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On Wednesday evening, a group of Law and Justice MPs submitted a draft proposal amending the Polish Broadcasting Act. Because the proposed legislation is a parliamentary bill, it was able to bypass the public consultations process. Its initiator is MP Marek Suski, a trusted man of Jarosław Kaczyński.
"The legislator wants to make sure that companies based in Poland cannot be controlled by entities from outside the European Economic Area" – reads the justification to the bill.
The bill’s stated objective is to "clarify regulations enabling the National Broadcasting Council (KRRiT) to effectively prevent entities from outside the European Union, including those posing a significant national security threat, from taking control over radio and television broadcasters".
A key provision of the new legislation is Article 35, which states that a broadcasting license in Poland may only be granted to a foreign entity whose registered office or permanent place of residence is located within the European Economic Area.
The article is crucial for prolonging the broadcasting license for Poland’s leading independent news channel TVN 24.
- This law is a declaration of war against the US because it will expropriate or at least coerce Americans into selling a large media company which TVN undoubtedly is- said Juliusz Braun, former head of the National Broadcasting Council, currently a member of the National Media Council, in an interview with Onet. In his opinion, the act is aimed directly at TVN.
TVN asked to have its broadcasting license renewed already a year ago
The broadcasting license for the TVN 24 news channel expires on September 26, 2021. The station had already applied for its renewal a year ago.
Now, Poland’s state broadcasting regulator KRRiT has begun to raise concerns about possible violations of the Polish law and asked the network’s owner (Discovery) about its planned merger with WarnerMedia.
What, according to the regulator, could constitute a possible violation?
In May, news broke that WarnerMedia, owned by the telecommunications giant AT&T, and Discovery, the owner of TVN, would merge to create a new media company.
Owning 71% of shares, the majority shareholder in this new company will be the current shareholders of AT&T. AT&T will also receive $43 billion in cash, bonds, and in the form of debt cuts from WarnerMedia. 29% of the company's combined stock will go to current Discovery shareholders. TVN 24 reported at the time that the new conglomerate has no plans of selling any of its assets, including TVN.
The merger between WarnerMedia and Discovery will go by the name Warner Bros. Discovery. It is these changes that are at stake now. The KRRiT examines whether TVN24's application for license renewal complies with Article 35, which states that "it is permitted to grant a license to a subsidiary, as defined under the Commercial Companies Code, of a foreign entity whose registered office or permanent place of residence is located within the European Economic Area".
It is this that the amendment proposed by Law and Justice MPs intends to address.
The European Economic Area includes all European Union member states as well as Norway, Iceland, and Liechtenstein.
The ruling party wants to amend this provision by adding a condition that - as stated in the explanatory memorandum – "a license for broadcasting radio and television programs may be granted to a foreign entity whose registered seat or permanent place of residence is located within the European Economic Area, provided that such a foreign entity is not dependent on a foreign person whose registered seat or permanent place of residence is in a state which is not a member state of the European Economic Area".
The amendment assumes that current licensees will have six months’ time to comply with the new regulations.
TVN issues a statement
Behind the group of MPs who submitted the draft proposal is Marek Suski, the current head of the Polish Radio Programme Council. As Joachim Brudziński, Law and Justice deputy chair and MEP, told TVN 24 on Thursday morning, "Marek Suski would not have submitted such a bill without prior consultations or talks".
- Just as it is an inalienable right of journalists to keep an eye on the authorities, to be critical of the authorities, please don’t try to deprive politicians or citizens of their right to keep a critical eye on the involvement of TV stations from both sides of the political aisle in the public debate taking place in our country"- Brudziński said.
But the new bill would not only target TVN 24. Parallel proceedings also concern a license for the terrestrial TV channel TVN Siedem. Its license is valid until February 25, 2022.
- Satellite channels such as TVN 24 can be broadcast under a license from another country. But terrestrial ones, namely TVN's main channel, cannot. At the same time, it makes no financial sense for the company to maintain satellite channels without terrestrial ones- Mr. Braun said.
On Tuesday, after a meeting of the parliamentary committee for culture and media, where the issue of the TVN24 license was discussed, the board of TVN S.A. issued a statement. It reads: "(...) The ownership structure of the Company is consistent with the provisions of the Broadcasting Act. This is confirmed by independent expert reports prepared by prominent Polish law professors. We’d like to emphasize that in 2015 the National Broadcasting Council approved the entry of American capital into our Company and until we applied for the renewal of the TVN24 license the ownership structure of TVN did not seem to raise any doubts".
Mr Suski has questions about TVN
At Tuesday's committee meeting, Mr Suski seemed especially interested in the case of TVN24.
- Is the National Broadcasting Council supposed to inform everyone about all the regulations that are in force in Poland? Was KRRiT ever informed about such a transaction before it took place? Was the Council consulted before the transaction was made? How much of the Polish broadcasting sector is controlled by TVN? Are there any regulations as to what percentage of the media market in Poland can be controlled by foreign entities? What share of the American television market does Poland have? Can we speak of any balance here? Do we have any rights to that market? – Mr Suski asked the head of the National Broadcasting Council Witold Kołodziejski, a local Law and Justice councilor.
Kołodziejski replied: - Maybe the way Chairman Suski made his statement sounds somewhat amusing, but his conclusions are reasonable. Countries usually protect their markets. So does Poland.
He announced that he’d like the TVN case to lead to the development of clear rules of conduct, which would provide regulators and broadcasters with more clarity.
Current members of the National Broadcasting Council were elected in the summer of 2016. Witold Kołodziejski and Elżbieta Więcławska-Sauk were appointed by the Sejm, the Senate appointed Teresa Bochwic, and President Andrzej Duda appointed Janusz Kawecki and Andrzej Sabatowski. It means that the five-member council is entirely staffed by the ruling camp.
Kaczyński: our goal is to repolonize the media
- Media in Poland should be Polish - Jarosław Kaczyński announced last summer, shortly after the presidential election. - We can't forbid them to take part in what seems to me are externally inspired campaigns to destroy some and ignore others, to present a completely false image of Poland and the world. We can, however, lead to a situation when there will be more media that depict reality more truthfully than right now. We will try to go in this direction.
When Andrzej Duda won the presidential election by only a small margin, Kaczyński blamed critical media.
At that time, the leader of Law and Justice also said that one should not think "that we are counting on TVN becoming a pro-government television at some point or hope that it will simply cease to exist". - No. We know that it will continue to function, that it will be criticizing us, but maybe we will manage to bring about some kind of change - not by force, not by legal restrictions, but by certain rules that everyone accepts.
Already back then, Kaczyński announced that he would "try to do everything to normalize the situation in this respect".
How will the United States government respond?
In recent years, the US government has publicly defended media freedom in Poland, even though Donald Trump, a declared friend of the Law and Justice party, was in charge.
Nothing is clear yet about how the US will react to the ruling camp’s attack on TVN. In the past, US Ambassador Georgette Mosbacher intervened in situations where the PiS-dominated National Broadcasting Council tried to impose penalties on TVN. She called the announced draft proposal on media de-concentration "censorship". In a statement to the conservative daily "Rzeczpospolita", she said that she stands by the most important American values, including freedom of speech.
At the moment, there is no new U.S. ambassador in Warsaw yet. We know that the US State Department has been monitoring the state of media freedom in Poland for some time, but it is unclear whether and how it will react.
On Thursday, our sources inside the American diplomatic circles have told us that "the US government is aware that Polish authorities are using US declarations as propaganda, for domestic purposes". Thus, we should expect a different kind of reaction than just an open statement.
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