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Supreme Court Rules Against Gov’t-Critical Klubrádió over 92.9 Frequency

Ábrahám Vass 2021.09.29.

The Kúria, Hungary’s supreme court, has ruled against Klubrádió’s appeal for the use of the 92.9 MHz frequency, saying that one of Hungary’s last widely available radio stations not under the government’s influence lost the frequency due to a flawed application. Klubrádió, however, says the decision was politically motivated and directed.

Klubrádió off-air since February

Klubrádió had to stop analog broadcasting (and continue exclusively on the internet) in mid-February after a Budapest court rejected an appeal by the station against a decision by Hungary’s media authority (NMHH). NMHH’s Media Council (consisting exclusively of ruling Fidesz-delegated members) announced in 2020 that Klubrádió’s license would not be renewed, pointing to six violations of the Media Act during the radio’s last ten years of operation.

Klubrádió, on the other hand, pointed to unfair dealings and political motivation. They insist that only minor administrative irregularities were found for which they paid fines at the time. They also pointed to the fact that the Media Council granted a license to other broadcasters with “the same antecedents.”

Many in fact have suggested political motivation behind Klubrádió being forced off the air as the station has been long known for its government-critical stances. As a matter of fact, it was one of the very last publicly available radio stations not under the government’s influence.

Meanwhile, in April, NMHH decided to provide Spirit FM with the frequency’s temporary license.

Gov't-critical Klubrádió's Frequency Temporarily Goes to Spirit FM
Gov't-critical Klubrádió's Frequency Temporarily Goes to Spirit FM

Hungary’s Media Authority’s (NMHH) Media Council provided Spirit FM a temporary license for the 92.9 frequency, the one for which Klubrádió’s bid had previously been controversially denied. While Spirit FM vows to air government-critical opinions, the decision once again raised controversy and Klubrádió suggests a private deal with the ruling forces.  As we previously reported, […]Continue reading

Then in May, the Budapest Municipal Court upheld NMHH’s decision, after which ruling the radio turned to the Kúria, which brought this latest decision.

Fact

It was made public in June that the European Commission has additionally launched an infringement procedure against Hungary due to Klubrádió’s silencing. EC believes that the Media Council rejected Klubrádió’s application on highly questionable grounds. They say the decisions to refuse to renew the radio’s license were disproportionate and opaque, and breaches EU law. According to the ECJ, the Hungarian media act was applied in a discriminatory way against Klubrádió, while the EU’s telecommunication rules include the principles of proportionality and non-discrimination.

Kúria: only the law

In its ruling on Tuesday, the Kúria fully rejected Klubrádió’s appeal, saying that NMHH’s procedure had been fully in line with relevant legislation. It upheld the earlier decision of the media authority and the Municipal Court, saying that besides “flaws warranting disqualification” in the application papers, the station’s economic operation ran afoul of legal requirements and the conditions of the tender. The flaws disclosed in the tender warranted immediate disqualification under Hungarian law, and fell beyond the purview of NMHH, the Kúria stated.

“Based on those facts, the media authority had no choice but to disqualify the tender. The Kúria also rejected Klubrádió’s argument that the disqualification harmed the principles of freedom of the press and due process,” NMHH commented. Those arguments cannot be the baseline for violating the law or preferential treatment, it said. “Neither NMHH nor the Municipal Court stripped Klubrádió of the use of the 92.9 MHz frequency; rather, Klubrádió did so itself by submitting a flawed, incomplete, and inconsistent tender,” the authority argued.

Interestingly, the case was decided by a three-member panel headed by the Kúria’s president himself.

Fact

András Varga Zs. was recently elected to lead the top court thanks to Fidesz-KDNP’s two-third’s majority, a move which kindled the criticism of several legal experts, including the National Judicial Council’s. Besides alleging political aspects to the appointment, critics also pointed out, for example, that he hasn’t had any prior authoritative experience.

Klubrádió: the party’s decision executed

Klubrádió’s majority owner commented that he didn’t expect a different decision. “András Varga Zs. well executed the party’s decision to silence Klubrádió. The frequency has been taken away, but the radio continues to operate on the internet thanks to the goodwill of its listeners. The Kúria’s absurd ruling confirmed the need for Klubrádió to operate,” András Arató explained. In his view, Klubrádió will not have an analog frequency for the foreseeable future, at least until a potential change in government.

The case surely won’t end here, however. Spirit FM’s license will expire at the end of October, and after this latest ruling becomes final, the 92.9 frequency can be put up for a new tender, according to Media1. Also, in another lawsuit launched in August, Klubrádió also turned to the Constitutional Court as, in their view, the principle of equal treatment has been breached. In addition, CEO Richárd Stock even promised to take the case to the European Court of Justice, if necessary.

featured image via Klubrádió’s Facebook page