantly fewer spots. TVN also highlights a controversial provision that allows for the revocation of a broadcasting license if the broadcaster is deemed to have a dominant position.
TVN Warner Bros. Discovery and Telewizja Puls are the latest entities to participate in the Ministry of Culture and National Heritage’s consultations on the draft bill amending the Broadcasting Act and certain other acts. The broadcasters presented their positions on issues such as the financing of public media and the future shape of the National Broadcasting Council.
“Uneven competitive conditions”
TVN points out that the bill does not restrict public media from broadcasting. TVP cannot interrupt programs with commercials, but it does pose a serious challenge to commercial broadcasters in the battle for advertisers. In some countries, public media broadcast no advertising at all or very rarely do.
Public media will continue to have virtually unlimited access to advertising and other commercial media. This means they will compete directly with commercial media, which rely primarily on advertising revenues for their operations.
TV Puls CEO Dariusz Dąbski presented similar arguments. “Public media are in no way limited in their advertising activities, competing with commercial broadcasters whose primary, often sole, source of revenue is revenue from this activity, which creates unequal conditions for competition in the media market ,” he wrote.
The station advocates for strong restrictions. “According to the company, and confirmed by many media market experts, public media can be financed by advertising, but only to a limited extent , and only where it cannot be avoided, such as during sports broadcasts, major international events, or due to sponsorship activities,” argues the head of TV Puls.
He noted that TVP has historically undercut advertising rates, which negatively impacted the financial health of commercial broadcasters. Dąbski believes TVP should not be involved in the battle for advertisers. He believes it currently focuses on programs that attract mass audiences, not missionary programs.
Budget subsidies for TVP contrary to EMFA?
TVN Warner Bros. Discovery representatives also commented on the idea of financing public media from the state budget. “Another group adversely affected by this solution are public media consumers, who will be financing their operations through their taxes, and their reception of public media, including online, will continue to be ‘disrupted’ by commercial messages,” the broadcaster noted.
The author of the position, Piotr Wasilewski, group VP – head of legal & corporate affairs Management Poland, does not rule out that transferring PLN 25 billion from the budget to public media over 10 years may be contrary to the principles of the European Media Freedom Act (EMFA).
— It is doubtful whether guaranteeing annual financing of public media at the level of PLN 2.5 billion meets the requirements of “transparent and objective criteria” referred to in Article 5, paragraph 3 of the EMFA due to its lack of connection with the quality of public media services — argued Wasilewski.
The European Broadcasting Union (EBU) presented a completely different position . According to the organization, this solution ignores inflation, rising production costs, and the need for digital transformation. Therefore, the EBU wants public media to be able to receive more funding if necessary. Meanwhile, during the consultations, the Ministry of Finance warned against increasing budget spending, which would support TVP, among others.
TV Puls wants to create a new, transparent system for financing public media. He positively assesses the elimination of the radio and television license fee and the financing of TVP, Polish Radio, and regional stations from the state budget. Dąbski argued that the role of public media should be defined in terms of mission.
Taking away a license for a dominant position?
TVN raised serious concerns about the provision in the draft media law that allows for the revocation of broadcasting licenses for a dominant position. The broadcaster pointed out that the provision could be abused by the biased composition of the National Broadcasting Council (KRRiT). Under the Competition and Consumer Protection Act, entities can be fined up to 10% of their annual turnover for abusing a dominant position.
“Extending the competences of the National Broadcasting Council to investigate abuses of a dominant position by a broadcaster is unfounded, as there are currently two bodies responsible for this (the Office of Competition and Consumer Protection, the European Commission), whose decisions may be appealed to the relevant courts, which review the decisions issued,” the company’s position reads.
Article 50 of the Charter of Fundamental Rights of the European Union prohibits double jeopardy for the same act. The broadcaster noted that if the Chairman of the National Broadcasting Council were to issue a negative decision, they could face significant financial losses. Proceedings before administrative courts typically last several years.
TVN and TV Puls welcomed the expansion of the KRRiT’s membership, its efforts to depoliticize it, and the open nature of the regulator’s meetings. Commercial stations support the mechanism whereby the chairman’s decision is preceded by the consent of the Council members. Broadcasters argue that replacing satellite and cable licenses with permits is a positive step. However, they oppose additional obligations regarding FAST channels.
TVN criticized the proposal to take into account the National Broadcasting Council’s (KRRiT) opinion on concentration. The President of the Office of Competition and Consumer Protection (UOKiK) would have to take this into account. According to the station, this regulation is broader than the EMFA provides. The broadcaster also criticized the KRRiT’s new obligation to assess media pluralism every two years.