Justifying its refusal to grant Duo Media temporary radio licenses, the TTJA cited new rules, which were agreed in the summer. However, according to Duo Media, no agreement had been reached and the TTJA has begun creating new laws by itself.

"The basis for the refusal was, first and foremost, the new rules for obtaining temporary radio licenses, which were introduced by the TTJA, and reported in an ERR article, in August," Risto Rosimannus, a member Duo Media Networks OÜ's management board, told ERR.

"Duo Media Networks is of the opinion that, it is not possible to create new, restrictive regulations in a state governed by the rule of law, on the basis of an arbitrary decision made by  one or another state authority – (in this case) the 101-member Riigikogu in Estonia,"

Over the last year there had been a significant increase in applications for and use of, so-called temporary radio licenses, which are intended to last for a maximum of three months. As a result, the TTJA convened a meeting of radio (station) operators this summer to agree on a set of rules to ensure fair competition. The principles agreed to at that meeting regarding the issuing of temporary licenses were set to come onto force from this fall.

Duo Media had already told ERR in August that, according to their assessment, no agreement had been reached. Therefore, according to Rosimannus, Duo Media believes that the TTJA's refusal to grant the new temporary licenses is unconstitutional.

"Shifting legislative power to the executive is not a sustainable step in a democracy. Therefore, even if it is necessary to change the procedure for temporary radio licenses, a legislative process must be initiated, in which the legislator can decide on the basis of input from the executive and market players whether and in what way, the regulation needs to be changed," Rosimannus said.

"As such, in the view of the Duo Media Networks, the TTJA's decision to refuse to issue temporary radio licenses is unconstitutional. It is not right for the executive to impose conditions on operators that in no way follow on from the law," he added.

Last week, the TTJA confirmed to ERR, that the court case centers on whether the TTJA's refusal to grant Duo Media additional temporary radio licenses was lawful. As the case is still pending, the TTJA did not wish to comment further at this time.

Duo Media: The TTJA's reasoning is flawed

The Media Services Act provides for two forms of radio services: permanent and temporary. Broadcasters can obtain a permanent license for a maximum of seven years, after going through a competitive procedure. However, there is no such process when applying for a temporary license, which can last up to three months enabling the broadcast of temporary programs (For example, Midsummer Radio, or Military Radio used during training exercises) or to cover specific events.

Due Media currently has three temporary radio licenses: two for "Radio Duo" (which operates only with temporary licenses) and one for "MyHit." By way of comparison "Taevaraadio OÜ, " has six temporary licenses,: Rock FM has four and Retro FM two.

According to Rosimannus, Duo Media wanted temporary radio licenses to cover various events, including Christmas celebrations. However, the TTJA refused to issue them.

"The TTJA's decision is also based on a number of other arguments that Duo Media Networks considers either illogical or irrelevant. For example, the refusal was based on concerns regarding competition, such as the need to prevent the creation of a dominant (market) position and to preserve media pluralism. This justification is illogical - we are talking about a three-month temporary radio license in a specific region of Estonia for Radio Duo, which has a market share of 0.2 percent," Rosimannus said. 

Rosimannus believes, that there is no evidence to support either of these claims. "The reasons given by an administrative body when issuing an administrative act must be real and substantial," he said.

Helen Rohtla, head of the TTJA's Information Society Department, explained to ERR in August that according to the principles agreed in the summer, the operation of a radio program would generally be considered temporary provided a single media service provider does not hold more than three temporary radio licenses in order to broadcast in a maximum of three coverage areas at the same time. In other words, the license allows for one radio program to be broadcast in three coverage areas or three radio programs in one coverage area.

The agreement also states that media service providers can obtain a temporary radio license in the same coverage area no more than twice in per year.

Rohtla pointed out, that temporary licenses are often used by media providers which own several radio stations in order to increase advertising sales. Duo Media owns the stations Kuku, Elmar, MyHits, Narodnoe, DFK and Radio Duo.

Rohtla added that, in the case of temporary radio licenses, care must be taken to ensure that such activities do not distort competition in the radio market as a whole. That is, holding temporary licenses does not provide an unfair market advantage over providers who have permanent ones.

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