07.05.2008
The Regulation on managing the Broadcasters Supporting Fund
 

The Regulation on managing the Broadcasters Supporting Fund

Case Study

Context:

On December 4, 2007, the BroadcastingCoordinating Council (BCC), through Decision125, approved of the Regulation on managing the Broadcasters Supporting Fund (Fund).Setting up the Fund is provided fro by art. 47 para. (3) of the Broadcasting Code no. 260-XVIof 27.07.2006, published in Monitorul Oficial no. 131 of 18.08.2006.

The Regulation contains 9 chapters with 22articles, and describes the way to accumulate the sources in the Fund, includingby their forced disbursement, they way in which they are managed, checked up, theway in which they are indicated in accountancy etc.

We shallspecify that the civil society, during public debates on the draft BroadcastingCode, in the summer of 2006, proposed to include the provision to set up a Fundsupporting the broadcasters, to be filled, among other sources, fromdisbursements of 1 % annually from the profit of each broadcaster. Suchpractices are in many countries, including in those where the broadcasters workin conditions incomparably better as a business environment than in Moldova. However,the version voted by the Parliament instead of “profit” provides for “…1% of the annual turnover” (see: Codul audiovizualului, art. 47, para.(2) let. c), published in M.O. no. 131-133, 18 August 2006). The term“turnover” is much wider than the notion “profit”, which has a clear andunivocal definition. Anyway, the Regulation on managing the BroadcastersSupporting Fund, p. 20 of Chapter VII Methodology of calculatingthe regulation payment, seemingly deciphers what is a “turnover” – “the effective volumeof the income gained from activity in the field of broadcasting for thecalculation period”.

In January 2007, the BCC developed a draftRegulation concerning the Fund and put it up for debates, publishing it on itsweb-site. The APEL Association of Electronic Press expressed its vision then, indicatingon several unacceptable provisions, in its viewpoint, and suggested ways to betterthe draft. After a year, practically, not re-considering the draft, asbroadcasters showed no interest, the BCC partially revised the text andapproved it through a Decision.

Reasons:

Chapter IIIof the Regulation titled “Managing the Fund” stipulates:

„9.Allocating the sources accumulated in the Fund is done through the BCC decision.

10. The mains accumulated in the Fund cannot beused to remunerate the Council’s members and employees.

11.The Fund’s sources can be spent to:

finance programs of social,cultural, educational interest etc. by broadcasters;

a) organize seminars, trainingcourses etc. pursuing to train, to promote the principles of audiovisual communication;

b) organize visits, seminars, news conferences related to the broadcasting sector;

c) organize contests of localprogram services amongst broadcasters, awarding prizes;

d) endowing the BCC with equipment in order to exert its legal duties.

12.Allocating money for p. 11 (a) enjoys priority and is done in accordance with aseparate regulation approved of by the BCC.

13. Thesums unused during the management year are included into the budget for thefollowing year” (italics by APEL).

In our opinion, it would be more reasonable, ifthe management of the money, including the disbursement of sources into theFund was the prerogative of a representative public Council, which would workon the basis of a special Statute, on principles of maximum transparency andaccording to some clear and measurable criteria of selecting the broadcastersto be granted the support. The BCC couldask for periodical reports from the Fund managers to debate in public sittings.Managing the Fund exclusively by the BCC, without setting up an autonomousadministration Council, requires supplementary efforts on behalf of theregulating authority, what diminishes its involvement in its specificpriorities it legally rests with.

As to art. 11 a), it’s a good and necessaryprovision, taking into account the deficit of social programs. But, if theRegulation provides for the quarterly disbursing of sources, starting from 2008,it was expected that “the separate regulation”, according to which one would allocate moneyfor the needs envisaged in p. 11 (a), should have been approved of by the BCCin April, the latest, provided the possibility that some broadcasters wouldlike to start producing such programs. The separate regulation, which shallalso provide for the way to allocate the money to produce programs of social, cultural,educational etc. interest, is not approved even today.

The provision to spend the Fund’s means ontrips and news conferences is equivocal on reason that it does not clearlypoint to the subjects (beneficiaries) of those actions and room is left forabuses. Given the fact that actually the broadcasters (in the Moldovan practicetill now) do not hold news conferences, it is to suppose that the provisionconcerned envisages the BCC. The same, it is to suppose that the BCC, throughits own decision, will rather allocate money for trips to its members and employees,than to broadcasters (if the latter ones dared to ask for). Naturally, suchexpenditures, as well as the sources for the technical-material endowment ofthe BCC, should be provided for in the BCC’s annual budget under the form ofstate subventions. It is noticed that the Regulation’s authors conductedthemselves by the provision of art. 47, para. (3) which establishes a singleclear restriction: “The Broadcasters Supporting Fund cannot be used toremunerate the members and employees of the Council”. On the other hand, theFund is set up to support the broadcasters. The legitimate ques6tions arises: isthe technical-material endowment of the BCC supporting broadcasters? We ratherfind a double taxation of broadcasters, since the state subventions, as part ofthe BCC’s budget, come also from the taxes paid by the broadcasters. As aconsequence, a legal stipulation allowing for helping the broadcasters, througharbitrary interpretation, turns into economic constraint of those. While theprovision of point 13, according to which thesums unused during the management year are included into the budget for thefollowing year definitely ruins the idea of the Broadcasters SupportingFund.

Conclusion:

TheRegulation of managing the Fund, developed and approved of by the BCC through Decision.125 of 4 December 2007, contains ambiguous provisions and cannot serve the goalfor which the Fund was set up.

Recommendation:

The BCCshould revise the text of the Regulation, and should meantime develop themechanism conferring the Fund themission it was set up for.

 
 
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