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Poland’s National Broadcasting Council has been debating the issue for months (TVN24 filed an official request to have its license extended in February of last year), and so far has not been able to make a final decision. It was lacking the necessary majority to renew the station’s broadcasting license for another 10 years. The council needs four out of five votes to pass a binding resolution.

The current Council was elected in the summer of 2016, and packed entirely by the ruling camp. The parliament’s lower house appointed Witold Kołodziejski and Elżbieta Więcławska-Sauk, the Senate appointed Teresa Bochwic, and President Andrzej Duda appointed Janusz Kawecki and Andrzej Sabatowski.

So far, Ms Bochwic, Mr Kawecki, and Mr Sabatowski have voted against extending the station’s license. Ms Sauk abstained and Mr Kołodziejski voted in favor.

On Tuesday, three members of the Council had already voted in favor of extending the license, while two voted against it.

On Wednesday, the Council decided to convene yet again. The session began with a considerable delay, but a few hours later, the voting finally took place. Four members voted in favor of extending the license, only one remained opposed.

PiS is turning to plan B

Yet, extending the broadcasting license for TVN24 was not the only reason why the Council decided to meet on Wednesday. There was something far more serious on the table- the ownership structure of the TVN Group. The ruling Law and Justice party is trying to force the station’s American owners to sell most of their shares in the company. This way, PiS is hoping to silence one of Poland’s main government-critical news channels.

The Council already announced that it would initiate a separate proceeding regarding TVN’s alleged violation of the media law. The law in question is Article 35 of the Polish Broadcasting Act, which prevents countries outside the European Economic Area from owning more than 49 percent of shares in Polish broadcasters. TVN, however, is entirely American-owned and controlled through a company registered in the Netherlands, which is in the EEA.

While the Council has never before questioned the broadcaster’s ownership structure, it now claims that TVN is violating Article 35.

What does the TVN Group have to say about it? - As we have repeatedly emphasized, also in official statements of the Management Board of TVN SA, the ownership structure of the company complies with the provisions of the Broadcasting Act. This was confirmed in independent expert reports prepared by prominent Polish law scholars. We’d like to point out 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 TVN 24 license TVN’s ownership structure never raised any doubts - comments Katarzyna Issat from TVN's press office.

Interestingly, since July, the Law and Justice party has been trying to change this very article to force the American owners to sell the majority of their shares. But the Senate vetoed the bill, and it is not clear whether PiS will be able to secure an absolute majority to override the veto. President Duda hinted that he would veto the bill as well.

And indeed, on Wednesday, before the Council held a vote on whether or not to extend the license for TVN 24, it unanimously adopted a resolution "on taking action to clarify the rules of distributing radio and television programs in Poland with regards to entities located outside the European Economic Area".

In the resolution, the Council states that "in its assessment, in light of current regulations, an entity with a registered seat in Poland in which the equity interest of the parent company outside the European Economic Area exceeds 49 percent, is not entitled to obtain a license to distribute radio or television programs in Poland. Furthermore, an entity based in Poland which is dependent on an entity outside the European Economic Area through the direct or indirect holding of more than 49 percent of the votes at a general meeting of shareholders is not entitled to obtain a broadcasting license, even if the entity based in Poland is also dependent on an entity based in a country within the European Economic Area".

The decision has one major caveat…

In short, according to the Council, TVN is breaking the law. And yet it did not revoke its license? Why?

The Council ruled that before it can revoke TVN’s license, it will first call on the broadcaster to "remove the violations in question". The head of the Council is to lead the initiative - he is to ask the broadcasters to "adjust their capital structures to the requirements set out in Article 35".

The Council also intends to ask the Prime Minister "to undertake legislative work aimed at streamlining the regulations in the aforementioned area with reference to the best practices existing e.g. in competition law". Moreover, the regulator also wants the Constitutional Tribunal to examine the constitutionality of Article 35 of the Broadcasting Act.

TVN 24 has already been granted a Dutch concession. The station applied for it in July in case the National Broadcasting Council failed to make a decision by the time its current license expired (September 26).

On Wednesday evening, TVN published an official statement regarding the Council’s decision: "TVN Discovery Group has always met all the requirements set out in the Broadcasting Act. The resolution of the National Broadcasting Council regarding the license for TVN24 clearly shows that there was no reason to delay it for 19 months. At the same time, the Council adopted a second resolution that aims to implement the provisions of the so-called "anti-TVN" bill, however without going through the legislative process and bypassing the veto announced by the President. This resolution, just like the "anti-TVN" bill, forces Discovery to restrict its operations in Poland and poses a direct threat to the rule of law and media freedom, causing concern among foreign investors in Poland".

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