Disclaimer.  The materials contained herein represent the opinions of the author and editors and should not be construed to be the view of the American Bar Association (ABA) or the Central and East European Law Initiative.  The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and accordingly, should not be construed as representing the policy of the ABA.

Related Papers.  The reader is encouraged to consult another paper specially prepared by Nicholas Johnson for this purpose, "Georgia's Media Future:  A Personal View of Options and Opportunities."  It is available, in English, from the ABA/CEELI office in Tbilisi, Georgia (or Washington, D.C., USA).  It is also available, online, from Nicholas Johnson's Web page: http://soli.inav.net/~njohnson The reader will also find of interest Nicholas Johnson's March 17, 1998, paper, "Comments of Nicholas Johnson on the Freedom of Information Proposed Law of the Parliament of Georgia As translated from Georgian to English by the National Democratic Institute February 24, 1998."  It is also available through the ABA/CEELI offices in Tbilisi and Washington, in either English or Georgian, and from Nicholas Johnson's Web page, above (in English only).

U.S. Law Orientation/Bias.  As a U.S.-trained lawyer/law professor, and a former Commissioner of the U.S. Federal Communications Commission (F.C.C.), it is unavoidable that I bring the perspective, or bias, of the legal system most familiar to me in general, and the F.C.C. in particular.

The Law.  It is difficult to identify for the reader precisely the draft legislation to which these comments apply.  The document before me is headed "The Law of Georgia on Broadcasting."  It is undated, and does not indicate the source.  It contains 35 articles, and consists of 11 unnumbered pages.  The first words of Article 1 are, "The purpose of this law is to . . .."  The entirety of the last article, Article 35, reads, "This law should be inactivated [sic] as soon as it is published."  The last words on the last page are: "The President of Georgia/Eduard Shevatdnadze."

Translation.  I am unable to read Georgian -- the language in which this law was created.  I am grateful to whomever provided the translation from which I have been working.  However, there are hazards to providing comments based on translations.  There may be an inaccuracy in translation; there may be a word, or concept, in Georgian that has no direct English equivalent; there may well be a cultural, historical or legal context for a Georgian word that gives it meaning and purpose unknown to me.  Aside from some conversations, I am unaware of all of the "legislative history" -- including the background purposes and goals -- of this legislation that might very well give more, or different, meaning even to the English translation.  Obviously, such problems are only multiplied when these comments of mine, which are being drafted in the English language, are then translated into Georgian.

Drafting Style.  Every lawyer -- or writer of any kind -- has his or her own style.  There are many things I would do differently from the way others writers have done them.  Indeed, I rewrite my own material, often going through ten drafts or more.  It is for this reason (not because of any inadequacy in the legislation) that I would have written differently, or would now rewrite, virtually every provision of this law.  It is hard to know when matters of style become matters of substance.  But, for the most part, I have refrained from suggesting stylistic changes -- matters involving sentence structure, ambiguous referents, incomplete sentences, grammar, and so forth.  I am assuming that, once final language is agreed upon, someone will perform that kind of rigorous proof reading (or, perhaps, that the problems exist only in the English-language translation and not in the original Georgian version).

Brevity of Comments and Presumption of Drafters' Intentions.  These comments were prepared more hurriedly than I would have liked -- but in an effort to meet today's deadline and offer at least some response early enough for it to be of use.  Accordingly, there is not comment on each article.

There are a number of articles that raise substantive issues involving reasonable alternative policy choices.  Many of the articles for which no comments are provided are of this type.

For example, Article 32 (1) contemplates the propriety of a broadcaster relinquishing program control for as much as 30% of the broadcast day. Similarly, Article 32 (2) requires that a minimum of 50% of programming must be produced in Georgia.

One could debate the wisdom of the policy choices reflected throughout this legislation, or the appropriate levels if such choices are to be made.  I have engaged the presumption that the drafters thoughtfully considered such matters and deliberately made the decisions they did.  Thus, with a couple of notable exceptions, there is, generally, no commentary by me with regard to policy choices of this kind for which a reasonable argument in support could be fashioned.  (This is so even if I, personally, might have preferred a different approach, or if I find the argument for a contrary provision more compelling.)

 Chapter II.

Art. 3 (4).  To the extent it is desired to create relatively more independence for the members of the Council, "staggered terms" would be a way to do that.  The way we do that in the U.S. is to have one position open each year, with the term of office equivalent, in years, to the number of Council members.  For example, if there are five Council members, each would serve a term of five years that would run from the date of appointment.  Only one would be appointed each year; say, from the year 2000 to 2005, from 2001-2006, 2002-2007, and so forth.  Obviously, this creates a problem when the agency is first created; the solution is to appoint the first five for terms of varying length; e.g., one would be appointed for, say, 1998 to 1999, one for 1998-2000, another for 1998-2001, and so forth; when those terms expire, their replacements would be appointed to full, five-year, staggered terms.  (If the choice is for seven Council members, the same principles would apply, but with seven-year terms.)

Art. 4.  This may be more detailed/complicated than one would want to embody in legislation.  On the other hand, if it is known to create precisely what is desired under all foreseeable circumstances, then this language does it.

Art. 6 (1) (d).  "Systematic unsatisfactory implementation of duties" may provide more opportunity for arbitrary interference with independent action by Council members than is wise, or desired.

Art. 6 (1) (g).  "Court judgment" may be broader than desired.  A minor offense -- perhaps one charged for this purpose -- could lead to a "court judgment," which would then be the basis for removal of a Council member.

Art 7 (2).  [1] Because the Parliament/President presumably can cause legislation to be enacted which would overrule any Council regulations, prior approval is not necessary, and is undesirable if the independence of the Council is thought to be important. [2] The existence of an "independent regulatory commission," especially one authorized to issue regulations, suggests the desirability of enacting something like the U.S. Administrative Procedure Act to establish the procedural steps, rights of affected parties, restrictions on Council members, and other provisions necessary to a fair and impartial political and legal process.

Art. 9.  There is always an issue in such a body regarding the division of powers between the Chair and members.  On the one hand, "administration by committee" often becomes unwieldy.  On the other hand, if power is truly to be shared among the five/seven Council members it might be desirable for a majority of the members to retain a power to review and reverse the Chair's otherwise-unilateral decisions.

Art. 10.  See discussion of terms at Art. 3 (4), above.

Arts. 11 and 12.  What is gained by calling these individuals a "Commission of Experts" rather than "employees"?  How do they differ from the "staff" referred to in Art. 7 (3)?  What is to keep the Council from contracting with any independent expert/consultant they would care to use without the consultant being part of a "Commission of Experts"?  (This approach would also have the advantage of giving the Council access to a much wider range of expertise.)

Art. 13.  As a matter of personal preference, I would prefer -- at least at this stage of Georgia's broadcasting development -- a limit of one station per person/entity (radio or TV; not both).  To begin with that more rigorous standard would (a) ensure the maximum possible diversity of voices, while (b) preserving the maximum possible flexibility with regard to ownership standards in the future.  (It is always easy to relax standards; often difficult to impossible to tighten them.)  Because there will probably never be anything like the number of broadcast stations in Georgia that there are in the U.S., for a single owner to control two TV and three radio stations is giving them media influence over a very significant share of the Georgian population.

 Chapter III.

Art. 19 [2nd Art. 19] (1). Ten years may be a little long for meaningful regulation of broadcasting.  In the U.S. the F.C.C./Congress began with 18-month licenses and then moved to three-year licenses.

Art. 19 (4).  If channels are limited, and license terms are long, why not permit competition for a license when it expires?  Why not get the best service to the people possible?  Why not have the possibility of lack of license renewal as an added incentive for the licensee to provide the best possible public service?

 Chapter IV.

Art. 30.  This may be unnecessary.  There are, presumably, many additional laws besides this one that are as applicable to broadcasting companies as to any other companies.  They are applicable whether or not they are mentioned here.  Listing some, without all of them, could conceivably raise a question as to the applicability of those not mentioned.