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The regulatory framework
Financial year 2009 was characterized
by legislative intervention concerning the
regulation of the broadcasting industry,
as detailed below.
Code on the matter of representing
judicial events in broadcasts
The public and private broadcasters at
national and local level and the
suppliers of radio and television content
who have signed code or adhered to
associations which have signed it, the
National Order of Journalists and the
Italian National Press Federation
adopted on 21 May 2009 the code of
self-regulation on the matter of
representing judicial events in
broadcasts, undertaking to ensure that:
the differences between documentation
and portrayal of news and comments,
between persons subject to
investigation, charge and sentence,
between public prosecutor and judge,
between prosecution and defence,
between defined and undefined
character of the provisions and
decisions in the evolution of the phases
and degrees of proceedings and
judgements are clear; to disseminate
information which, assuming that those
subject to investigation and charge are
innocent until proven guilty, satisfies the
public demand for immediate
knowledge of important social facts
such as the perpetration of serious
crimes; to adopt communicatively
expressive and technical methods which
offer viewers an adequate
understanding of the event, through the
portrayal and explanation of the various
positions of the parties implicated,
taking into due consideration the
informative and explanatory effect of the
television media which, while amplifying.the dialectics between those involved in
the case, may cause a risk of altering
the perception of the facts; to respect
the principle of cross-examination of the
sides, ensuring the presence and equal
opportunity of both sides in the dialectic
confrontation.
The promotion of distribution and
production of European programmes
In compliance with Articles 6 and 44
of the Consolidated Broadcasting Law
(legislative decree 177/2005),
television broadcasters and suppliers
encourage the development and
distribution of European audio-visual
products and reserve most of their
national broadcasting time, excluding
that allocated to sport, TV quizzes,
news, advertising, Telextex services,
debates and television sales, to such
European products. With resolution
no. 66/09/CONS on the regulation of
programming and investment
obligations in favour of European
programmes made by independent
producers, adopted in compliance with
articles 6 and 44 of legislative decree
no. 177 of 31 July 2005, the
AGCOM emphasized Rai's duty to
allocate to European programmes at
least 15% of its comprehensive annual
revenues from licence fees relating to
broadcasting and advertising revenues
linked to it, net of income from
associations with the public authorities
and the sale of goods and services,
and the obligation to reserve, on all
networks and distribution platforms,
regardless of the encoding of the
broadcasts, to European programmes
produced in the last five years a
minimum of 20% of broadcasting
time, 10% for original Italian films
wherever they may be made.
AGCOM resolution no. 60/09/CSP, on
the approval of the Regulations
concerning the criteria for the attribution
of shares of residual rights deriving from
the time limits applicable to television
rights acquired by broadcasters,
adopted in compliance with article 44,
paragraph 4 of legislative decree no.
177 of 31 July 2005, which abrogates
the previous regulations, established
restrictive criteria to regulate relations
between independent producers and
communications operators, and also
envisages the application of sanctions in
the event of failure to observe the code
of conduct to be implemented by
broadcasting operators within six
months of the entry into force of such
Regulations.
After clarifying the fact that "residual
rights" are the television rights
remaining after the initial period of use
by broadcasters � established as three
years for documentaries, seven for
cartoons and five for all other types of
programme � the Authority establishes
that any rights remaining unused after
two years from the delivery of the
product will return to the independent
producer and the residual rights will be
assigned by the broadcaster to the
independent producers in proportion to
the participation in the phases of
development and creation of the
audiovisual products.
Furthermore, the Regulations state that
all rights must be quantified separately
and that negotiations with the
independent producers must be
transparent and be completed in
reasonable times, and that, within six
months of entry into force of the present
regulations, each broadcaster must
draw up a code of conduct aimed at
regulating relations with producers, in
order to guarantee equal and
transparent negotiations, separate for
each individual entitlement.
Digital Terrestrial Television
Article 8-novies of law no. 101 of 6
June 2008, converting law decree no.
59 of 8 April 2008, containing urgent
instructions for the implementation of
EU obligations and the execution of the
rulings of the European Community
Court of Justice, in view of the
censorship of the European Commission
with regard to the management of
broadcasting frequencies, with the
motivated opinion issued within the
sphere of breach procedure no.
2005/5086, amended article 15 of
legislative decree no. 117 of 31 July
2005 (regulating the supply of
broadcasting content on terrestrial
frequencies).
The main elements of the new law are:
a) the envisaging of the general
authorisation for the activity of
network operator, also during the
switchover from analogue to digital
terrestrial technology;
b) the definition of a calendar for the
switch-off of analogue television by
territorial areas, to gradually digitalise
the television networks, to be
completed by the end of 2012;
c) the definition, by the AGCOM, of the
procedures for assignment of rights to
use the frequencies for digital
television networks.
The above to be carried out in
observance of the laws in force, in
accordance with which the AGCOM is
the Authority appointed to draw up the
National plan for the assignment of
broadcasting frequencies and to
approve the procedures for assignment
of the relative rights to use them. Said
Plan is to be drawn up on the basis of
the National plan for the distribution of
frequencies, prepared by the Ministry of
Economic Development.
With the Decree of the Ministry of
Economic Development of 10
September 2008, the national calendar
for the final passage to the broadcasting
of DTT was defined, indicating the
territorial areas implicated and the
respective deadlines. With the Decree of
the Ministry of Economic Development
of 13 November 2008, the new
National plan for the distribution of
frequencies was also approved,
reserving the VHF-III, UHF-IV and UHF-V
bands for television broadcasting. This
also allowed the assignment to the
broadcaster Europa 7, implementing the
order of the Government Council, the
frequency relating to channel 8 of the
III-VHF band for its operation in
analogue and digital modes.
The current rules governing the use of
DTT already contain certain provisions
aimed at accessing the DTT market
through the regulatory model which is
based on three separate systems of
authorisation for operation for the DTT
broadcasting sector (content provider,
service provider, network operator), the
limit of 20% for DTT programmes that
can be distributed by any one content
provider at national level, the reserve,
until the nationwide switch-off, of 40%
of the broadcasting capacity of the DTT
networks used by the existing operators
through the so-called frequency trading,
in favour of content providers
independent from the network
operators.
On the basis of this system, a company
does not have to be "vertically"
integrated to operate on the DTT
market, as proven by the entry into the
sector by companies which also operate
as network operators.
According to the existing regulatory
system, the rights to use frequencies are
assigned to the network operators who
are, usually, the owners of broadcasting
sites and infrastructures, although the
law allows them to rent these
infrastructures from other companies
(known as tower companies). The latter activity requires no authorisation as it
does not implicate the provision of
electronic communication services.
In the case of vertically integrated
national operators (authorised both to
manage the network and to provide
programmes), the law states that the
service provider and network operator
must be structurally separate, i.e.:
managed by separate companies, albeit
belonging to the same corporate group.
This separation is envisaged for DTT
only and does not regard other
broadcasting platforms such as satellite
and cable.
In this context it its necessary to highlight
that the system in force since 2001
envisages, for all analogue operators
who have invested in the digitalisation
process, the right to convert each
analogue network to digital on a "oneto-
one" basis (with one analogue
network corresponding to one digital
network). This right has been a
fundamental factor in encouraging the
companies in operation to invest in a
new and consequently risk technology,
and has been the factor that has drawn
the digitalisation process of the Italian
television networks.
Criteria for the complete conversion
of the terrestrial television networks
to digital
The AGCOM intends to introduce a
strict limit to the number of television
networks that can be obtained by
existing operators in order to ensure the
same development opportunities to all
potential participants in the competition
and to make the equality of treatment
effective, respecting the principle of
proportionality and non-discrimination.
Digital terrestrial radio broadcasts
On 26 November 2009, in view of the
National Plan for the distribution of the
frequencies approved with decree of the
Ministry of Economic Development of
13 November 2008, the AGCOM,
taking into account the technological
innovations that have been made with
regard to the standard of digital
terrestrial radio, adopted, in compliance
with article 24, paragraph 1 of law no.
112 of 3 May 2004, the new
regulations for the launch of terrestrial
radio broadcasts using digital
technology.
Further regulatory provisions
On 31 January 2009, resolution no.
666/08/CONS was published in the
Official Gazette. With this resolution the
Authority approved new Regulations for
organizing and keeping the Register of
communications operators (R.O.C. -
Registro degli operatori di
comunicazione).
On 14 May 2009, the guidelines for the
sale of sports broadcasting rights in
accordance with article 6, paragraph 6
of legislative decree no. 9 of 9 January
2008, on the "regulation of ownership
and sale of sports broadcasting rights
and relative distribution of resources", in
the final version transmitted by the Lega
Nazionale Professionisti on 28 April
2009. With resolution no.
405/09/CONS, the AGCOM adopted
the regulations for the exercise of
audiovisual reporting rights and with
resolution no. 406/09/CONS, those to
exercise radio reporting rights, in view of
legislative decree no. 9 of 9 January
2008, on the "regulation of ownership
and sale of sports broadcasting rights
and relative distribution of resources".