The legislative machinery will not rest. By the time the latest issue of the weekly Narancs with my pertinent story in it went to print, zealous Fidesz Party representatives had been busy tying up the loose ends by augmenting the amendment of the Media Act that would implement the resolution of the Constitutional Court. Since these loose ends had nothing whatsoever to do with the original amendment, these motions flagrantly contravene even the Standing Orders, no matter how tailor-made those Orders may be. On the other hand, this might be just the ticket for them to finally pull the plug on the protracted misery of Klubradio.
On Monday afternoon Csaba Szabó, mayor of the village of Hollókő, decided not to watch the agony of Klubradio with his hands behind his back any longer. As of today, the station has won two lawsuits against the Media Council: one — for the time being, in the first instance only — over the 92.9 MHz frequency, the other — with a final and enforceable judgment — over the 95.3 MHz frequency. Having been advertised for bids by the ORTT, the Media Council’s predecessor, the 92.9 MHz band had been awarded to Klubradio for purposes of “public-interest” (in the language of the new law, “community”) programming. This license entitles Klubradio to broadcast public affairs content corresponding to its ongoing program structure, without having to pay a service fee. Since then, the ORTT has been swept away by the closet revolution, and the Media Council superseding it has refused to sign the station’s contract, citing rather unstable arguments. The court of the first instance declared the obvious: This won’t do. The Media Council does not like to lose, and in any case it felt the judgment to be less than optimally clear, so it went on to appeal. The final verdict is expected within weeks. The tender announced for the frequency Klubradio is still using was awarded by the Media Council to Autoradio, a station with excellent references, but because the winning bidder had forgotten to sign every single page of the bid — and the Media Council had failed to notice this lapse — the court annulled the Media Council’s decision and ordered it to declare new results. As the station that finished second, by all of one point alas, was none other than Klubradio, it is easily deduced from the judgment that Klubradio actually triumphed in this tender, too. However, the Media Council has not yet seen the time ripe to come out and say it. In this way, Klubradio, with two frequencies under its belt, can be worried sick about whether it has a future at all.
It is this worry that the amendment proposed by the media-sensitive mayor sought to allay by providing that frequencies advertised by the ORTT can be awarded to commercial stations only, regardless of anything to the contrary in the original tender announcement. In reality, there is one single case where this provision is relevant: Klubradio’s bid for the 92.9 MHz frequency. In other words, Klubradio will get the 92.9 if it resigns community status and thus the fee waiver that comes with it. If it does, it will be able to carry on, albeit on a frequency with a range inferior to the one it currently uses, and at a higher cost — but at least preserving its program format unscathed. The market will surely take care of the rest. It is a market where stations with a similar profile, particularly Lánchíd, are exempt from the service fee as community content providers, and where InfoRadio has a good chance to be also waived that fee in the future.
The MP’s proposal permitted the reading that the Media Council will simply terminate the tender for 95.3 MHz, thereby effectively precluding Klubradio from continue broadcasting on this band on a temporary license, which would leave the stations without an alternative. In short, if Klubradio declines to accept the inferior frequency, it will have nowhere to go. Truth be told, representative Szabó did not spread it thin.
Interestingly, what had created shock waves of consternation Tuesday morning became past tense by the afternoon. Erzsébet Menczer, a Fidesz-Party representative with more of a background in media affairs, who had actually co-authored the Media Act, filed a proposed correction to Szabó’s original amendment proposal. I would like to believe that this move was not entirely unrelated to the indignation Szabó’s motion had created, and it probably wasn’t. This is good news, insofar as it indicates the sound workings of public scrutiny. On a very short notice, we managed to publicly thematize a rather complex legal text and to explain why it would not work the way it was. Or did we?
Menczer’s motion, which has now been adopted, contains a number of provisions regarding the frequency tenders, and a related earlier proposal by a cultural committee makes it clear that those provisions will apply to ongoing cases. The effect that takes effect retroactively… Hmm.
There is a reading of this proposal that is so mean that I prefer to believe it is not true. According to the proposal, all content service contracts that radio and television stations signed with the ORTT back then will terminate on December 31, 2012. Generally, this should not present a problem, given that these contracts have been transformed into so-called administrative contracts by the Media Council in accordance with the new law. The sole exception is of course Klubradio in respect of the 92.9 MHz frequency, whose content service contract will be accomplished by the court when its decision has become final and non-appealable sometime in June. (The likelihood that this final judgment will not sustain the first-instance decision is very small.) It must be borne in mind, however, that the Menczer Proposal repeals those provisions that authorize the transformation of the old contracts into the new administrative type. This creates a situation in which Klubradio, in June, will be stuck with contract that will terminate on December 31st by the force of law, because the station will have no way to apply for re-categorizing that contract in accordance with the new law.
But just to make the conspiracy theory complete, let us entertain the following scenario. According to the proposal, if Klub is indeed awarded the 92.9 MHz frequency by the court, it will be burdened by a conflict of interest that will prevent it from bidding for the 95.3 MHz. In effect, it will lose both frequencies. That’s scary.
But it does not have to be that way. It is sufficient for the court to create an average contract in compliance with the new law, or for the Media Council to shirk the consequences of the above scenario. If it does not, the case will likely be brought before the Constitutional Court, which has so much import that the station’s triumph could be virtually guaranteed ahead of time. Except that Klubradio will not exist on any band anymore.
This is not the end of the story, though. The amendment proposal declares that no entity other than the Media Council is entitled to execute a media service contract. The Media Council, however, is not obliged under a new provision of the proposal to enter into contract with the winning bidder. One thing that follows from this is that even the court will not have the power to create that contract for the 92.9 MHz, and the whole case will have to revert to the discretion of the Media Council. The language of the law does not address the grounds on which the authority can rightfully refuse to enter into contract with the winning bidder. So it’s just a matter of whim, which makes the entire tender completely absurd quite apart from the specific case at hand.
In light of all these considerations, it is of secondary importance that these latest proposed amendments have successfully dispelled doubts concerning the right of politicians to rescind publicly made statements, enshrined safeguards for the protection of sources even in misdemeanor proceedings, and put in place rules regarding the president of the Media Council that have effectively torpedoed the motion filed with the Constitutional Court by fundamental rights Commissioner Máté Szabó. The bottom line is we are dealing with legislation that is impossible to follow, opaque, impetuous, and professionally inferior in just about every way. In short, business as usual these days.
Addition: the final text of the modification contains three risks to the Klub Radio. Once, according to the law the Klub Radio can’t get a new temporary license after the judgment regarding the 95.3 MHz. In this case, from 7th June there is no possibility to broadcast, in spite of the favorable judgment. Secondly, there is no process to convert the contract concluded on the basis of the old media law to a contract appropriate to the new law. Thirdly, the Klub Radio can’t get a community license. According to the new law, community status can be awarded just in a tender that was published by the Media Council or in a specific process that can be initiated by a radio or television provider that doesn’t use frequencies; Klub Radio don’t meet these requirements. In the end, we can only conclude that the future of the Klub Radio depends on the law interpretation of the court in the 92.9 case or on the goodwill of the Media Council.