Communication Regulatory Agency (CRA) Is an Independent Regulatory Body, Whose Activities

Helena Mandić

Director of CRA Legal Department

19 November 2001

Communications Regulatory Agency of Bosnia and Herzegovina – History and Ways Forward

Introductory Notes

Communication Regulatory Agency (CRA) is an independent regulatory body, whose activities and efforts are of pioneer nature in Bosnia and Herzegovina. The name of the agency itself comprises a word regulation. With regard to broadcasting, regulation in itself means establishment and maintenance of order in that field – and with regard to telecommunications, in the BiH circumstances, it means a creation of a healthy telecommunications market, particularly focusing on removal of the existing monopoly in the field of telecommunications services. As the purpose of this Conference is to discuss the perspectives of media policy in South-East Europe, this paper will mostly be related to broadcasting issues.

Need for Regulation

There are two basic reasons for regulation in the field of broadcasting. One is the impact of the media and the other is the scarcity of frequencies, or rather of broadcasting opportunities. The impact – and by that we mean the fact that broadcasting reaches into your homes, everybody has got a TV set and it is fairly difficult to defend yourself against certain images, or at least to defend your children against them. In the area not strictly regulated by law, the media enjoys a generous freedom and a great power. However, there are corresponding duties for this, for the media should never forget that in return for freedom, there are duties.

It is not uncommon for believers in “out-and-out liberalism” to criticise the existence of the regulators. They propose instead that regulation is left to market forces alone. They forget, however, that one of the functions of the regulatory bodies is precisely to make sure that market forces are actually able to operate freely.

This is not always the case as we see with all of the arguments about protected monopolies, dominant suppliers etc. This media market is surely a very special market. The products offered to the customers – information and entertainment – are far more than mere consumer products. They can be the very substance of our culture. They surely require special protection.

That is the primary task of the media regulatory bodies, and as we have seen, they are accomplishing it in Europe in an increasingly professional manner. Each body adapts its modus operandi to the particular needs of the appropriate country. It is a permanent challenge which calls for a clear awareness of their responsibilities on the part of the regulators if the audiovisual media are really to serve the public interest. There will be opportunities to develop and enrich our media environment by providing ever more imaginative educational and informative opportunities for all citizens in which horizons are extended and minds are stretched.

However, the regulation in field of broadcasting is under no circumstances to be understood in terms of censorship. On the contrary, regulation means positive approach to establishment and enabling of professional media in B&H, especially considering that media is treated to be the forth power in any state, after legislative, executive, and judicial bodies. Another aspect of importance of regulation is found in the fact that freedom of speech and freedom of expression have their responsibilities. As the Article 10 of the European Convention on Human Rights states that the exercise of free expression may be subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Communication Regulatory Agency starts from the premise that media regulation makes an important contribution to a healthy broadcasting environment by emphasising and supporting creative freedom, cultural and political diversity and the democratic process, while protecting human dignity.

CRA – History

The agency, first named the Independent Media Commission (IMC), was established on 11 June 1998 by the High Representative, who acted in accordance with injunctions from Annex 10 of the General Framework Agreement for Peace (GFAP). The Commission became operational on 1 August that same year, headed by an international Director General and international heads of six departments. The High Representative is a unique function in the International Law. He has wide authorities in the implementation of the GFAP. He is to facilitate the efforts of the parties and to coordinate the work of international organisations. In addition, the High Representative is the final authority when it comes to a civil implementation of the GFAP (Article V, Annex 10). It means that the High Representative has a responsibility and authority to interpret the GFAP and to determine what needs to be done in order to achieve implementation. The Peace Implementation Council (PIC) has on a several occasions emphasised the authorities of the High Representative. Although the High Representative remains the final authority, he can delegate some of his competence to the commissions established following Annex 10 of the GFAP.

The IMC was the first commission to be established following article II of the Annex 10, and has wide authorities in the field of media. The need for an institution such as the IMC was recognised already in Bonn, at the PIC meeting in December 1997. Considering the gap left in the GFAP regarding media, and fully aware of the extremely important role media can play in the peace agreement implementation, the PIC leaders gave the High Representative the go-ahead. His was to commence the process of liberating media from direct political influence and helping it in its adjustment to accepted European standards and norms. At the following PIC meeting, held in Luxembourg in the summer of 1998, the IMC was entrusted with regulating and nurturing the processes of media reconstruction.

As mentioned earlier, the IMC came to life in 1998 as an independent commission, of a transitional character, with a very clear and comprehensive mandate. Briefly, the mission included: licensing all broadcasters; drawing up such codes of practice for broadcasters and other media as it considers appropriate; managing and assigning spectrum for broadcasting purposes; ensuring adherence to licence conditions and codes of practice; setting licence fees and requiring the disclosure and provision of such information as is necessary for the due performance of regulatory obligations[1]. The 11 June Decision also presumed that the IMC would hand over its function of managing and assigning broadcasting frequencies to an appropriate state agency, which was to be established under the state Telecommunication Law. Under the Telecommunications Law that was first imposed by the High Representative and later adopted by the BiH Parliamentary Assembly, the Telecommunications Regulatory Agency was established to deal with all telecommunications issues, apart from managing and assigning of the broadcasting frequency spectrum, which remained under the IMC control.

Already in December 1998, at the PIC meeting held in Madrid, the Council welcomed the successful establishment of the IMC, in accordance with the Bonn PIC Conclusions, and subsequent deliberations and rulings issued by the IMC. It also concluded that the work of the IMC was crucial for building a legal foundation for media, in line with the best international practices, and called upon relevant local authorities to cooperate with the IMC. The Madrid Declaration requested the IMC to announce by the end of 1999 a tentative date after which its international supervisory element could be withdrawn, an eventuality foreseen in the Bonn PIC Conclusions. Consequently, the IMC Council discussed this specific request for the very first time during its two sessions in March and June 1999, having concluded that at the time the situation did not allow for a hand over based on strict time criteria, but on certain objectives.

As far as IMC transition is concerned, it commenced in November 1999, when a national Deputy of the Legal Department took over the Head posting, followed by the same changes in the Public Affairs Department in February 2000. Effective 1 June 2000, all national Deputies became the respective Heads of Department, while internationals, whose number has already been reduced from six to three, have shifted to advisory posts. Meeting and serving new demands, the Monitoring and Complaints Department was split in two, and was represented by Standards and Complaints, and Compliance Monitoring. This structural change also took effect as of 1 June 2000.

The Peace Implementation Steering Board had referred at its meetings on 23/24 May and 7 December 2000 to the necessity of adopting a comprehensive approach to communications by combining the competencies of the Independent Media Commission (“IMC”) and the Telecommunications Regulatory Agency (“TRA”) so as to develop thereby a State-level regulatory mechanism for telecommunications and media.

On 2 March 2001, the High Representative passed the Decision on Combining the Competencies of the Independent Media Commission and the Telecommunications Regulatory Agency (TRA), thus creating the Communications Regulatory Agency (CRA) - single communications regulator having jurisdiction over both broadcasting and telecommunications. The CRA, in accordance with the decision is to be the sole body to discharge regulatory functions of Bosnia and Herzegovina in the field of communications. The Decision also provided that all acts, codes, rules, guidelines and decisions made by the IMC and the TRA remained in force unless replaced or amended by decisions made by the CRA, and also that all ongoing initiatives undertaken by IMC and TRA were to continue unabated.

The process of amending the current Telecommunications Law (which will also include renaming it to Law on Communications) is ongoing. The Law will in details regulate the responsibilities and functions of the CRA. Until the amendments enter into force, the legal foundation of CRA is the HR Decision of 2 March 2001. CRA has the status of an independent body and is a state-level institution, with the necessary foundation provided by the founding instrument.

With this combining, the mandate and activities of the CRA now includes issuance of telecommunications licenses and management of this aspect of the field of communications, too, widening its mandate and field of responsibility.

The present structure of the CRA is composed of its Council and Enforcement Panel, the Chief Executive Officer (CEO), and three Divisions: Broadcast, Frequency Spectrum, and Telecommunications, together with the Legal, Public Affairs, Finance and Administration Departments. The position of the Chief Executive Officer is the one encompassing supervisory function for the CRA and its wider mandate. The present structure also includes remaining international deputy for the CEO and three international supervisors.

The Council determines general policy and acts as an appellate body for reviewing decisions made by the Enforcement Panel or the CEO. The Council is comprised of three international and four national members[2].

The Enforcement Panel decides on serious breaches of the licence conditions and the IMC Codes[3]. The Enforcement Panel is comprised of two international members, experts in media and regulatory matters, and four esteemed citizens of BiH representing all the constituent peoples.

Rules and Regulations

Since its inception, the IMC – now CRA - has created a number of codes and rules that are binding for the BiH broadcasters. All such rules have precedence over any existing laws or regulations on media applied in Bosnia and Herzegovina, which are in contradiction with it. All rules are subject to revision in the light of experience and changing circumstances. The CRA advises broadcasters on interpretation, monitor compliance and investigate complaints. It is very interesting to notice that the broadcasting community, in the beginning of the IMC mandate, did not comply with the regulations that much, not taking the whole conception of the regulation that seriously, but the thorough work performed by the IMC staff has resulted in the media community now being strongly involved not only in enforcement of the rules, but also in the creation process through the inputs sent during the drafting procedure. The common point for all CRA rules is that they give a basic and simple set of rules for broadcasters. However, in order to assist the broadcasters in the implementation of the rules, the guidelines have been issued with detailed explanations of certain rules that may cause confusion.

The first set of rules passed by the IMC was Broadcasting Code of Practice which has been in force since 1 August 1998. This Code sets out the rules and standards applicable to programme content broadcast by all broadcasters in BiH. This Code can also be called a "constitution" for the broadcasters, because, apart from the programme standards, it also set out basic principles that have later been detailed in other IMC Codes and rules.

The Preamble of the Code states, inter alia: "Broadcasters are responsible for the content of all material transmitted by them, whatever its source, and for the professional activities of persons employed by them. Violation of the provisions of this Code may expose broadcasters to sanctions which will vary in accordance with the gravity of the breach."