Legal eye: Public broadcasting

I am a fan of public radio. Here in Warsaw, my car radio is tuned to Polish Radio Two (Dwójka) and I'm partial to both the music and the quirky auditions. Where else would you find a five-minute Polish etymology lesson during morning drive-time? For similar reasons, I listen to National Public Radio when in the US.

Polish public radio, however, has a distinct advantage over its US counterpart. Far too often it seems, the local National Public Radio station is holding yet another annoying marathon fund-raising drive.

Recently, funding of public broadcasters has become a hot topic in Poland with the debate over liquidating the radio and television receiver tax. Listening to the rhetoric, you might think that the sole source of funding for public broadcasters, whether television or radio, comes from this tax. Under both European Union and Polish law, however, public broadcasters may tap into several potential sources of funding.

EU-approved funding

On several occasions, the European Union has officially expressed its approval for public broadcasting and for member states to grant funding for public broadcasting. Since the declaration of approval in the 1997 Amsterdam Protocol, however, that funding is supposed to be used only for the "fulfillment of the public service remit as conferred, defined and organized by each member state" and may not unduly harm competition. 

My preferred radio station remains a pretty typical public broadcaster, with niche programming and little or no advertising. Frankly, my 10-year-old daughter thinks that classical music is a waste of air-waves.

On the other end of the public broadcasting spectrum, Polish public television looks and feels in many ways like a commercial broadcaster. It airs popular programming, from hit movies to reality shows to soap operas. Of course, it offers some niche programming, such as its TV theater program. But what about that proper use of public funding?

Even with advertising

In 2001, the European Commission prepared a rather lengthy communication in which it attempted to create some general guidelines as to when state funding is deemed to be used for public-service functions and when it could harm competition. The EC acknowledged that public broadcasters could be "dual-funded" by state aid and commercial activities, such as advertising or licensing of programming.

If you've watched Polish public television, you're probably painfully aware that Polish public television sells lots of commercial and sponsorship time. The communication requires that state aid be proportional to the public-service functions and that public broadcasters allocate costs and revenues between their commercial activities and public-service functions. One of the few specific bans in the communication relates to undercutting the prices for advertising.

Polish possibilities

In recognition of the dual-funded nature of Polish public broadcasters, Polish law specifically permits them to sell advertising, sponsorship and licenses for programming. It also earmarks the radio and television receiver tax for public broadcasters and does not exclude the possibility of other public funding.

Similarly, the Polish Broadcasting Law does not draw any distinction between public and private broadcasters in the rules for and limitations on advertising and sponsorship. Both are subject to daily and hourly limitations on the amount of advertising and rules on commercial interruptions.

Both public and commercial broadcasters may also sell sponsorship, which is a mention of a company or product before a specific program. A primary difference between advertising and sponsorship is the length of the spot. A sponsorship spot may not exceed eight seconds.

Let's just hope that as public broadcasters in Poland look for sources of funding, they do not look to the US. I'd prefer not to have to listen to marathon fund-raising drives in Poland during my morning drive.

Judith Gliniecki is a Partner with Wierzbowski Eversheds