Infso-2008-00093-00-02-en-rev-01

HU	MS	EW (%TQT)		IP (%TQT)
RW (%IP)
Broadcaster	Channel	2005	2006	2005	2006	2005	2006
Magyar Televízió Rt.	MTV1	88.83%	91.80%	41.76%	56.10%	60.43%	67.20%
Magyar Televízió Rt.	M2	95.32%	95.30%	36.52%	45.00%	66.74%	69.60%
Duna Televízió Rt.	DUNA TV	90.96%	90.60%	90.96%	100.00%	74.46%	74.50%
Viasat Hungária Műsorszolgáltató Rt.	Viasat3	8.37%	12.40%	5.41%	12.30%	51.56%	40.60%
Magyar RTL Televízió Rt.	RTL KLUB	54.97%	53.10%	35.26%	32.50%	91.35%	96.00%
MTM-SBS Televízió Rt.	TV2	50.76%	51.20%	45.35%	93.40%	66.57%	59.10%
HBO Rt.	HBO	20.58%	20.60%	17.49%	51.60%	96.54%	96.60%
HBO Rt.	HBO2	NC	17.70%	NC	49.40%	NC	96.70%
Mixolid Szolgáltató Rt.	Fix Televízió	64.31%	100.00%	NC	NC	NC	NC
AGRO-TV-ATV Rt.	MATV	99.95%	81.30%	26.09%	59.50%	89.12%	76.40%
Budapest TV Rt.	BPTV	10.63%	99.70%	2.42%	37.60%	53.55%	37.20%
Spektrum TV Rt.	Spektrum	71.69%	69.80%	68.11%	96.90%	70.10%	77.90%
Z+ Műsorszolgáltató Rt.	VIVA TV	63.87%	73.70%	62.46%	99.10%	97.53%	98.90%
Filmmúzeum Rt.	Film-múzeum	90.14%	87.60%	61.29%	72.90%	18.62%	21.40%
PAX TV Rt.	PAX Televízió	99.47%	99.80%	71.78%	68.50%	36.48%	58.40%
HÍR Televízió Rt	HírTV	99.54%	100.00%	2.71%	4.80%	98.89%	100.00%
Paprika Tv	Paprika Tv	NC	83.70%	NC	41.50%	NC	72.90%
Paprika Tv	TV Deko	NC	77.00%	NC	56.90%	NC	86.92%
Sport 1 Műsorszolgáltató Zrt.	Sport1	99.76%	100.00%	47.02%	35.80%	100.00%	100.00%
Sport 1 Műsorszolgáltató Zrt.	Sport2	99.93%	100.00%	44.33%	28.30%	100.00%	100.00%
Hálózatos televíziók Rt.	Hálózatos televízió	85.95%	88.50%	78.45%	78.80%	88.44%	59.00%
Echo Hungária TV Rt.	Echo TV	NC	98.70%	NC	11.30%	NC	11.30%
Compliance rate (IND 3/5)		68%	86%	64%	91%
Average % (IND 2/4/6)		71.95%	76.93%	43.38%	53.91%	74.14%	71.46%

A) Reasons given by the Member State for failure to achieve the proportions

1. Majority proportion of European works (Article 4)

HBO’s channel HBO Zrt. and Viasat3’s channel Viasat Hungária Zrt. fell short of the 50% European quota. HBO2’s channel HBO Zrt. and Budapest TV’s channel Budapest Televízió Zrt. did not comply with the statutory regulation in 2006 and 2005, respectively.

No data are available on the performance of TV Paprika Zrt’s Paprika TV channel and on HBO2’s channel HBO Zrt. in 2005. TV Paprika was launched in late 2004 and was exempted from the obligation to meet the quotas by the National Radio and Television Commission (hereinafter: “ORTT”) by Decision No 666/2005 (IV. 4.). Since 2006, the broadcaster has been providing data and fulfilling its obligations. Channel HBO2 failed to supply data; details of the action taken by the ORTT against the owner HBO Zrt. are set out below.

In 2005 and 2006, HBO Zrt. was exempted from the obligations by ORTT Decision No 1859/2004 (XII. 15.) which was based on the authorisation granted by Article 7(3) of Act I of 1996 on Radio and Television Broadcasting (hereinafter: “the Act”). There was therefore no basis for sanctioning the broadcaster’s non-compliance.

In its application for exemption, HBO Zrt. explained that it considered it realistically possible to allocate 23% of the annual broadcasting time of both HBO and HBO2 to broadcasting European works. This is because of the channel’s thematic nature and subscription-based business model combined with the fact that, in accordance with the “non-slipback” clause, the proportion to be achieved in the future cannot be lower than 23%.

Partly in view of the programme structure of the broadcaster and of its subscription-based nature, the ORTT accepted the arguments set out in the application and granted an exemption to the broadcaster for 2007 by Decisions No 917/2007 (IV. 11.) and 918/2007 (IV. 11.).

HBO — ORTT Decision No 917/2007 (IV. 11.):

“In consideration of the application for exemption submitted by HBO Zrt., the ORTT authorises the broadcaster to allocate 23% of its broadcasting time on its HBO channel to European works, 1.5% to works produced originally in Hungarian and 1.3% to Hungarian language works produced by independent producers, by way of derogation from the proportions specified in Article 7(1) and (2) of the Act.”

HBO2 — ORTT Decision No 918/2007 (IV. 11.):

“In consideration of the application for exemption submitted by HBO Zrt., the ORTT authorises the broadcaster to allocate 23% of its broadcasting time on its HBO2 channel to European works, 1.5% to works produced originally in Hungarian and 1.3% to Hungarian language works produced by independent producers, by way of derogation from the proportions specified in Article 7(1) and (2) of the Act.”

In all likelihood HBO Zrt. qualifies as a broadcaster for which meeting the requirements of Articles 4 and 5 of the Directive is “not feasible”. As regards the non-compliance, it should be considered that the broadcaster is a thematic channel specialising in a specific area and accessible exclusively by subscription.

Since the reporting obligation was introduced (on 31 May 2004), Viasat Zrt. has never met the statutory requirements concerning European works. The broadcaster was not granted any exemption and therefore should have met the programming requirements laid down in Article 7 of the Act. In response to this non-compliance, the ORTT started administrative proceedings by Decision No 1320/2007 (VI. 6.).

Viasat Zrt. applied to the ORTT for an exemption, giving a commitment gradually to achieve the proportions required within a maximum of four years. By way of derogation from Article 7(1) and (2) of the Act, it undertook to ensure, in 2007, a proportion of 40% for European works and 30% of the 10% quota set for independent works. The ORTT contacted the broadcaster to conclude an agreement on the detailed terms and conditions on how gradually to achieve the set quotas, but received no reply. In the absence of any agreement, the ORTT initiated official proceedings against the broadcaster for non-compliance with Article 7(1) and (2) of the Act on 6 June 2007. By Decision 605/2008 (III. 26.) the ORTT imposed a fine of HUF 1 000 000 on the broadcaster for continuous infringement of its obligation concerning the proportion of European works and independent works in 2005 and 2006.

Budapest Televízió Zrt’s failure to fulfil the requirements in 2005 was due to anomalies in the data supplied, since the broadcaster entered the wrong data — despite several rounds of clarifications — and those data cannot be corrected for technical reasons. In 2006, the broadcaster duly submitted the correct data. The ORTT considers that the broadcaster met the programming requirements in 2005 as well, since practically all its broadcasts comprise works produced originally in Hungarian and the broadcaster had not applied for exemption concerning works by independent producers, declaring that it could meet the relevant statutory requirements. The ORTT considered that this was confirmed by the broadcaster’s programme schedule and the types of programmes it is broadcasting. Under these circumstances and considering the improvement in the broadcaster’s data reporting, the ORTT saw no reason to start administrative proceedings.

2. Minimum proportion of European works by independent producers (Article 5)

Budapest Televízió Zrt. and Viasat Hungária Zrt. fell short of the proportion for works produced by independent producers in 2005, as did Hír Tv in 2005 and 2006. Mixolid Zrt. supplied no data on this aspect.

Hír TV failed to meet the requirement for works by independent producers and recent works. However, this channel has been registered as a broadcaster specialising in news, pursuant to Article 2(43) of the Act, as at least 80% of its daily broadcasting time comprises the same type of (news) programmes. The programme schedule of the channel fully meets this criterion, so its treatment as an exception is fully justified.

Mixolid Zrt. failed to fulfil its data reporting obligation as it did not accept categorisation of its programmes. In the course of implementation of its Decision No 2761/2006. (XII. 13.), the ORTT consulted the broadcaster (which asked for an exemption) as overlaps between the ownership of the company producing its programmes and the broadcaster mean that the programmes produced do not qualify as independent works. The broadcaster has undertaken to resolve the anomaly. In view of the arguments put forward by the broadcaster, the ORTT exempted the broadcaster for 2007 by Decision No 914/2007 (IV. 11.):

“In consideration of the application for exemption submitted by Mixolid Szolgáltató Zrt., the ORTT authorises the broadcaster to allocate 5% of its broadcasting time on its fix.tv channel to Hungarian language works produced by independent producers in 2007, by way of derogation from the requirements set out in Article 7(2) of the Act.”

However, because the broadcaster was failing to fulfil its data reporting obligation, the ORTT started administrative proceedings against the broadcaster, by Decision No 1321/2007 (VI. 6.). By Decision No 606/2008 (III. 26.), under Article 112(1)(a) of the Act, the ORTT called upon the broadcaster Mixolid Zrt. to terminate its unlawful conduct. (The ORTT decided to impose the least stringent sanction under the Act because the broadcaster had infringed its data reporting obligation but not the quotas.)