Art. 1. The Autorità per le Garanzie nelle Comunicazioni
(Authority for equal protection of communications)
1. The Authority for equal protection
of communications is hereby instituted, hereinafter called "the Authority",
which will be fully autonomous and independent in its judgements and
evaluations.
2. Without prejudice to the powers as
set out in the legislative decree - of December 1st 1993, n. 487, enacted,
with modification, as law of January 29th 1994, n. 71 the Ministry of
Posts and Telecommunications is renamed "the Ministry of Communications".
3. The Authority comprises the following
organs: the president, the commission for infrastructures and networks,
the commission for services and products and the council. Each commission
is a collective body made up of the president and four commissioners.
The council comprises the president and all the commissioners. The Senate
of the Republic and the Chamber of Deputies elect four commissioners
each of whom will be subsequently appointed by a decree of the President
of the Republic. Each senator and each deputy will express his vote
by nominating one commissioner for the commission of infrastructures
and networks and one for the commission for services and products. In
case of the death, resignation or incapacity of a commissioner, the
competent Chamber will elect another commissioner who shall remain in
office until the lapse of the ordinary terms of office of the members
of the Authority. The prohibition on confirmation set out in article
2, clause 8, of law 14 November 1995 n. 481 is waived when a substitute
commissioner will serve for less than three years. The president of
the Authority is appointed by a decree of the President of the Republic
on the proposal of the President of the Council of Ministers in agreement
with the Ministry of Communications. The nomination of the president
of the Authority shall be submitted to the competent parliamentary commissions
for approval pursuant to article 2 of law November 14th 1995 n. 481.
4. The parliamentary commission for general
policy and superintendence of radio and television services shall ascertain
that the provisions contained in the articles 1 and 4 of the law April
14th 1975 n. 103 and law June 25th 1993 n.206, and article 1 of legislative
decree -October 23rd 1996 n. 545 enacted with modifications, as law
December 23rd 1996 n. 650 are observed.
5. The provisions as set out in article
2, clauses 8, 9, 10 and 11 of law November 14th n.481 shall apply to
the members of the Authority.
6. The responsibilities of the Authority
are as follows:
a) the commission for the infrastructures
and the networks will carry out the following functions:
1) express its views to the Ministry
of Communications on the national plan for the allocation of frequencies
which shall be approved by a specific decree of the Ministry of
Communications after consultation with the bodies indicated in
clause 3 of article 3 of law August 6th 1990, n. 223, indicating
the frequencies to be assigned for civil protection services,
in particular the voluntary organisations and the national Alpine
rescue corps;
2) draws up, with the assistance
of the organs of the Ministry of Communications and after consultation
with the public concessionaire and the national associations of
the owners of broadcasting stations or networks with respect to
the allocation of frequencies, the plans for the allocation of
frequencies, including those to be assigned to civil protection
services pursuant to article 11 of law February 24th 1992, n.
225, and in particular voluntary organisations and the National
Alpine Rescue Corps, and shall approve them, but excluding the
frequency bands used exclusively by the Ministry of Defence which
will make provision for all such relative assignments. As regards
the bands shared with the Ministry of Defence, the Authority will
make provision for their prior co-ordination with the ministry
in question.
3) defines, without prejudice to
the provisions set out in article 15 of law December 31st 1996,
n. 675, the measures for ensuring the security of the frequencies
and initiates actions by the organs of the Ministry of Communications
for the elimination of electromagnetic interference, including
modifications to plant on condition that such actions do not upset
the balance reached in the system of the frequencies as represented
by the allocation plans;
4) having heard the views of the
Ministry of Communications and in conformity with Community regulations,
sets down standards for decodifiers in order to promote the utilisation
of the service;
5) maintains a register of communications
operators on which the following shall be registered: the subjects,
pursuant to the present law, who receive concessions or authorisations
in accordance with the current regulations issued by the Authority
or by other competent administrations; concessionaire companies
for advertising to be broadcast over radio or television equipment
or to be publicised on daily newspapers or magazines, the publishers
of daily newspapers, magazines or journals and national press
agencies and telematic and telecommunications service providers
including electronic and digital publishers; in the register shall
also be recorded the infrastructures for broadcasting in the national
territory. The Authority will adopt specific regulations for the
organisation, registration and definition of the criteria to identify
subjects required to be registered other than those already registered
at the date on which the present law comes into force;
6) from the date on which the regulations
as set out in point 5) come into force, all the provisions regarding
the maintenance and organisation of the national press register
and the national register of radio and television companies as
set out in law August 5th 1981 n. 416, and successive modifications,
and in law August 6th 1990, n. 223, as well as the regulations
as set out in the decree of the President of the Republic April
27th 1982 n. 268, the decree of the President of the Republic
February 15th 1983 n. 49 and the decree of the President of the
Republic March 27th 1992 n. 255, are repealed. The acts on the
registers as set out in the present point and kept in the office
of the Commissioner for radio and television broadcasting are
transferred to the Authority for the purposes set out in point
5);
7) defines objectives and criteria
of openness, also with reference to maximum tariffs, for interconnection
and for access to telecommunications infrastructure on the basis
of non-discriminatory criteria;
8) regulate the relations between
operators and users of telecommunications infrastructures and
verifies that telecommunications infrastructure operators will
guarantee interconnection and infrastructure access to subjects
managing networks or offering telecommunications services; promote
technological agreements between operators in the sector in order
to avoid the proliferation of technical transmission plant throughout
the territory;
9) having heard the parties involved,
settles controversies on matters of interconnection and access
to telecommunications structures within ninety days from the notification
of the controversy;
10) periodically receives communications
from the telecommunications public service operators regarding
cases of interruption of service to users, and draws up guidelines,
if necessary for question of interruptions. The users affected
by these services can submit a claim to the Authority regarding
the interruption of the service for those cases envisaged by a
special regulation to be defined by this Authority;
11) identify, in accordance with
Community regulations, statute laws and regulations and in particular
with the provisions of article 5, clause 5, the objective and
subjective ambit of any obligations that may interest the universal
service and the arrangements for the determination and allocation
of the relative costs and to propose possible modifications to
them;
12) promotes interconnections between
national telecommunications systems and those of other countries;
13) determine, after having heard
the subjects involved who may advance requests for them, the criteria
for the definition of national network plans and telecommunication
services, based upon criteria of objectivity, openness, impartiality,
equity and celerity;
14) intervenes in controversies
between the body managing the telecommunications services and
private users;
15) superintends radio-frequency
ceilings compatible with human health and verifies that such ceilings,
and taking account of the combined effect of different electromagnetic
emissions as well, are not exceeded. The respect of these indicators
is a compulsory condition for the issue of licences or concessions
for the installation of equipment with electromagnetic emissions.
The Ministry of the Environment, in agreement with the Ministry
of Health and the Ministry of Communications, and having heard
the views of the Superior Institute of Public Heath and the National
Agency for the protection of the environment (ANPA), shall determine
within sixty days, the ceilings to which the present point refers,
taking due account of Community regulations;
b) the commission
for services and products:
1) ascertains that services and
products supplied by each operator to whom concessions or authorisations
are issued in conformity to the regulations in force are in line
with all legal requirements by promoting the integration of technology
and the offer of telecommunications services;
2) issues directives on the general
levels of quality of the services and on the adoption, by each
operator, of a service charter in which the minimum standards
for each area of activity are set out;
3) supervises arrangements for the
distribution of services and products, including the relative
advertising in whatever manner it may be publicised, without prejudice
to the responsibilities assigned by law to other authorities,
and may issue regulations, in conformity to European regulations,
for the governance of relations between fixed and mobile service
operators carrying out the resale of telecommunications activities;
4) ensures the respect of the minimum
periods that must elapse before the use of audio-visual works
by the various services from the publication date of each work,
in conformity to present regulations and taking account of alternative
agreements, if any, which may be reached between producers;
5) as concerns all forms of advertising
and teleselling, issues regulations for the implementation of
statutory provisions and regulates the organised interaction between
suppliers of a product or service or a network operator and the
end-user, involving the acquisition of material from the end user
and/ or the use of information on end users.
6) ascertains that the regulations
for the safeguarding of minors in the radio-television broadcasting
sector are observed, taking account of self-regulation codes that
may be in place concerning the relations between minors and television,
as also the guidelines provided by the parliamentary commission
for general policy and superintendence on radio and television
services;
7) superintends that the safeguards
for linguistic minorities as recognised in the ambit of mass communications
are observed;
8) ascertains that regulations on
the right of rectification in the radio-television sector are
respected;
9) guarantees the application of
the present provisions governing propaganda, advertising and political
information as well as the observance of the regulations in the
field of the equal treatment and parity in the access to publications
and to the transmission of information and electoral propaganda
and issues the relatives regulations for their implementation;
10) proposes arrangements to the
Ministry of Communications to be introduced for the agreement
on the concession of the public radio-television service and verifies
the implementation of the obligations envisaged in the foregoing
agreement and in all the other agreements that may be stipulated
between the concessionaire and the public and administrative service.
The parliamentary commission for general policy and the superintendence
of radio-television services is obliged to express its opinion
on the arrangements for the agreement and on the service contract
with the public service concessionaire; in addition, it will supervise
the implementation of the foregoing public service;
11) arranges for the survey on audience
ratings and the diffusion of the various means of communication;
verifies that surveys on ratings and the diffusion of the various
means of communication conducted by other subjects are conducted
correctly by carrying out checks on congruity of the methodologies
employed and audits on the veracity of the published data, as
well as upon the monitoring of television transmissions and on
the conduct of the companies which undertake the enquiries; the
manipulation of data by the use of methodologies known to be incorrect
or through the deliberate use of false data is punished in conformity
to article 476, first clause, of the penal code; where the survey
on audience ratings does not meet universal sampling criteria
with respect to the population or the means involved, the Authority
can arrange that the necessary surveys be carried out;
12) ascertains that publication
and diffusion of the findings on means of mass communication be
conducted by respecting the criteria contained in the regulations
that it itself will issue;
13) monitors radio-television transmissions;
14) applies the sanctions provided
for by article 31 of law August 6th 1990, n. 223;
15) promotes the integration of
technologies and the offer of communication services;
c) the council:
1) advises the government on the
appropriateness of measures, including legislation, on matters
of technological innovation and developments both nationally and
internationally within the sector of communications;
2) guarantees the application of
the legislative provisions on access to communication means and
infrastructure, and also through the drawing up of specific regulations;
3) promotes research and studies
on matters of technological innovation and development in the
communications and multimedia services sector, and in so doing
may avail itself of the assistance of the Superior Institute of
Posts and Telecommunications, which hereby is renamed "Superior
Institute of Communications and Information Technology" pursuant
to article 12, clause 1, letter b, of the legislative decree -December
1st 1993, n. 487, enacted into law with modifications, by law
January 29th 1994, n. 71;
4) adopts the regulations as set
out in clause 9 and the measures indicated under clauses 11 and
12;
5) adopts the provisions implementing
the regulations as set out in article 1, clause 2 of legislative-law
October 23rd 1996, n. 545, enacted with modifications as law December
23rd 1996, n. 650, on the criteria and arrangements for the issue
of licences and authorisations and for the fixing of the relative
contributions as well as the regulations on the criteria and arrangements
for the issue of concessions and authorisations in the field of
radio and television activities and for the fixing of the relative
licence fees and contributions;
6) proposes the regulations to govern
the issue of concessions and authorisations in the field of radio
and television broadcasting to the Ministry of Communications
on the basis of regulations approved by the council itself;
7) verifies the financial statements
and the data regarding the activities and assets of authorised
subjects or concessionaires of radio and television services in
conformity to regulatory arrangements;
8) ascertains the actual nature
of dominant positions in the radio and television sector and forbidden
by virtue of the present law and adopts the consequent measures;
9) carries out the functions and
tasks assigned to the Commissioner for television and radio broadcasting
and publishing, excluding the functions previously given the Commissioner
pursuant to clause 1 of article 20 of law October 10th 1990 n.
287, which is repealed;
10) ascertains the non-observance
by concessionaire companies of the radio and television services,
of the guidelines laid down by the parliamentary commission for
general policy and superintendence of radio and television services
in conformity to articles 1 and 4 of law April 14th 1975 n. 103,
and requires that the concessionaire takes the disciplinary action
provided for in the contract of employment against the responsible
managers;
11) expresses, within thirty days
from the receipt of the relative documentation, its opinion as
required by law, on the measures taken with regard to operators
in the communications sector by the Authority instituted to guarantee
competitiveness and fair market conditions following the application
of articles 2, 3, 4, and 6 of law October 10th 1990, n. 287; said
period having elapsed the measures will be implemented in the
absence of the foregoing opinion;
12) within June 30th of every year
it shall furnish the President of the Council of Ministers for
submission to Parliament with a report on the activities undertaken
by the Authority and on its programmes of work. The report shall
contain, among other matters, data and reports concerning the
sectors for which it is responsible, and in particular on technological
development, resources, revenue, capital, potential and actual
diffusion, ratings and audience data, the plurality of opinions
in the information system, cross holdings in radio, television,
the national press, periodical magazines and newspapers and other
national and community-wide means of communication;
13) authorises the transfer of property
of the companies which carry out the radio and television activities
provided by law;
14) exercises all those other functions
and powers provided by law November 14th 1995, n. 481, as well
as all those other functions of the Authority not expressly attributed
to the commission for the infrastructures and networks and the
commission for services and products.
7. The tasks indicated
under clause 6 may be devolved on the basis of an organisational regulation
as set out in clause 9.
8. Separate accounting and administrative
procedures which the companies operating in the sector of the concessions
or authorisations must introduce shall clearly indicate the payments
made for access and interconnection to telecommunications infrastructures,
the costs incurred for the universal service and those for the installation
and management of the infrastructures distinct from those referring
to service supply and must enable the ascertainment of the non-existence
of overlapping subsidies or discriminatory practices. The separation
of the accounts must be implemented in the terms provided by the regulations
set out under article 1, clause 2 of legislative- decree October 23rd
1996 n. 545, enacted, with modifications as law December 23rd 1996,
n. 650. Companies operating in the sector of telecommunications shall
publish, within two months from the approval of the financial statements,
a document summarising the data contained in the financial statements,
highlighting the elements referred to in the present clause.
9. The Authority, within ninety days
from installation in office, shall adopt regulations for its organisation
and functioning, for the drawing up of the financial statements, reports
and the management of the expenditure, and in derogation from the provisions
for the general accountancy methods of the state, as well as the for
legal and economic employment conditions of personnel, on the basis
of the regulations contained in law November 14th 1995 n. 481, and adhere
to the arrangements for the carrying out of selection exams and recruitment
procedure for the employment of personnel on the basis of fixed term
contracts pursuant to clause 18. The Authority shall arrange for the
autonomous management of the expenditure for its own functioning within
the limits of the funds appropriated in the state budget and recorded
in a specific item of the expenditure estimates of the Ministry of the
treasury. The Authority implements the regulations on the operating
and behavioural arrangements of the personal and the managers and the
members of the Authority through the issue of a document called the
Ethical Code of the Authority for equal protection in communications.
All the deliberations and the regulations indicated in the present clause
shall be adopted by a favourable majority vote of its members.
10. Any subject, bearer of private or
public interests, or bearer of widespread interests organised in associations
or committees, that could be damaged by the measures to by taken by
the Authority, has the right to denounce violations of law by the Authority
and to participate in the proceedings.
11. The Authority disciplines shall institute
its own arrangements to regulate out of court settlements of controversies
that may arise between users or categories of users and an authorised
subject or the reception of licences or between authorised subjects
or recipients of licences. For these controversies, identified by regulations
introduced by the Authority, no recourse can be made to a court of law
without there first having been made a compulsory attempt at settlement
which shall be concluded within thirty days from the day on which the
petition was put to the Authority. For this purpose, the terms for appealing
to courts of law are suspended until the term for the conclusion of
the arbitration proceedings elapses.
12. The measures taken by the Authority
shall define the procedure for the minimum criteria adopted by the institutions
of the European Union for the regulation of non-juridical procedures
for the safeguard of the consumers and users. The criteria identified
by the Authority in the definition of the foregoing procedures constitute
the principles for the definition of the controversies which parties
to the case agree to submit to arbitration.
13. The Authority avails itself of the
organs of the Ministry of Communications and of the organs of the Ministry
of the Interior as regards the safety and the regularity of the telecommunications
services as well as of the organs and institutions of which the Commissioner
for the protection of broadcasting and publishing can at present avail
itself, on the basis of the present law. In view of the need for the
decentralisation of its presence in the territory in order to ensure
the necessary functions of government, fair-trading and supervision
in the field of communication, regional committees for communications
shall be functional organs of the Authority and which can be set up
through regional laws within six months from the installation of the
Authority and to which committees the present functions carried out
by the regional radio and television committees will be attributed.
The Authority in agreement with the permanent conference for the relations
between state, regions and the autonomous provinces of Trento and Bolzano,
shall draw up general guidelines on the requisites which the members
of such committees must satisfy, criteria of incompatibility of the
members and the organisational and financial arrangements of the committees.
Within the foregoing period and in case of their non-institution, the
functions of the regional committees for communications shall be performed
by the present radio and television committees. The Authority in agreement
with the permanent conference for the relations between the state, the
regions and the autonomous provinces of Trento and Bolzano will adopt
regulations in order to define the subject matter for which it is competent
which can be delegated to the regional committees for communications.
In the performance of its functions the Authority can ask for the consultancy
of subjects or organisms of recognised independence and competence.
Communications directed to the Authority are exempt from stamp duty.
The Authority will co-ordinate with the competent organs of the Ministries
of Defence and the Interior as regards matters of common interest.
14. The recruitment of permanent staff
for regional committees for communications shall principally take place
on the basis of the procedures for mobility provided for by article
4, clause 2 of the legislative decree May 12th 1995 n. 273 as regards
the permanent staff of the Ministry of Posts and Telecommunications
who, at the date on which the present law comes into force, will belong
to the relative territorial inspectorate. A similar priority has been
recognised with regard to personnel with executive functions of Ente
poste Italiana (Italian postal authority) located within the territorial
inspectorates themselves, and within the limits of the personnel allocated
to the Ministry, as established by the legislative decree October 23rd
1996, n. 540, whose provisions were contained in law 23 December 1996,
n. 650.
15. With the decree of the Ministry of
the Interior in agreement with the Ministry of Communications and the
Ministry of the Treasury, the structures, personnel and means of which
the police telecommunications service can avail itself have been defined,
within the limits of the resources in terms of personal allocated to
the Ministry of the Interior and the appropriations included in the
estimates of the latter ministry under the heading of public security.
With the decree of the Ministry of Finance, in agreement with the Ministry
of the Interior, the Ministry of Communications and the Ministry of
the Treasury, the structures, personnel and the means of the Guardia
di Finanza (excise police) are defined as regards its institutional
duties in the specific sector of radio and television broadcasting and
publishing.
16. The Authority will also collaborate
with the Authorities and competent administrations of other states in
order to facilitate their respective functions through the exchange
of information and ideas.
17. A permanent staff list for the Authority
is hereby instituted within the limit of two hundred and sixty persons.
The final definition of the staff list will be made through a decree
of the President of the Council of Ministers at the request of the Ministry
of Communications and in agreement with the Ministries of the Treasury
and the Public Administration and taking account of the Authority’ own
favourable opinion formulated according to a survey of the task to be
undertaken and also upon the basis for recourse to mobility procedures
as provided for by the present law and in conformity to the ordinary
budgetary appropriations made for the functioning of the Authority.
18. The Authority, in addition to permanent
staff, may directly recruit personnel with fixed time contracts subject
to the provision of private law for a number not in excess of sixty
in accordance with the arrangements set out in article 2, clause 30,
of law 14 November 1995 n. 481.
19. The Authority can, for justified
reasons make use of employers of the state or other public bodies seconded,
in the forms indicated by the respective regulatory systems, or on leave
of absence pursuant to article 13 of the decree of the President of
the Republic July 11th 1980 n. 382 and later modifications up to an
overall number of 30 persons and of which no more than 20% with managerial
qualifications, leaving a corresponding number of permanent places vacant.
The staff to whom the present clause refers shall be paid the indemnity
provided for by article 4 of the decree of the President of the Republic
of July 10th 1991 n.231.
20. On the occasion of the first implementation
of the present law the Authority may see to the recruitment of permanent
staff to an extent of 50% of the posts indicated in the staffing list
through a specific selection in proportion to the functions and responsibilities
transferred to the Authority from the employed personnel of the Ministry
of Communications and the Office of the Commissioner for radio and television
broadcasting on condition that they are in possession of the responsibilities
and professional and requisites for the performance of the single functions.
21. The Authority will be subject to
the provisions set out in article 2 of law November 1995 n . 481 n.
481, which are not derogated from by the provisions of the present law.
The provisions set out in clause 9, as exclusively concerns derogations
from the provisions of the general public accounting, as well as clauses
16 and 19 of the present article are also applied to the other authorities
set up by law November 14th 1995 n. 481, without charges to the account
of the state.
22. With effect from the date on which
the regulations on organisation as foreseen by clause 9 of the present
article, clauses 1,2, 3, 4, 5, 12 and 13 of article56 of the law August
6th 1990 . 223 as also the second clause of article 8 of August 5th
1981 n. 416 come into force, the provisions under clauses 11 and 12
of the present article, clauses 7 and 8 of the article 6 of law August
6th 1990 . 223 are repealed. Similarly, every rule incompatible with
the provisions of the present law are repealed. From the date of its
installation the Authority will take over the administrative and juridical
proceedings and become the new reference body for active and passive
relations proceeding from the Commissioner for radio and television
broadcasting and publishing.
23. Within ninety days from the coming
into force of the present law, and at the proposal of the Ministry of
Communications, one or more regulations are issued, in conformity to
article 17, clause 2, of law August 23rd 1988, n. 400 in order to identify
the responsibilities transferred, co-ordinate the functions of the Authority
with those of the public administrations subject to the transfer of
responsibilities, and reorganise or suppress offices of the said administration
or revise the staff lists. As from the date on which the regulations
come into force the legislative provisions and regulations governing
the offices suppressed or re-organised and indicated in these regulations
are repealed.
24. At the Ministry of Communications
a permanent forum is set up for communications made up, not only of
representatives of the ministry but also of experts with recognised
expertise and by operators in the sector. The forum for communications
has research and proactive functions in the field of multimedia and
the new communications technology. The setting up of the forum will
not entail additional financial charges for the state.
25. Until the coming into force of the
Authority the Ministry of communications will perform the function given
to the Authority under the present law, excepting those attributed to
the Commissioner for the radio and television broadcasting and publishing,
and also as regards the purposes as set out in article 1- bis of the
legislative decree May 31st 1994 n. 332 enacted as law July 30the 1994
n. 474.
26. Recourses against the measures of
the Authority are the exclusive jurisdiction of the administrative tribunal.
The competence for judgements in the first instance is an exclusive
and non-transferable competence of Lazio administrative court.
27.The Lazio regional administrative
tribunal, before which a petition is laid for the suspension of the
Authority’s measures, can pass immediate judgement on the merits of
the case, with an abbreviated statement of the grounds for the decision.
The same provisions apply to the supreme administrative tribunal in
case of a request for the suspension of a sentence against which an
appeal has been lodged. All the terms for the court proceedings are
reduced by half and the operative part of the ruling will be published
within seven days from the hearing by filing of the sentence. In the
case of the concession of a provisional remedy, the hearing for the
discussion of the merits of the case must take place within sixty days.
In passing judgement the judge will also make a specific ruling on the
costs of the provisional remedy. The parties involved have the right
to appeal against sentences passed by the Lazio administrative tribunal
immediately after the publication of the operative ruling, subject to
the filing of a documented pleading, which must be deposited within
thirty days from the notification of the sentence. Also in the case
of immediate appeal article 33 of law December 6th 1971 n. 1034 is applied.
28. A national users’ council is hereby
set up at the Authority made up of experts designated by the associations
representing the various categories of users of telecommunications and
radio and television services with qualifications in the fields of law,
sociology, psychology, pedagogy, education and mass media and who have
distinguished themselves for having promoted the rights and dignity
of the person or of particular needs for the safeguarding of minors.
The national users’ council will express opinions and formulate proposals
to the Authority, Parliament and the government and to all the public
and private bodies with responsibilities in audio-visual matters or
whose activities in these sectors refer to all questions on the safeguarding
of the rights of and legitimate needs of citizens as active subjects
in the communicative process, and will also promote initiatives for
the discussion and debate on such themes. With its own regulations the
Authority provides the criteria for the designation, organisation and
functioning of the national users’ council and fix the number of its
members which shall not be more than eleven. The opinions and proposals
which concern the safeguarding of the citizens as set out in article
1, clause 1, of law December 31st 1996, n. 675 will be transmitted to
the Commissioner for the protection of personal data.
29.The subjects who in communications
requested by the Authority furnish false accounting data or facts on
the performance of their own activities are liable to the penalties
provided for by article 262 of the Civil Code.
30. Those subjects who do not submit
the documents, data and information to the Authority within the terms
and in the manner prescribed will be punished with an administrative
sanction of between one and two hundred million lire inflicted by the
Authority itself.
31. The subjects who do not comply with
the orders and invitations of the Authority, issued pursuant to the
present law, shall be punished with an administrative and pecuniary
sanction of between twenty and five hundred million lire. If the non-performance
concerns measures adopted regarding the violation of the provisions
on dominant positions, a pecuniary sanction of not less than 2 percent
and not more than 5 percent of the total sales recorded by each of the
persons concerned in the financial year that closed prior to the notification
of the charge will be applied. The administrative sanctions provided
for by the present law are imposed by the Authority itself.
32. If in the cases foreseen by clauses
29, 30 and 31, the violation in question is particularly serious or
repeated, the suspension of the activity of the holder of the concession
or licence or authorisation may be ordered or the revocation of the
concession, licence or authorisation.
Art. 2. The prohibition
of dominant positions
1. In the sectors of sound and television
broadcasting, also in the most developed forms, realised with any technical
multimedia publishing means whatsoever, including electronic means and
related sources of financing, any act or behaviour having as its objective
or as its effect the creation or the maintenance of a dominant position
by a single subject including controlled or affiliated subjects is forbidden.
2. Juridical acts, the operations of
concentration and the understandings which are in contrast with the
prohibitions established by the present article are unenforceable.
3. The subjects who operate in the sectors
indicated in clause 1 are obliged to communicate to the Authority and
to the Commissioner for competition and the free market, the agreements
and holdings to which they belong for purposes of carrying out their
respective activities.
4. The Authority superintends the trend
and the development of the markets regarding the sectors referred to
under clause 1, and will make public the findings of the enquiries conducted
in the form of specific annual reports.
5. The Authority through is own regulations,
adopted in conformity to the criteria of participation and openness
as established by law August 7 1990 n. 241, and successive modifications,
will regulate the measures as indicated in clause 7, the relative proceedings
and the arrangements for their communication. In particular that the
subjects concerned be duly notified when an enquiry is opened which
directly concerns them, that they have the opportunity to present their
own case in every stage of the enquiry and that the Authority be empowered
to require that the subjects concerned supply information and exhibit
documentation or third parties who may be in possession of such material,
which may be useful for the enquiry in course, must be guaranteed. The
Authority is expected to observe strict confidentiality on any news,
information and data furnished to it in accordance to the law on the
protection of persons and other subjects with regard to the handling
of personal data for the purpose of safeguarding the privacy of the
persons or companies involved.
6. On the basis of the national frequency
plan, a single subject, or subjects controlled by or affiliated to subjects
who in their turn control other holders of concessions on the basis
of criteria identified by the present law, can neither be issued concessions
or authorisations which allow them to cover more than 20 percent of
respectively analogue television or radio networks and digital television
or radio programmes, in the ambit of the national territory, transmitted
over terrestrial broadcasting frequencies. For purposes of permitting
the start up of markets in which the principles of pluralism and competition
are fully respected, with regard to digital television and radio programmes
the Authority may establish a transitory period in which the limits
set out in the present clause are not applied. The Authority can establish
for radio broadcasting in the national territory a percentage cover
greater than 20 percent in respect of the principles of pluralism and
competition. In the national plan for the allocation of frequencies,
drawn up for purposes of assigning plant locations, having consulted
the regions, for purposes of safeguarding linguistic minorities, and
in agreement with the regions of Valle d’Aosta and Friuli-Venezia Giulia
and the autonomous provinces of Trento and Bolzano, the Authority will
fix the number of networks and programmes to be broadcast in a national
or local ambit, taking due account of technological development and
of frequencies which will planned on the basis of the following criteria:
a) the common location of the equipment;
b) electrical-radio parameters established
in an uniform manner according to internationally recognised standards
taking account of an adequate transitory period for the re-ordering
of the present situation;
c) signals received without disturbance;
a reserve of frequencies for the diffusion
of the radio and television signals for digital technology and the integrated
use of satellites, cable and radio repeaters for terrestrial frequencies
for link ups with broadcasting plant;
d) a reserve of frequencies allocated
to sustain local television broadcasting amounting to one third of all
the broadcasting frequencies for every user group; although additional
resources can be assigned to local broadcasters after the drawing up
of the frequency plan. The television areas will usually coincide with
the territory of the region while the radio areas will coincide with
the territory of the province.
e) the equivalence, within the limits
of the technical compatibility, in terms of territorial coverage or
the balancing out, over all the broadcasting companies on both a local
and a national basis, of any insufficiency there may be of the frequencies
available on some user or service areas;
f) a reserve for the diffusion of broadcasting
channels for the diffusion of radio and televisions signals of foreign
stations on behalf of recognised linguistic minorities which transmit
in the languages used by the communities in question.
7. The Authority, in obedience to the
changes in the characteristics of markets and having regard to the criteria
indicated in clauses 1 and 8, without prejudice to the non-enforceability
as indicated in clause 2, will adopt the measures necessary for the
elimination or prevention of the creation of positions as set out in
clause 1 or which are in any way harmful to pluralism. If the existence
of such a position be discovered, an enquiry will be set up in the respect
of the right of controverting and/ or presenting counter evidence, at
whose conclusion steps will be taken such that these positions will
be rapidly removed. If the performance of acts or operations are ascertained
such as to bring about a situation forbidden under the clauses 1 and
2, their continuance will be forbidden and orders will be given for
the removal of their effects. Where the Authority considers that it
should implement measures which will affect the structure of the company
by requiring the divestiture of subsidiaries companies or company sectors,
it is required to fix an appropriate period within which the divestiture
shall take place in the order itself, and in any case this period shall
not be more than twelve months. In any case the measures regarding the
limits on the concentration to which the present article refers, are
to be applied on the occasion of the issue or renewal of concessions
and authorisations.
8. In the exercise of its own powers
the Authority can apply the following criteria:
a)the subjects to whom television concession
are issued in a national context including for the public service, authorisations
for the encrypted transmissions in a national context, or for both purposes,
may raise revenue for a share not superior to 30% of the resources of
the television sector in a national environment as regards encrypted
and terrestrial broadcasting. The revenues with respect to the foregoing
sentence are those deriving from the financing of the public service
net of the fees due to the treasury, and from national advertising
b) the subjects to whom radio concessions
have been issued for the national coverage of the territory can gather
the economic resources deriving from revenues obtained from publicity
and sponsorship for a quota non in excess of 30% of total resources
obtained in the radio sector. For the purposes of the initial development
of the sector, the Authority may fix a quota regarding the collection
of economic resources superior to that laid down in the present letter.
c) the subjects to whom authorisation
for television broadcasting via cable or via satellite has been issued
can collect revenues for no more than 30% of the total reserves as they
refer to the sector of national television broadcasters over cable or
satellite. In order to make possible the start up of the market and
also respect of the principles of pluralism and competition, the Authority
will determine a transitory period during which the foreseen limits
as provided for by the present letter are not applied. In the case of
programmes offered in a co-ordinated manner, the limits to which the
present letter refers are applied with reference to the single cable
or satellite television stations that make up the offer.
d) the subjects who have shareholdings
in companies operating in the sectors of radio-television broadcasting
and newspaper and magazine publishing are allowed to collect, as the
sum of the revenues from both sectors, revenues not in excess of 20
percent of the total amount of resources obtained from advertising,
the fees from teleselling, sponsorships, revenues from agreements with
public bodies, financing from the public service, revenues from pay-television
supply, sales and subscriptions of newspapers and magazines, from the
electronic publishing market for household consumption. The articles
governing newspaper and magazine publishing shall also be subject to
the provisions contained in law August 5th 1981 and later modifications.
Similarly the respect of the limits of each sector as provided for in
the foregoing law shall remain unchanged.
e) advertising concessionaires can gather
financial resources in the radio and television sectors to a degree
which shall not exceed the shares indicated under letters a), b), c)
and d). The advertising concessionaire, controlled by or affiliated
with a subject to whom a radio- television broadcasting concession or
authorisation has been issued, can collect advertising also for other
subjects to whom concessions have been given at a local level, within
the limits set down by the first sentence of the present letter and
upon condition that the said concessionaire company or subject collect
advertising an exclusive basis for the concessionaire or authorised
subject that controls it or who is related to it.
9. If only one of the quantitative limits
indicated in letters a), b) and e) of clause 8 is reached by virtue
of agreements or concentrations, the Authority will take due action,
but in total respect for the principle of being able to controvert the
Authority’s, pursuant to clause 7. If the subjects who in the performance
of their radio and television activities exceed - at the moment of in
which the law comes into force - the limits of the foregoing clause
8, through the spontaneous development of the company which does not
produce a dominant position or eliminate or compromise pluralism and
competition, the Authority, with a properly grounded action and at the
same time informing Parliament, will not take action as prescribed by
clause 7. For purposes of assessment, to be performed before the date
of the issue or renewal of the concessions or authorisations, the Authority
will invite the subjects concerned to demonstrate, within a pre-determined
term and on the basis of appropriate documentation, that they do not
have a dominant position as prohibited by law because the share reached
is less than the limits set by clause 8 or because, although the limits
as set out in clause 8 have been exceeded with regard to the reference
market, and identified by taking account, inter alia of the presence
or otherwise of technical, economic or juridical constraints on the
entry into the reference market, and the possibility of access to productive
factors, the size and number of the competition as also their structure,
this fact by itself does not amount to their having a dominant position.
In any case it will be the responsibility of the Authority to carry
out all the necessary enquiries in order to determine the exact nature
of the situation in question.
10. The limits set out in clause 8 do
not apply to subjects holding television or radio concessions for terrestrial
broadcasting frequencies or an authorisation to offer pay-tv services
via cable or satellite which in both cases is issued for the broadcasting
of a single national programme.
11. The overcoming of the quantitative
limits regarding the acquisition of economic resources as set out in
clause 8 must be verified over a congruent period of time, but in such
period may not exceed twelve months.
12. The Authority, on the occasion of
its report to Parliament on the characteristics of the reference markets,
must make a clear assessment of the appropriateness of the limits indicated
in the present article.
13. In order to favour the progressive
penetration of new transmission technology, the holders of non-encrypted
radio - television concessions for terrestrial broadcasting, are permitted,
prior to authorisation by the Authority, to make simultaneous use of
other means of transmission.
14. For purposes of defining a dominant
position, the subjects who collect publicity revenues for a share in
excess of 50% of the total sales of a broadcasting station, and the
producers and distributors of audio-visual productions who on an annual
basis supply products to an unencrypted television broadcaster for an
annual percentage in excess of 35% of daily transmission or 35% of peak
time viewing, as the Authority will define, are treated as being on
a par to a subject with a concession or authorisation. The time spend
for commercial advertising and teleselling is not to be included in
the quantification of the broadcast time.
15. For the purposes of the application
of clause 8 the advertising concessionaires who account for a share
in excess of 50% of the revenues from advertising , sponsorship and
teleselling fees in respect of each subject holding radio-television
concessions or authorisations, shall be attributed the entire sum of
the revenues of each such subject deriving from publicity, sponsorships,
and teleselling fees.
16. For purposes of identifying the dominant
positions forbidden by the present law, the shareholdings in the capital
acquired or owned through companies controlled directly or indirectly,
trust companies or third parties will be taken into consideration. Shareholdings
which come into the possession of another subject with respect to whoever
owned them previously as a consequence of or in connection with mergers,
hiving offs, company take-overs, spin-offs or similar which may regard
such subjects are considered acquired. When agreements exist among the
various shareholders, in whatever manner it may be concluded, as regards
concerted voting behaviour, or the management of the company, other
than the mere consultation among shareholders, each of the shareholders
is regarded, for purposes of the present law, as owner of the sum of
the shares or shareholdings held by the shareholders in agreement among
themselves or which such shareholders may control.
17. For purposes of the present law a
control is said to exist, even with reference to subjects other than
companies, in the cases set out in article 2359, clauses 1 and 2, of
the Civil Code.
18. Control is regarded as existing in
the form of a dominant influence, unless proved otherwise, whenever
one of the following situations exist:
a) there is a subject who, by himself
or according to agreed upon arrangements with others, has the possibility
of exercising a majority vote in the ordinary shareholders’ meeting
or to appoint or dismiss the majority of the directors;
b) there are relationships between
shareholders, which are financial in character or organisational or
economic such as to produce one of the following effects:
1) the transmission of profits or
losses;
2) the co-ordination of the management
of the company with that of other companies in order to pursue
a common objective;
3) the attribution of greater powers
with respect to those deriving from the ownership of shares or
an equity stake;
4) the attribution to subjects other
than those with legitimate interest on the basis of the shareholding
structure of the company of powers to chose directors and executives
of the companies;
5) the submission to a common direction,
which may appear from the characteristics of the composition of
the corporate organs or from other meaningful and significant
elements.
19. In derogation from
the provisions of the present article, with the exception of the provisions
established in clause 8, letter c) the concessionaire company for the
radio and television public service and the concessionaire company for
public telecommunications services can, jointly, participate in the
setting up of a single platform for the digital satellite or cable transmissions
and for encrypted analogue transmissions on terrestrial networks, through
joint venture agreements along with communication operators who hold
concessions, authorisations, licenses or who, at least, appear on the
register indicated in article 1, clause 6, letter a), number 5), of
the present law. The platform is available to whoever may request to
use it and has the appropriate qualifications, on the basis of principles
of openness, and non-discrimination. The Authority will oversee the
setting up and management of the platform by guaranteeing, through the
adoption of specific measures, and also in conformity to clauses 31
and 32 of article 1, the observance of the principles of openness, competition
and non discrimination between public and private subjects, as well
as between subjects participating in the agreement indicated in the
present clause and third parties who intend to distribute their own
transmissions through the platform in question.
20. For the purpose of the application
of articles 4, 7 and 8 of law August 7th 1990, n. 250, and article 7
of legislative decree August 27th 1993, n. 323, enacted with modifications,
into law October 27th 1993, n. 422, the term daily transmissions is
used to refer to those transmissions carried out in the timetable provided
for by the foregoing provisions, with a frequency non - inferior to
five days a week, or alternatively, one hundred and twenty days in a
six successive months.
Art. 3. Provisions
on television transmission
1. Those subjects with legitimate operations
in place on the date in which the present law comes in to force will
be allowed to continue with the broadcasting of unencrypted sound and
television signals at a national and local level until the new concessions
are issued, or up until the rejection of the application, and in any
case not after April 30th 1998.
2. The Authority shall approve the national
plan for the assignment of frequencies as set out in article 2, clause
6, within and not beyond January 31st 1998. On the basis of the national
plan of assignments of the frequencies the new private radio and television
concessions must be issued by and not beyond April 30th 1998. These
concessions, which have a duration of six years, can be issued with
respect to the conditions defined in regulations adopted by the Authorities
and taking account of the principles referred to in clause 3, to public
limited companies, limited partnerships (corpnerships), in limited liability
companies and co-operatives. The companies to which the present clause
refers must be Italian or of a member state of the European Union. The
control of companies by subjects with a citizenship or a nationality
of a non-member state of the European Union is permitted on condition
that in such states conditions of real reciprocity towards Italy exist,
without prejudice to the provisions deriving from international agreements.
The administrators of companies applying for the concession must not
have received an irrevocable prison sentence for a period superior to
six months and must not have been subject to security or preventive
measures. The Authority, as regards exclusively radio transmissions,
is authorised to allow derogations from the deadlines set out in clause
1 and for those referring to the drawing up of the national plan for
the assignment of frequencies and the consequent issue of concessions,
if the complexity of the plan for radio broadcasting make it impossible
to complete the plan within the time schedules provided for. The plan
should, however, be prepared within December 31st 1998 and the issue
of the relative concessions should take place within and not beyond
April 30th 1999. In case of derogation, the continuance of the radio
broadcasting is permitted as referred to in clause 1, up until the issue
of new concessions or until the rejection of the application and in
any case not beyond April 30th 1999.
3. For purposes of the issue of radio
- television concessions the regulations indicated in clause 2, and
issued after having heard the national associations of broadcasting
station or private network owners, provides that there should be:
a) for the national radio and
television broadcasters:
1) an adequate amount of share capital
and the adoption of corporate bye-laws which will allow for the
maximum degree of openness in the company’s operations in accordance
with clauses 16 and 17 of article 2;
2) a distinction, among the subjects
making application, aimed at identifying broadcasting stations
which, according to the production project presented, guarantee
a programme of productions aimed at diversifying the supply and
in accordance with market conditions, a significant quota of in-house
and Italian and European production, a sizeable programme given
over to information, an adequate number of employees and investment
plans co-ordinated with the production project.
b) for local radio and
television broadcasters and national radio broadcasters, the following
executive criteria apply:
1) the simplification of the conditions,
subjective requisites and procedures for the issue of the concessions;
2) the distinction with regard to
local radio and television broadcasters between local broadcasters
with exclusively commercial objectives and broadcasters with information
objectives identified by criteria that will be decided upon by
the Authority. The possibility of being able to make use of benefits
and incentives, already provided for by the preceding statute
laws, is exclusively limited to broadcasters obliged to provide
information and broadcasters as described in article 16, clause
5, of law August 6th 1990 n. 223.
3) An indication of subsequent provisions
aimed at favouring the availability of production and transmission
structures for common use, technical and productive investments,
the buying and selling of companies, plant and company sectors,
the divestitures and mergers as well as the creation of service
consortiums and the entrance of local radio - television broadcasters
into the market of telecommunications services.
4) The possibility for local radio
and television broadcasters to transmit differential information
programmes for no more than one fifth of the hours of daily transmission
in relation to the various territorial areas makin up the user
group.
5) The indication of specific future
provisions for advertising material, sponsorship and teleselling.
6) In the interim period before
the government issues one or more sets of regulations for radio
and television broadcasters at a local level, the sanctions provided
for by article 31 of law August 6th 1990 n. 223 are reduced by
one tenth.
7) In the national radio and television
broadcasting system, the local broadcaster who decide to dedicate
at least 70% of their single-subject daily programming to questions
of objective social utility, such as health, health care and social
services, and which can be classified as social service broadcasters
are considered particular important. The local broadcasters with
single-subject programming of clear social utility shall also
be considered for the division of the public advertising reserved
to local broadcasters and to local and national radio broadcasters
in conformity to clause 1 of article 9 of law August 6th 1990,
n. 223 in replacement of article 11 - bis of the legislative decree
August 27th 1993, n. 323 enacted, with modifications, as law October
27th 1993 n. 422, and, most recently, article 1, clause 10, of
the legislative decree October 23rd 1996, n. 545, enacted, with
modifications, as law December 23rd 1996 n 650. The local broadcasters
who propose to take on the characteristics and the commitment
as provided for in the first sentence have priority rights to
reimbursements and the reduction of the tariffs established by
article 7 of law August 7th 1990, n. 250 and by article 7 of legislative
decree August 27th 1993, n. 323, enacted with modifications as
law October 27th 1993 n. 422. As a supplement to the foregoing
laws, for those local broadcasters who dedicate at least 70% of
their own programming to subject matters of clear social utility,
the measure of the reimbursements and the reductions will be established
in terms of cost for both the information agencies and the general
overheads for electricity, telephones and telecommunications,
including the use of satellites, to the extent foreseen by current
law.
4. In the ambit of the reorganisation
of the national plan for the assignment of frequencies, such frequencies
are assigned in a priority manner, to subjects who hold community concessions.
5. The concessions regarding radio television
broadcasters at national level must make it possible to broadcast programmes
on the basis of technical criteria established by article 2, clause
6, and, at least, the broadcasting of a signal in a geographical area
which covers at least 80% of the territory and all the provincial capital
cities. The concessions regarding the radio broadcasters at a national
level must make possible the broadcasting of a signal in a geographical
area which covers at least 60% of the territory and all the provincial
capital cities. The national plan for the assignment of frequencies
reserves at least one third of the broadcast programmes to local television
stations and, usually, 70% of the programmes to be broadcast to local
radio stations. In the national plan for the assignment of frequencies
provision will be made for a reserve of frequencies:-
a) for local radio and television broadcasters
and national radio broadcasters who broadcast cultural, ethnic and
religious productions and which undertake not to transmit advertising
for more than 5% of their hourly programme schedules. The concession
for these broadcasters can be issued whether or not they are made
up of recognised or non-recognised associations, foundations, or non-profit
making co-operatives.
b) for the introduction of digital
radio and television broadcasting as set out in article 2, clause
6, letter d). The concessionaire of the public service and also authorised
companies or concessionaires for television or FM sound broadcasting
that for this objective may set up a consortium between themselves
or with other concessionaires for the management of the relative equipment
are allowed to carry out transmission making use of digital sound
and television broadcasting technology.
6. The television broadcasters operating
at a national level who exceed the limits provided for by article 2,
clause 6, can continue in a transitory manner until April 30th 1998
to manage the networks in excess of the limits in question, in respect
of the obligations laid down for national broadcasters holding concessions,
on condition that said transmissions are conducted simultaneously over
terrestrial frequencies and via satellite or via cable and that, successively
at the deadline as established by clause 7, exclusively via cable or
via satellite.
7. The Authority, in relation to a real
and congruous development of the market for cable and satellite radio
and television programmes, will indicate the deadline by which the programmes
broadcast by the broadcaster as indicated in clause 6 must be transmitted
exclusively by satellite or cable.
8. Upon the coming into force of the
present law the Authority shall order the discontinuation of the use
of frequencies which in its view are not essential to the subjects carrying
out radio and television activities for the transmission of their signals
to the geographical area of service and user group. The Authority will
assign, where necessary on an interim basis, such frequencies to holders
of concessions or authorisations for radio and television broadcasting
at a national and local level whose level of coverage of the population
resident in the reference population to which the concession or authorisation
refers is less than 90%. Broadcaster who transmit encrypted signals
are excluded from such assignations which will take place in conformity
to the criteria laid down by the Constitutional Court sentence of December
7th 1994, n. 420. The arrangements to which the present clause refers
will be implemented by the Ministry of Communications up until such
time as the Authority will commence to operate.
9. The provisions regarding the limitations
upon the raising of economic resources as set out by the present law
will come into force as from 30 April 1998. Within this date the concessionaire
of the radio and television public service is required to present a
reorganisation plan to the Authority whereby one of its television networks
will be transformed into a broadcasting network which cannot avail itself
of adverting revenue but without prejudice to the unity character of
the public service. In the plan presented by the Authority apposite
arrangements shall be made for, respectively, the Valle d’Aosta, Fruili-Venezia
Giulia regions and for the autonomous provinces of Trento and of Bolzano
with the regions and with the provinces in order to safeguard linguistic
minorities and on the basis of a logic of trans-frontier co-operation.
The broadcaster to whom the second sentence refers, shall not be subject
to the limits laid down by article 2, clauses 6 and 8. The Authority
having evaluated the reorganisation plan, heard the parliamentary commission
for general guidelines and the supervision of radio and television services,
shall indicate the term by which the broadcaser referred to in the present
clause shall be set up, together with an indication of the term referred
to in clause 7.
10. The radio and television broadcasting
originating in the national territory including encrypted transmission,
is subject to authorisation by the Authority or until such time as it
is set up, by the Ministry of Communications, upon the basis of appositely
drawn up regulations.
11. No subject may hold more than one
television concession for terrestrial frequencies in a national ambit
as concerns encrypted transmissions. The subjects who lawfully manage
more than one television network for encrypted transmissions on a national
basis when the present law comes into force must, pursuant to the provisions
of clause 2 of the present article, as from December 31st 1997, transfer
the transmissions from one of their networks onto cable or satellite
networks. Each operator can continue the operation of two networks up
until April 30th 1998. As from the date indicated in the foregoing sentence,
the excess network can be run on a provisional basis, upon the same
conditions and within the terms established by clauses 6 and 7. The
Authority will introduce a special set of regulations to govern the
encrypted transmissions on terrestrial frequencies and will take account
in the indication of the deadline referred to in clause 7, of the particular
nature of such types of transmission. The Authority or the Ministry
of Communications, up to the date on which the Authority begins operation,
and on a provisional basis before the approval of the national plan
for the assignment of frequencies, may assign the free frequencies,
including those rendered free by the transfer onto cable or satellites
of networks, as indicated in the present clause, to concessionaires
or authorised companies operating on a national or local basis which
find themselves in the conditions established in clause 8. Within ninety
days the Ministry of Communications will adopt, on the basis of the
provisions contained in the present law and the regulations as indicated
in article 1, clause 2 of the legislative decree October 23 1996 n.
545, enacted with modifications, as law December 23rd 1996, n. 650,
regulations to govern cable radio and television services. The provisions
of article 11, clauses 1 and 2 of legislative decree law August 27th
1993, n. 323, enacted with modifications, as law October 27th 1993 n.
422 which are in contrast with the present law are repealed.
12. The effects produced by the pre-existing
law on the subject matter shall remain in force, especially as concerns
the proceedings in course for the application of sanctions, the violations
ascertained and the sanctions applied.
13. As from January 1st 1998, the buildings
comprising several newly built residential units or those subject to
general restoration, for the purposes of the reception of satellite
radio television transmissions will usually avail themselves of collective
antennas and can install or make use of cable networks for the distribution
of the transmission received via collective antennas to the single residential
units. Within one hundred and eighty days from the coming into force
of the present law the municipalities shall issue regulations regarding
the installation of satellite radio-television reception devices in
historical centres in order to guarantee the protection of the built
environment.
14. The measures for the realisation
of new plant or for the re-qualification of existing plant, as concerns
the distribution of cable or satellite signals within buildings or habitations
are rated for Vat purposes at 4%. Similar measures apply to subscriptions
to radio and television services for closed user groups transmitted
in digital form over cable or satellites and including the relative
decoders.
15. The following words are eliminated
from article 1, clause 2, of law November 14 1995 n. 481: "including
hereby for purposes of the clause credit operations"
16.............................................................................................................................
17. The companies broadcasting radio
and television programmes on a local basis may make direct links either
through mobile repeaters or temporary connections on the occasion of
events relating to news, politics, entertainment, culture, sport and
current events.
18. Public limited companies are allowed
to acquire concessionaire companies carrying out sound and television
radio broadcasts as indicated in article 1 of legislative decree October
23rd 1996 n. 545, enacted with modifications, as law December 23rd 1996
n. 650, operating in the form of co-operative with limited responsibility.
19. Until the issue of the new concessions
for sound radio broadcasting the transfer and sale of plant or company
sectors between national radio broadcasters or between the latter and
the subjects with authorisations as set out in articles 38 and later
articles of law April 14th 1975 n. 103 is permitted in accordance with
the procedures laid down in article 1, clause 13, of the legislative
decree October 23rd 1996 n. 545, enacted with modifications as law December
23rd 1996 n. 650.
20. The licence fees for the concessions
regarding private radio and television broadcasting at the national
level fall due from the moment in which the instrument awarding the
concession is received.
21. When the present law enters into
force the transfer of shareholdings or stakes in private concessionaire
companies are possible on condition that the shareholding structure
that emerges from it is in line with the provisions of clause 2 of the
present article.
22. The provisions as set out in the
law August 6th 1990 n. 223, are applied on condition that the radio
and television companies request them to be applied, and even if a plan
for the assignment of radio and television frequencies and territorial
co-ordination plans is not available. In this case reference will be
made to the areas where the broadcasting and repeater equipment made
use of by radio and television broadcasters is sited.
23...............................................................................................................................
24. The licence fee for the sound radio
broadcasting service is waived for a period of ten years.
Art. 4. Networks
and telecommunication services
1. As from the date on which the present
law enters into force the installation of cable or terrestrial frequency
telecommunications networks, on a non- exclusive basis, will be subordinate
to the issue of a licence from the Authority. As from the same date
the administration of telecommunications networks and the supply of
telecommunications services are subordinate to the issue of licences
and authorisations from the Authority. The installation of terrestrial
stations for satellite services, according to the procedures laid down
in the legislative decree February 11th 1997 . 55 is subject to an authorisation
issued by the Authority.
2. The licences and the authorisations
referred to in clause 1 are issued on the basis of the provisions contained
in the regulations referred to in article 1, clause 2, of the legislative
decree October 23rd 1996, n. 545, enacted, with modifications, as law
December 23rd 1996 n. 650.
3. The installation of the telecommunication
networks on public property is subordinate to the issue of a concession
for the use of public land by municipalities and, in any case, in a
non-discriminatory manner as regards the various subjects who make application.
With regard to such concessions the municipalities may require applicants
to observe obligations with a civic character. For this purpose, the
Authority will issue a regulation that provides an outline framework
with regard to the arrangements and limits with which such obligations
are to be construed, whose validity will also include previously issued
concessions, at the request of the municipalities involved. The installation
of backbone networks, as defined by an apposite regulation issued by
the Authority is exclusively subject to the issue of a licence on the
part of the Authority itself. The measures referred to in the present
clause, as also the radio broadcasting concessions indicated in the
plan for the assignment of frequencies shall constitute a statement
of immediate and urgent pubic utility with regard to the work involved.
The areas acquired shall be considered inalienable property of the municipality.
For the acquisition of opinions, authorisations and permits as provided
for by the environmental legislation on the building and health a conference
of the public services involved shall be set up in conformity to article
14 of law August 7the 1990 n. 241, and successive modifications a public
service conference. As regards networks set up under articles 184 and
214 of the framework law on postal, postal banking and telecommunications,
as approved by the decree of the President of the Republic March 29th
1973 n. 156, the arrangements contained within said framework law with
reference to the legal limitations of the property and easement rights
apply. The responsibilities with regard to landscape and town planning
matters of regions with special charters and the autonomous provinces
are not affected by the present law.
4. The companies that install or manage
telecommunications networks and the operators who supply telecommunications
services through such networks are obliged, within the terms prescribed
by the regulations referred to under article 1, clause 2, of the legislative
decree October 23rd 1996, n. 545, enacted with modifications as law
December 23rd 1996 n. 650, to keep the accounts on respectively the
installation and management of the networks as also the activities concerning
the supply of services. The companies holding telecommunications licences
are similarly obliged to keep separate accounts on activities conducted
on the supply of the universal service separate from the other accounts.
The accounts kept in pursuant to the present clause are subject to control
by the an independent auditing company chosen from those registered
on the special register kept with the national Commission for companies
and the stock exchange (CONSOB) under the decree of the President of
the Republic March 31st n. 136 whenever the volume of its total sales
exceed the limit fixed by the Authority, which is also responsible for
defining the criteria for the keeping of separate accounts on the business
activity within six months from the coming into force of the present
law.
5. The plant to which radio and television
concessions refer can be made use of for the distribution of telecommunications
services. In this case, the subjects to whom concessions for local activities
are provided are obliged to keep accounts relative to radio and television
business separate from those referring to the telecommunications activities,
while the holders of concessions for national broadcasting are obliged
to set up separate companies for the running of the plant. The arrangements
to which the present clause refers will take effect after the plant
in question has been adjusted to take account of requirements of the
national plan for the assignment of frequencies, and such adjustment
must take place within one hundred and eighty days from the approved
of the plan.
6. The companies holding concessions
for public utility services which have realised, for their own needs,
telecommunication networks are obliged to set up distinct companies
for the performance of any type of activity in the field of telecommunications.
The concessionaire company for the public service involved in telecommunications
services cannot take out shareholdings, directly or indirectly thorough
controlling or controlled companies, or affiliated companies, with regard
to those companies providing public utility services which have realised
the foregoing networks nor acquire real rights or obligations with regard
to such networks.
7. The Authority confirms the concessions
given to companies which are concessionaires of the public radio and
television and telecommunications services and also their allied agreements.
The installation of large band infrastructure on the part of the public
telecommunications services concessionaire is subject to the concession
as indicated in clause 3. The installation, running and supply of networks
as also the supply of telecommunications serves on the part of companies
indicated in clauses 5 and 6 are subordinate to the issue of the measures
as set out in clauses 1, 2 and 3 of the present article as well as the
respect of the principles of objectivity, openness and non-discrimination.
8. On the telecommunications networks
all telecommunications services can be offered. Up until January 1st
1998, the telecommunications public service concessionaire shall retain
exclusivity in voice telephone services, but without prejudice to the
opportunity of experimentation on the part of subjects who have made
a request in this sense to the Authority and who received appropriate
authorisation. Until this date the companies to whom exclusive licences
are issued for telecommunications cannot produce radio television productions.
The concessionaire of the public service or the telecommunications service
cannot be the direct or indirect recipient of exclusive concessions
on unencrypted terrestrial frequencies and nor may they supply services
or programmes or collect publicity revenue for national or local radio
- television concessionaires using unencrypted terrestrial frequencies.
9. The offer of vocal telephony services
as from January 1st 1998 is subject to a government approved price regime.
The concessionaire of the public telecommunications service, for a period
not above two years from the date on which the present law comes into
force is also subject to a tariff regime as concerns voice telephony
services. The tariffs are set pursuant to article 2, clause 18 of law
November 14th 1995, . 481, with the objective of balancing the impact
of public tariffs and cost distribution. The Authority exercises the
supervision on the prices carried out and adopts the measures necessary
to ensure conditions of real competition.
Art. 5. Interconnection,
access and the universal service
1. The subjects to whom licences or authorisation
are given for the installation of networks or for the supply of telecommunications
services as also the subjects who hold authorisations for the running
of networks shall regulate the relationships of interconnection and
access on the basis of negotiations in conformity to rules issued by
the Authority and the following criteria:
a) the promotion of a competitive market
of networks and services
b) the guarantee of interconnection
between the networks and the services on local, national and E.U:
markets,
c) the guarantee of communication between
user terminals where compatible, of non discrimination and of the
proportionality of the duties and rights between the operators and
the suppliers.
2. The remuneration of the obligation
for the universal service is governed according to principles set out
in the regulations of implementation referred to by legislative decree
October 23rd 1996 n. 542 enacted with modifications as law December
23rd 1996 n. 650.
3. The subjects authorised to offer telecommunications
services pursuant to article 4 have the right of access to the networks.
Access can be limited by the Authority for reasons of a) safety for
the functioning of the network, b) maintenance of the integrity of the
network, c) interoperability of the services, in case that there emerge
good grounds of general and not economic interest.
4. If there are reasons regarding data
protection, including personal data, confidentiality of the information
transmitted or recorded and the safeguarding of privacy, access can
be limited by the Commissioner for the protection of personal data,
in agreement with the Authority.
5. The obligations relating to the supply
of a universal service, including those of national public interest,
and with specific connection to services of public security, public
assistance services, national defence, civic protection, the administration
of justice, teaching and government, and the procedures to be chosen
by the Authority with respect to subjects for whom an obligation exists
to perform them, are fixed on the basis of criteria established by the
European Union.
6. The provisions set out in clause 4
of the present law and also in the present clause may be modified at
the request of the Ministry of –Communications, according to the procedures
of article 17, clause 2, of law August 23rd 1988 n. 400, after having
consulted the Authority and the competent parliamentary commissions.
Art. 6. Financial
Cover
1. The costs of the present law, estimated
at Lit. 52,090,000,000 a year shall be met by:
a) for the amount of Lit. 32,090,000,000,
per year the use of resources already allocated to the Commissioner
for free trade and competition in broadcasting and publishing;
b) for the amount of Lit. 20 billion
through the arrangements set out in article 2, clause 38, letter b)
and later clauses, of law November 14th 1995, n. 481.
2. On the basis of said arrangements,
fees can be arranged where necessary for the services provided by the
Authority as required by law, including the keeping of the register
of operators, and would be applied on the basis of criteria that take
account of the differential level of costs required for the separate
activities.
3. The Ministry of the Treasury
is authorised to make, with its own decrees, the necessary variations
in the budget.
Art. 7. The coming
into force
1. The present law comes in force
on the day following its publication in the Official Gazette.
|
