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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.