by Milos Zivkovic (Head legal counsel to ANEM )

 1.  Current situation. 

There is no doubt, that anybody involved in the course of the last ten years, and in particular during the last two or three years, in the issue of electronic media from the standpoint of acquiring a frequency and license, could draw a conclusion, that, to put it in the mildest way possible, the situation in this field is not satisfactory at all. To put it in stronger terms and said more frankly, it seams that this area was more than any other sector under direct devastating influence of the old regime, so that one could truly say that it was reigned entirely arbitrary, presenting a "codified chaos" in which even an illusion of existence of any legal regulative was entirely flimsy.

It is neither appropriate nor necessary to present here a detailed legal analysis of the existing regulations which concern the assignment of frequencies and TV channels to the electronic media and license granting to the broadcasting stations used by the public broadcasters. Such analysis exists, in the form of reports of the media associations on particular cases (reports of ANEM and NUNS on repression), as well as in form of serious discussions  on particular practical issues presented in the bulletin of the Association for Private Broadcasting Development SPEKTAR (by Mr. Slobodan Djoric, Secretary General of this Association), as well as in form of attempt for more systematic presentation of the legal issues in the book Media Law published by Belgrade Center for Human Rights. I think that here one should present only the most significant characteristics of the current situation in the way which shall offer the best overview.  First of all, the presentation shall be divided into two integral segments, one of which shall address the regulations and the other the practice of the competent authorities responsible for the implementation of the regulations.

 A.  Regulations 

a.  Problem of mixing the procedure of assignment of frequencies with the license granting procedure for transmitters and links.     The existing laws, due to lack of any system in its development up to now, suffer from two basic and systemic ailments. In fact, according to regulations up to 1991 it was not foreseen at all that private companies can establish electronic media. This was indeed reserved for so called social-political communities (Republic, City, Municipality), so that in consequence there were no regulations on the assignment of frequencies. After the events of March 9, 1991 and passing of the Law on the Radio and Television of the Republic of Serbia, thanks to introductory provisions of this Law (first 15 articles) which concern the broadcasting (the remaining provisions concern the Radio and Television of Serbia), for the first time the procedure was foreseen in the course of which the Government of Serbia shall assign the frequencies via public announcement to be advertised once a year. Among the Law implementation regulations, intended for the implementation of these provisions, the Decree on Fees for the Use of Frequencies was passed (since the Law prescribed introduction of fees) as well as the Decree on Appointment of the Board of the Government of Serbia for Assignment of Frequencies (the Board has according to the Law only consulting powers and the decision is to be passed by the Government of Serbia). These regulations are related to the assignment of frequencies and, in spite of the fact that the Law and the Law implementing regulations are in force even today, they were never applied in practice. The last public announcement for the assignment of frequencies on the basis of these regulations was advertised in 1993. The procedure following these two announcements was non-public and the results were published as "schedules of lucky winners", without the grounds clause and possibility for appeal. The fees were never paid.... On the other hand, the regulations on the issue of radio station licenses (the most important for the electronic media are the Law on the Communication System and the Regulation on Data and Documentation...), were and remained under competence of federal authorities, but due to political influences the issue of the licenses was not only the matter of technique, but represented indirectly one more way for restricting those radio and TV stations which are not controlled by the regime. Due to specific circumstances the procedure for the assignment of frequencies and license granting moved from the state authorities to Radio and Television of Serbia (RTS), which received easy the licenses and could take the frequencies without public announcement (since it was authorized to do so by the Law on Radio and Television from 1991), so that most stations  established in the period until 1998 were established on the basis of an agreement with RTS. The summit of confusion was caused in February 1998 when the Federal Ministry of Communications (hereinafter: the SMT), created from the former Federal Administration for Radio Communications, advertised the public announcement for the assignment of radio frequencies and TV channels for temporary use, wiping entirely in this way the difference between the assignment of frequencies and the issue of licenses for transmitters and links, which even until then was not clear defined.  At the moment we have a situation that most stations in Serbia (Montenegro has its own regulations for this field and does not recognize the competence of federal authorities) operate under agreements signed with, and licenses issued by the SMT, or operate as pirates with properly filed application which are "still being under consideration" by the SMT. It is interesting that these "pirates", according to the position taken by the SMT, must also pay the fee for the frequency they are using.

 b.  Competency issue.      Without getting involved into interpretation of relevant provisions of the Constitution of the Federal Republic of Yugoslavia, one may say that the federal authorities have  de facto  competence for Serbia, and the Montenegrin authorities for Montenegro, which is of course contrary to logic and unsustainable. According to the regulations the logic order of the things would consist in Republics assigning the frequencies and the Federation issuing the licenses. However, due to known circumstances in respect to relations within the Federation and within Serbia itself (Milosevic's moving to the federal level), de facto situation if different.  The issue of competence must be of course resolved in the context of new relations between Montenegro and Serbia, which goes beyond the sphere of electronic media. Significant remains only the fact, that the media situation involving radio and TV stations in Serbia, at least in the transition period, must be resolved at the federal level.

 c.  The issue of the regulation contents.     In addition to previously mentioned conceptual issues one must not forget, that the existing regulations, still going Public announcement of the SMT first of all, are in view of their contents utterly inconsistent and confusing.  We would like to refer for this purpose to the analysis of the announcement content contained in the above mentioned book "Media Law". For example, one of the most acute problems was the introduction of the frequency use fee by a Law implementing regulation contrary to the very Law on the basis of which this implementing regulation was passed, which is contrary to the Constitution (more on this in the paper "What is unconstitutional in the Telecommunication Part of the Media Law" published in the book "Crisis and Restoration of the Law", CUPS 1999). Thus, one has to keep in mind, that the existing regulations according to its contents can by no means represent a direction finder for the future democratic government. On the contrary, their fundamental reform and creation of a completely new consistent set of regulations is required in order to regulate this area according to prevailing democratic principles and international standards.

 B.  Practice

The analysis of the existing, without any doubt "defective" regulations, first of all those of the SMT,  occuring during the last two and half years, shows very clearly the way in which in the contemporary Serbia the frequency was obtained. ANEM, as an association of independent radio and TV stations, felt the most the political criteria for the assignment of the frequencies. The direct evidence of the influence of the politics in this area were the documents published in April this year by Studio B (ANEM has the copies), which represent the "recommendations" of the municipal and district Boards of the Socialist Party of Serbia (SPS) and Yugoslav Associated Left (JUL) as to which stations from their community should have the frequencies assigned "because they helped us in the election campaign 1997" and which should not (because they are foreign paid mercenaries). It is astonishing how the results of this party "interviews" and "recommendations" are consistent with the published results of the first round of the Public announcement. With several exceptions, e.g. Radio and Television Pancevo and B92, the frequencies were assigned only to stations supporting SPS and JUL.

In lieu of a conclusion, one may remark, that the person to head the new SMT shall have a complex task. On one hand each democratic government  must take in account something which one, in the broader sense, might call the rights acquired in the previous period and, on the other hand, it is clear., that the methodology of the frequency assignment and license issue was illegal and illegitimate to such an extent, that democratic development of this sector in future can hardly be imagined without rechecking all frequency assignments. For this reason I recommend, as it shall be seen, that the rechecking of the procedure should be performed by all means, however in such a way which shall make it impossible for any station, no matter to which extent it has supported the old regime, to complain of revenge. The objective of the rechecking should be arrival to a certain "equilibrium state" in which the favored stations and the discriminated ones shall be brought up to a point into equal position, so that the future development (or downfall) of stations shall be due only to their ability to participate in competition under equal terms and not a result of privileges or discrimination inherited from the Milosevic's regime.

 2. Desired Objectives and Features of Methods for Achievement of these Objectives.

 In this section the desired situation shall be discussed i.e. the situation to be achieved after the transition period, as well as basic characteristics of the way by which such situation should be brought around. In the first part this discussion is to some extent a matter of political and systemic determination, so that the presented matter should be understood as a personal position based on the rich experience from the Milosevic's period, comparative legal overview, existing theoretical concepts and international standards, as well as modern understanding of the role of electronic media in the contemporary democratic society.

Thus, the first question is what should be achieved by the reforms. We have seen that the current situation does not fulfil the needs, but what is the state which should be achieved by the changes? My experience gained from one and half year of work on the Model of the Public Information Law (which by circumstantial coincidence includes the matter involving the frequency assignment and license issue i.e. so called telecommunication section of the media law) warns that the road from the formulation of fundamental principles to concrete technical legal solutions is a long one, because it is relatively easy to arrive to consensus on principles, but the concrete legal designing of this principles does not go so easy.

Luckily, the issue of future more permanent regulation of this matter is not so urgent, and for passing the new systemic regulations there shall be enough time for the consulting of parties interested for those new solutions: radio and TV station owners, legal experts, media analysts etc. Here shall be in any case presented a personal attitude related to this matter, which results first of all from the experience with frequencies and licenses gained in the course of the last four years, and on the other hand also from all other accompanying the involvement in this matter. First, I think that the procedure of frequency assignment, as a primary one and more "political", must be more clearly separated from the license issue procedure as purely "technical". Thus, the licenses would have to be granted to any entity to which the frequency is assigned subject to fulfillment of prescribed engineering requirements for the operation of the transmitter or link, without any discretion right of the license issuing authority to evaluate the program orientation of the broadcaster or similar.  Second, I think that the primary procedure of frequency issue in Serbia should by all means be transferred to the republic level, which is in fact the current situation according to the regulations but not observed in the practice. As far as the license issue competence is concerned, since it is an engineering matter, it is irrelevant is it is done by the federal or republic authorities, so this should be left for the agreement between the Republics. It may be only added, that although it is more logical and in other European federations usually the task of the federal agencies, the trend of the development of situation in Yugoslavia makes it more probable, that  the Republics shall keep this issue under their jurisdiction. Finally,  in regard to the contents of the regulations, I think that new systemic regulations in this area, which should be applied after the mentioned "equilibrium state" is once achieved, should be to the greatest extent value independent. Taking a concrete example, I think that automatic adoption of the model existing in the Western countries, where the frequencies are assigned by a body specially constituted for that purpose by the professionals appointed for one part by the state and for the other by the independent sector, should not be applied immediately. The reason for this is the inherited division of the society, insufficient development of the democratic consciousness and culture, resulting in great potential for political influence on the frequency assignment body during the transition period, which would have to be avoided by all means. Thus, a system is needed which would enable avoiding the situation in which any body, council or frequency board would have discretion right to assign a frequency to some entities and not assign it to some other entity. This is hard to achieve, in view of the sparse frequency resources i.e. limited number of them, but this problem, due to development of some new technologies (MMDS), but older technologies as well (cable distribution, satellite), soon shall not be impossible to overcome. Such system should, without any help or obstacles placed by third parties (read State or somebody else having the power to decide on assignment or withholding of frequencies), in a market oriented way in the last instance determine which existing stations shall survive and with shall go down, as well as determine if possibly there is place for some new stations.  One should not be afraid that such approach shall favor the operation of the televisions of the TV Pink type, since one can influence by other instruments of the legal policy, first of all by tax (and different fees for the use of frequency) burdening the commercial programs and relief for the stations with news, education and similar programs. Such system could last for several years, depending on the rate of development of the civil society in Serbia, and than one should, by a law reform, introduce the traditional model of frequency and TV channels assignment commission, based on its own (by reasoning explained) discretion evaluation according to the criteria stipulated by the Law. I shall only remark here, that all countries, starting from the USA with its FCC to our neighbor Hungary, have a lot of trouble with such commissions, mostly due to corruption and bribery of members by large international media concerns fighting for the position in the market (well known dispute CME and RTL in Hungary, where CME complained of corruption and illegal application of criteria, since RTL won the tender). Also, the fee for the use of frequency should be introduced by the new regulations (which is almost generally adopted comparative legal trend), certainly not in the way done by Radoje Kontic in the time of Dojcilo Radojevic (illegal and without any relation to the realistic payment capabilities of the stations), but in a more differentiated and just way (no fee for stations established by public companies i.e. for public media, lower fees for stations with their own production of cultural, educational and news programs, higher fees for stations with larger share of amusement programs etc.). It has no sense to go into all details of involved problems in this place, because their regulation shall require time and discussion among many interested parties, so I shall remain at presented principal positions and examples.

The second issue involves the way in which such new state is to be achieved and which shall enable without a breach of justice and fairness all interested parties to apply for frequencies under same conditions. This issue may be reduced to elimination of injustices done in the time of Milosevic i.e. manner in which these injustices could be eliminated, and this issue is an urgent one. Since the third section of this review aims to suggest somewhat more concrete solution to these urgent matters, here shall be presented only the fundamental features of the manner in which this "equilibrium state" is to be achieved. Generally, in front of the new authorities there are two roads - an open, Milosevic type, discrimination of formerly favored media (Pink, Braca Karic /BK/, Palma, Kosava...) based on justifications of "revengeful type", or  an attempt to achieve similar goal by existing or new legitimate legal forms. The first road is an easier one - revoking and canceling of the assigned frequencies, dispossession of equipment, elimination of those who have reached their positions under Milosevic and thanks to him. This road is simpler and faster, and I think that it would not at the moment cause much revolt in the public, but I cannot recommend it, since it would represent the violation of the freedom of expression in the most traditional way, the way it was done by the former regime vis-a-vis ANEM, against which we have fought all those years. From the standpoint of methodology, the second way should be based on the following concept: one should pinpoint the favors given to the (private) pro-regime stations and those favors should be cancelled retroactively. What this actually means shall be seen in the section dealing with transition solutions, but I am strongly in favor of such manner, because only in this way we can avoid the argument of "counter-repression". Thus, it is necessary to establish the current status at SMT with signed contracts, payment of fees etc. and undertake actions aimed at dispossession of that which has been acquired by privileges, but in a constitutional way and in accord with international standards (without a breech of the freedom of expression). Should one arrive into "equilibrium" state in this manner, without repression and in a way of justice and lawfully, the chances for the more permanent development of this sector, which is of great importance for the establishment of an open democratic society, would be much better. This leads us to concrete proposals for the transition solutions.

 3.  Recommendations for the Transition Solution

 "A blessing in disguise" for the person competent for the "undoing of the knot", which the former regime has left in this sector, shall be the fact that a large number of stations, in particular large ones, provide wide coverage on the basis of agreements with the RTS, and that all issued licenses are temporary ones i.e. running out in June next year. In this way the time frame for the duration of the "transition period" is set up and the possible complaint regarding the "acquired rights" eliminated, since the rights, awarded by the Milosevic's regime to those close to it, were limited to a short time period.

The first step is naturally the registration of the current state at the SMT. For the successful and efficient performance of this job the collaboration of the existing personnel of that Ministry is required and the goal would be as follows: to establish which radio and TV stations were assigned the frequency and signed the contracts on their use; which stations have applied but were not assigned a frequency and why it was done so; which stations have and which have not paid the fees introduced by the Decree of the Federal Government in 1998; which stations were on the list of stations relieved from the payment of fees for the period of NATO intervention.

The first and principal question is the destiny of stations which are operating at the moment as well as the issue of the recent "occupation of frequencies" and new stations established after the October 1, 2000. The issue is a very significant and sensitive one, since one should try not to eliminate anybody irrelevant of the different legal and de facto status. In relation to stations which are conditionally said legal, the problem can be solved easily - they continue their operation according to the prescribed regime until the new regulations are passed  (see the fee issue further on). As far as the pirate stations are concerned, they shall continue to operate as well, but a difference should be made between those which have submitted the application which for political reasons have not been considered yet, and those entirely operating as pirates, from which already in the transition period the submission of studies and documentation required by the existing regulations should be required (in order that they become equal with the first "pirate" group). The operation of new stations (established after October 1, 2000) could be tolerated only if they have submitted, or if they submit in the appropriate period, their studies and if they are not producing disturbance to any existing station. In the contrary, the measure for their elimination from the air should be taken, no matter how unpopular it may be, since one has however to avoid the "Wild West" situation where anybody can take as much as he can grab in the transition period. In short, the situation in the frequency range should be "frozen" during the transition period, which must not last longer than the next June, by which time the new regulations should be ready (regulations in particular the position of de facto operating stations) and the systemic and legal regulating of this sector started (subject to previous arrival to the "equilibrium state"). The time period left  is short enough to be a danger capable to prevent the development plans of the existing stations and long enough to provide ample time for thorough and legal preparation of such development. During this period the de facto  state in the air would be registered, how many "radio space" is left in the air, if there is to much "crowd" somewhere so that some stations have to be eliminated for technical reasons, etc.

The establishment of the facts in relation to payment of fees is of particular significance, since this is exactly one of legal ways for the rectification of the injustices from the past period i.e. punishment of the privileged ones.

The new Federal Government should immediately, with effect from October 1, 2000, cancel the Decree on Fee Amounts, but with differentiated validity of this regulation for the period of the past two and half years. In fact, this would mean the following:

1.  Public Companies.   All public companies (RTS, Studio B, Radio and Television Pancevo...) would be retroactively relieved from payment of the fee. Thus, their possibly existing debts would be cancelled on this ground. As far as this what has been paid is concerned, in view of the fact that these are broadcasters financed from the budget, a simpler (and less justified) solution is possible, providing that what has been paid is not to be paid back, since it shall be returned indirectly through investments of the founder - Federation, Republic, City or Municipality via its budget. Or, one could adopt a more complex (but also more justified) solution, according to which the debt of the federal budget receiving the fee funds would be calculated to be possibly set off from the debts of the founder to the Federation budget (i.e. since the federal till is empty, one should avoid repayment of the cash funds; instead, the creditor should be relieved of present and future debts to the Federation for the amount of the federal debt to his benefit, something as so called tax credit in case when the taxpayer makes excessive payment of the tax due).

 2. Private (more precisely non-public) companies which were assigned the frequency and concluded the agreement.   These companies would have to be obliged to pay all fees until October 1, 2000, since the subject companies are in 99% of cases exactly those which have been privileged due to their closeness to the regime. I am convinced that the companies  founders of TV Pink, TV Palma and TV BK were not paying this fee, so that they shall receive a deserved financial impact by such decision. Thus, to this group would belong only B92 as independent station, since it is the only one which was assigned the frequency at the public tender (RTV Pancevo is a public company), and it shall pay the fee for the TV frequency only for the period since it has started transmission in June this year. The other stations, thanks to discrimination by the former regime,  would receive financially preferential treatment by this solution. These stations could be fee exempted only for the period during NATO intervention, all or none at all, or in case that the free use of frequency was disturbed (which happened often, as we know) for the period the temporary of permanent disturbances were in effect.

3.  Other companies operating without the license.   Retroactive fee annulment should be foreseen here as well, whereby the paid fee amounts should be considered to be a "credit" of a kind, i.e. claim vis-a-vis Federation, which would be set off from the fees which shall be required by the new regulations. Of course, this would be valid for the stations which have submitted the documentation and have not received an answer, while those which are "real pirates" shall have urgently to submit the studies, without any obligation for the repayment of the fee in any manner whatsoever.

 These concrete measures would have to create urgently the conditions for approaching the extensive job of systemic reorganization of this sector without excessive upheavals. In the end on has to note, that the telecommunication section of the media law is only a part of the media law and that much of it shall depend on the certain decisions regarding the public media, e.g. shall the future RTS Belgrade have one, two or three channels (the model of the law foresees two), shall RTS Novi Sad have one or two channels (the model foresees one), shall to each city, community or community association be assigned one TV and one radio channel or shall they be allowed to have two of them (which I do not recommend). shall be continued the illogical practice of fee payment for the benefit of the public media etc. These issues are not only professional and engineering ones, but also  political, and from the way of its resolving i.e. the political decision in regard of the public electronic media in Serbia shall depend how much space in the air shall remain for the others. One existing systemic proposal of the solution of these issues exists in the Model of the Law and it is explained in the book Media Law, but this proposal is not the only possible one. This issue requires soon initiation of the professional and political discussion in order that the decisions could be reached before June 2001.

 This would in short represent one of possible solutions for undoing the knot of the frequencies for media. Of course, only most urgent issues were treated here and there is a number of other issues which seem of less importance at the moment. The only thing which needs adding and which is connected with reaching the "equilibrium state", though it has nothing to do with the frequencies, is the need that the frequent visitor of ANEM members during the past period, the Financial Police, starts "visiting" the big private pro-regime media, if nothing else only to check if the turnover tax is paid on long lasting and frequently transmitted spots of regime political parties during the past election campaign. One must bear in mind however, that the turnover tax is due even when the spots are aired for free. The protection of the pro-regime media from the revenue authorities was in fact the basic privilege and the road to development of the pro-regime private media like Pink, Palma and BK, so that without at least a partial annulment of this privilege reaching the "equilibrium state" shall not be possible.

 In Belgrade, October 19, 2000