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The regulatory
framework
2010 was characterized by legislative
intervention concerning the regulation of
the broadcasting industry, as detailed
below.
Lgs. Decree no. 44 of 15 March 2010,
implementing directive 2007/65/EC
relating to the coordination of
determined legislative, regulatory and
administrative provisions of Member
States concerning the exercise of
television activities (audio-visual media
service directive)
On 30 March 2010, Lgs. Decree no.
44/2010, implementing Directive
2007/65 (audio-visual media service
directive) entered into force. Its intent
was to adapt European broadcasting
regulations to the technological
progress and changes underway on the
audio-visual market. The regulation of
the public and private broadcasting
system in Italy over the past five years
has been dictated by the Consolidated
Law of television and radio
broadcasting services, Lgs. decree no.
177 of 31 July 2005, the original
version of which acknowledged the
European Directive known as "television
without frontiers". With the "audiovisual
media services" Directive
amending the "television without
frontiers" Directive, the idea was to
harmonize the broadcasting sector at
European level, adapting it to
technological development
(characterized by the convergence
between telecommunications, media
and information technology) and market
development, also taking into account
the innovations introduced by the
European directives on electronic
communications. The main innovations
introduced by the order in the
Consolidated Law, renamed
Consolidated Law on Audio-visual and
Radio Media Services (hereinafter
TUSMAR), are listed below:
• the performance of linear and nonlinear
media services: the notion of
"audio-visual media service" is
introduced in paragraph 1 of the
Consolidated Law. It comprises linear
services (supplied, regardless of the
broadcasting method, for the
simultaneous viewing of programmes
on the basis of a programming
schedule) and non-linear services
(supplied, regardless of the
broadcasting method, for the viewing
of programmes chosen at any given
time by the user from a catalogue of
programmes organized by the media
service supplier). The notion of audiovisual
media service does not include
services performed during the exercise
of non-economic activities, such as
private websites and services
consisting in the supply or distribution
of audio-visual content generated by
private users for the purposes of
sharing or exchange within the scope
of common interests. The traditional
three-way division between content
supplier / network operator / supplier
of associated interactive services or
conditioned access services contained
in the Consolidated Law was replaced
by service operator / media service
supplier / supplier of associated
interactive services or conditioned
access services. In the Consolidated
Law, as amended by the Romani
Decree, the editorial responsibility of
the media service supplier (the
physical or juridical person that
chooses the audio-visual content of
the audio-visual media service) is
defined, in article 2, paragraph 1,
letter h), as "the exercise of effective
control over the selection of
programmes, including data
programmes, and their organisation
into a chronological programming
schedule, in the case of television or
radio broadcasts, or in a catalogue,
in the case of audio-visual media
services on demand". Article 2,
paragraph 1, letter b) of the TUSMAR
establishes the exclusion from the
definition of "media service supplier"
of physical or juridical persons who
only broadcast programmes for which
third parties are editorially
responsible;
• qualifying titles: the new system
envisages the ministerial
authorisation, issued in accordance
with article 25 of the Code on
electronic communications (Legislative
Decree no. 259 of 1 August 2003),
for the network operator activity
(article 15 of the Consolidated Law),
of associated interactive service and
conditioned access supplier, including
pay per view, on digital terrestrial
frequencies, via cable or satellite
(article 31 of the TUSMAR). Likewise,
the Ministry issues authorisation for
the supply of audio-visual content and
data destined for digital broadcasting
on terrestrial frequencies (article 16),
for the performance of linear or radio
audio-visual media services via cable
(article 21). Authorisation for the
performance of linear or radio audiovisual
media services via other
electronic media is, on the other
hand, issued by the Authority for
Guaranteeing Communications on
the basis of its regulations, to be
adopted by 30 June 2010 (article 21,
paragraph 1-bis). Furthermore, the
authorisation to perform audio-visual
or radio media services via satellite
(article 20) and the authorisation to
supply audio-visual media service on
demand (article 22-bis) is issued by
the AGCOM;
• audio-visual commercial
communication: the decree
introduces, in addition to the
traditional definition of television
advertising and television sales, a
broader definition of audio-visual
commercial communication,
including sponsorships, television
sales and the inclusion of products. In
relation to the limits posed to the
overcrowding of advertisements,
article 12 of the Romani Decree
dictates new regulations, replacing
article 38 of the Consolidated Law: it
is established that the broadcasting of
publicity messages by RAI cannot
exceed four percent of the weekly
programming time schedule and 12
percent of every hour (paragraph 1);
• secondary rights and European
audio-visual production: in the system
previously in force, in accordance
with article 44 paragraph 4 of the
Consolidated Law, independent
producers had to be assigned shares
of residual rights deriving from the
time limitation of the television user
rights acquired by broadcasting
operators. In the new article 44 of the
Consolidated Law, the notion of
residual right is replaced with that of
secondary right, which the media
service supplier has to acknowledge
to the independent producer, on the
basis of the rules of the Authority
establishing the criteria for the time
limits to the use of secondary right by
the suppliers of services, in proportion
and connected to financial
participation in the development and
creation of the work by independent
producers. The instructions regarding
the so-called "issuance shares" and
"investment shares" remain
unchanged. Consequently the general
broadcasting public service
concession holder is required to
reserve at least 20% of broadcasting
time to European programmes
produced within the past five years
and to destine at least 15% of the
comprehensive annual revenues from
television licence subscriptions and
the pertinent advertising revenues, net
of income from agreements with public administration and the sale of
goods and services to European
programmed made by independent
producers;
• protection of on-line intellectual
property rights: article 6 of the
legislative decree (which adds article
32-bis to the Consolidated Law)
dictates a specific rule in defence of
intellectual property. The suppliers of
audio-visual media services must
ensure the complete observance of
the principles and rights envisaged by
the law on copyright (law no. 633/41
and subsequent amendments),
regardless of the platform used to
broadcast audio-visual content, and
must operate in complete observance
of copyright and other pertinent
rights. In the light of the definition of
audio-visual media services, the
extension of the obligations contained
in article 6 also to all continuous
broadcasting services offered in live
streaming, television broadcasts via
webcasting and near video on
demand carried through websites,
including the obligation to abstain
from broadcasting programmes
covered by third-party property rights;
• events of particular importance and
news flashes: articles 7 and 8 of the
Romani Decree introduce two new
articles into the TUSMAR, 32-ter and
32-quarter, on the basis of which it is
established that the AGCOM must
compile, following resolution, a list of
events considered as being of
particular importance, for which it is
necessary to ensure free
broadcasting. The AGCOM is also
assigned the task of regulating the
broadcasting by a network of events
of outstanding public interest which
have already been broadcast
exclusively by another television
network;
• defence of minors: article 9 of the
acknowledging legislative decree
contains some important operational
indications aimed at increasing the
level of defence of minors. Special
measures are envisaged to prevent
minors from watching programmes
characterised by the presence of
harmful content.
Further regulatory provisions
Broadcasting news flashes on events of
outstanding public interest
With resolution 667/10/CONS, the
Authority for the Guarantee of
Communications approved the Rules of
broadcasting news flashes of events of
outstanding public interest in
accordance with article 32-quater of the
Consolidated Law on broadcasting. The
above-mentioned provision
acknowledges all television
broadcasters, including those using the
analogue platform, regardless of the
electronic communication network used,
whether or not broadcasting is free or
encoded, and the territorial context, the
right to use news flashes: the use of
pictures of the event for news flashes is
allowed within the time limit of three
minutes for each event, exclusively within
the scope of the news programmes and
also in later editions, from one hour
after the termination of the event until
48 hours from said termination.
Political and institutional pluralism in
television news programmes
With resolution 243/10/CSP, the
AGCOM drew up the criteria for the
regulation of the observance of political
and institutional pluralism in television
news programmes broadcast by the
national television networks. In order to
guarantee maximum awareness and
transparency of the Authority's
assessments, the provision indicates the
methods and the frequency of the monitoring of the news programmes
broadcast during the entire
programming schedule, with reference
to non-election or referendum periods
and during election campaigns.
Performance of linear and non-linear
services
With resolution 606/10/CONS, the
AGCOM approved the Regulations
concerning the performance of linear
broadcasting services on other electronic
communication media, in accordance
with article 21, paragraph 1-bis of the
Consolidated Law on Broadcasting. It
also established that the suppliers of
broadcasting services on terrestrial,
satellite or cable platforms in possession
of the relative valid qualifying title are
allowed to simultaneously rebroadcast
the complete programming on other
electronic communication media, free of
charge following the issue of notice to
the Authority and to the Ministry, also
including the necessary technical data,
observing the broadcasting rights
acquired. Resolution 607/10/CONS, on
the other hand, approved the
regulations governing the supply of
broadcasting services on demand, in
accordance with article 22-bis of the
Consolidated Law on Broadcasting.
Assignment of frequencies
Resolution 497/10/CONS published the
procedures for the assignment of the
television frequencies available for DTT
systems, along with measures to
guarantee conditions of effective
competition between operators.
Plan for automatic channel numbering
AGCOM Resolution 366/10/CONS
approved the plan for the automatic
numbering of free and encoded DTT
channels, stating the methods for
assignment of the numbers to the audiovisual
media service suppliers authorised
to broadcast audio-visual content using
the digital terrestrial technique.
