Communications Regulatory Agency (CRA) is formally guaranteed the freedom from political control under the Law on Communications of Bosnia and Herzegovina (2003, amended 2006, 2010 and 2012). Law on Communications (Article 39) also sets requirements that should prevent conflict of interest: similarly as the director general, members of the CRA Council cannot be officials in legislative and executive power of Bosnia and Herzegovina (BiH), or members of any bodies within political parties, while any interest of a member of CRA Council in telecommunications’ operator or a broadcaster should be declared, and he/she should exclude himself/herself in “cases representing a conflict of interest”. However, it is not specified what constitutes such conflict of interests (apart from wording of the law on conflict of interest in institutions of BiH).

 

Law on Communications stipulates the merit system in the appointment of members of CRA Council (minimum of five years of work experience in the related fields, experience in both telecommunication and broadcasting, etc.). Article 36 of the Law on Communications stipulates the independence of CRA in decision-making. However, political influence and pressures have persevered over the years, and the risks of such pressures have been increased with changes in the procedures of appointments in CRA since 2012 (more below), continuing in 2014 without any adequate remedies. 

 

Transparency of CRA is regulated under the requirements for transparent procedures concerning appointment of CRA officials, adopting new regulations, reaching decisions upon complaints on media content, etc. CRA submits annual reports to the Council of Ministers of BiH, as stipulated in Law on Communications, Article 44. CRA publishes annual reports on its website, as well as decisions regarding the complaints about broadcasted content. The regulator is also obliged to respond to requests for information under the Freedom of Information Act of BiH. CRA seems responsive to requests for information, and generally follows minimum transparency requests, facing no major criticism in this regard. The exception was the case of amendments to Code on Commercial Communications from 2013 (later abandoned) when the procedure of changing the code was seen as unjustifiably hasty and unresponsive to the needs of the entire community and the public.     

 

CRA played an important role in setting a regulatory framework for broadcasting in BiH, particularly in fight against hate and discriminatory speech and in overall pacification of media content in years after the war. It continues to play an important role in regulating broadcasting sector, and despite the ongoing political pressures, the procedures of licensing of broadcasters, for example, is still considered to be apolitical. However, limited capacities do not allow CRA to perform a regular monitoring of implementation of content requirements by broadcasters; it rarely substantially engages in policy initiatives outside its constricted powers. 

 

Top management appointments in CRA are highly politicised. Supposedly due to the lack of political agreement, the Director General has not been officially appointed for several years (instead, Kemal Huseinović acted as director for several years until he resigned in December 2014; Jasenko Lasta is acting as director since the beginning of 2015). At the same time, the merits of the candidates for the CRA Council seem to be neglected; members appointed at the end of 2013 are considered to have close political affiliations. More direct political interference is made possible with amendments to the Law on Communications adopted in 2012, which introduced an ad hoc body within the Parliamentary Assembly of BiH that is proposing the list of 14 candidates for the CRA Council (which was previously the role of the CRA Council itself). The list is sent first to the Council of Ministers, before being submitted to the parliamentary procedure. In that way not only the Parliament is given more power, but the role of the Council of Ministers remains unclear, raising additional concerns about political control over the appointment. It remains to be seen if newly formed government will reach agreement on the appointment of director general in 2015.

 

The independence of CRA is formally assured through independent sources of financing, such as technical fees for licences for broadcasting and telecommunications, as well as donations. The budget proposal approved by the Council of CRA is submitted for approval to the Council of Ministers of BiH, which does not have the power to change the proposed budget by more than 20 percent (Law on Financing BiH Institutions, 2004, amended 2009; Article 9). Annual reports on CRA are regularly published on its website, and provide relevant track record of its performance. However, the 2014 annual report has not been published by mid-May 2015. Additional assessments on the functioning of CRA are provided by audit reports (2013 audit report available here). The reports have been largely positive, confirming the financial reports of CRA as adequate. However, there is lack of substantial external assessments of the transparency, independence and professionalism of CRA.

 

 

Since 2011, the audience measurement has been marked by different controversies. Some sources expressed doubts in reliability of the results. The Association of Broadcasters and Advertising Companies “UMI” lost its role of commissioner of the audience measurements, and now new company Audience Measurement – AM (instead of previous provider Mareco Index Bosnia) is contracted individually by TV broadcasters. In 2014 and at the beginning of 2015, some sources suggested that common ownership over AM, a laboratory that licenses the equipment for measurement, and allegedly a TV outlet, possibly corrupts the measurements. AM responded to such accusations that it is merely a campaign against them guided by interests of few media and advertising agencies. One thing is certain: increasing controversies raise doubts about reliability and credibility of TV measurements in BiH. Quality and the extent of the audience research in other media sectors are limited (diary method in radio sector, no monitoring of print circulation, use of Google analytics or Alexia and only partly of Gemius Audience measurements in online media sector).

 

 

There have been no specific rules on concentration of ownership or on cross-ownership in media since 2006, when the 2004 Rule on Media Concentration and Ownership of Electronic and Print Media expired. The Council of Competition of BiH is however authorised to consider specific cases of possible prohibited competition and misuse of market position upon a complaint (under Competition Act, 2005), including “state and local public institutions, when they directly or indirectly participate or affect the market” (Article 2, paragraph 1.b). So far there has not been any strategic consideration, action or statement of this body, for example, concerning the competition between the public and commercial media. There are also no major decisions in the cases of individual complaints on possible abuse of dominant market position. For example, in case of the recent complaint filed by OBN television against three public service broadcasters, the Council of Competition did not reach consensus between its members, and no abuse of dominant market position was confirmed. Although CRA has expressed the need for anti-concentration rules that would pertain to entire media sector, including press agencies and print and online media, such initiative did not receive needed attention by relevant institutions. In these circumstances the concentration remains an open risk, although few registered cases of multiple ownership still does not qualify as an alarming concentration. Some actors however express concerns over possible misuse of dominant position of local public broadcasters when compared to private broadcasters. Concerns have also been raised with regard to possible corruptive practices arising from the alleged common ownership of a TV outlet, audience data provider and a laboratory that licenses equipment for audience measurement.

 

Public service media

Supervisory bodies of public service broadcasters in Bosnia and Herzegovina are perceived to be politically suitable, allowing or even contributing to political interference in functioning of PSBs. PSB reporting to the parliament is often delayed, and accessibility of the  reports for the public is not consistent.

 

Editorial independence is stipulated in the Rule 57/2011 on Public Radio and Television Broadcasters, the Law on Public RTV Service of BiH, the Law on RTV FBiH and Law on RTRS. In practice, however, the situation is quite the opposite – political interference in PSB is believed to be very strong. RTRS is believed to be under a complete control by the government of RS, i.e. the ruling party Alliance of Independent Social Democrats party (SNSD) while RTV FBiH has been for a long time perceived as an advocate for Social-Democratic Party (SDP). Third public service broadcaster - RTVBiH – is considered to be more balanced, but also less relevant for political actors.  

 

The appointment of members of supervisory bodies  – Boards of Governors – in each of the public service broadcasters is highly politicised. While ethnicity of the members is predetermined (one of each constituent peoples – Bosniaks, Croats, Serbs, and one representative of ‘Others’), there is a lack of precise professional criteria for the appointments, although the Law on Public RTV Service of BiH specifies they should be the “most qualified candidates”, and the laws on appointment of ministers and other public vacancies stipulate that criteria should include level of education, expert knowledge/experience etc. The authority over the appointments in RTRS and FTV is left completely in the hands of the Parliament of FBiH and the National Assembly of RS (Law on RTV FBiH and Law on RTRS, respectively). Prior to the legislative changes in 2013, the Communication Regulatory Agency (CRA) had a role in submitting the list of proposed candidates for the RTRS Board, but the National Assembly of RS could easily refuse the proposed list. In the case of BHRT, the CRA still has this role of proposing the members of the Board. 

 

Members in all three broadcasters cannot perform the functions within legislative, executive or judicial power, nor can they hold membership in political parties (according to the Rule 57/2011 on Public Radio and TV Broadcasters). However, in practice the boards are perceived to be politically suitable, allowing or even contributing to political interference in functioning of PSBs. Political pressures and obstructions are visible in the case of the Board of FTV: after the 2012 illegitimate attempt of the Parliament of FBiH to dismiss the Board and appoint new members failed, the previous members remained on their positions although their mandate expired. Since August 2014, when the third of the previous members resigned, the Board is left with one member only.  Each public service broadcaster should have a Programming Council; it should have an advisory role and include members from different groups. In practice their actual performance is not monitored, and in the case of FTV the Programming Council does not exist at all in recent years.

 

The public service broadcasters have the independent sources of revenues, mainly subscription (licence) fee and advertising. All households and legal entities possessing a radio or television receiver are obliged by law to pay the fee, but the actual collection is limited (74 percent of invoiced amount collected in 2012). Even more, if all households are taken into account, the estimated collection goes down to as low as 46.5 percent. The amount of the collected licence fee has been constantly dropping in past several years: in the first four months of 2014 it dropped by 1.6 million KM compared to the same period in 2013. The growing number of IPTV users is excluded from the collection through phone bills. In addition, political disputes hinder collection of subscription/license fee as well. For example, the Croatian political representatives encourage citizens of Croatian nationality not to pay the subscription fee, claiming that the existing PSB system in BiH is not responsive to the needs of Croatian people. They demand a new PSB institution to be established with programming in Croatian language. Finally, political battles have been influencing the latest debates about the collection scheme that formally expired on 26 of April 2015. The solutions for a new mechanism of the subscription fee collection were hindered by political disputes between parties: representatives of SDS claimed at the parliamentary debate in March 2015 that RTRS is a service of one party – SNSD and therefore should not be financed by the people. At the same time, SNSD advocates for direct funding of RTRS from the entity budget, made possible with 2013 amendments to the Law on RTRS. At the end, the proposed solution was not adopted in the Parliament. As a temporary solution, the management of public service broadcasters instead reached agreement with the telecom operators in April 2015 to continue collection through phone bills, until the end of 2015.

 

Over the past years, the management of PSB system (mainly FTV and BHRT) raised concerns about the alarming financial situation within these broadcasters (for example, here), but there is no assessment that would give insight into what are the actual needs for their proper functioning to accomplish public service remit. PSB system in BiH is robust and in urgent need for rationalisation of its resources and efficient coordination between the three broadcasters. Concerns that the excessive advertising share of PSB system in the media market and in the budget of some of the PSB (according to CRA, FTV had around 40 percent of its overall income coming from commercial advertising in 2012) can corrupt its public service role remain in 2014 as well.