Web-radio and web-TV: F.A.Q.
In the implementation process of the Audiovisual media services directive no. 2007/65/EC, now 2010/13/EU (hereinafter “Directive”), transposed into Italian legislation by legislative decree no. 44/2010 (hereinafter “Decree”), Agcom has adopted two regulations for the licensing of linear audiovisual and radio servicesprovided on the internet (i.e. web-TV, IPTV and mobile TV) and of non linear audiovisual media services provided on any electronic communications network.
In order to ease the application of the new provisions, which are applicable to all companies falling under Italian jurisdiction, Agcom provides a set of F.A.Q.
Web-radio and web-TV: F.A.Q.
1) What are audiovisual media services?
All audiovisual media services, whether television broadcasting or on-demand, which fulfil the following three conditions:
- they are mass media, that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public,
- they fall under the editorial responsibility of a media service provider the principal purpose of which is the provision of programmes in order to inform, entertain or educate, to the general public by electronic communications networks
- they cover primarily economic activities.
2) Who is an audiovisual media service provider?
The natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised.
3) Who is excluded from the scope of the regulations?
The following services are excluded:
- any form of private correspondence, such as e-mails sent to a limited number of recipients,
- all services whose principal purpose is not the provision of programmes, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose,
- all activities which are primarily non-economic and which are not in competition with television broadcasting,
- services based on the upload of audiovisual content generated by private users, as long as there is no editorial responsibility by the media service provider on the selection of the content, but only aggregation activity of content uploaded by private users for the purposes of sharing and exchange within communities of interest;
- linear services with a schedule of less than 24 weekly hours and services not intended for the wide public, such as company TV services, and cable tv services in restricted areas, such as railway stations, airports etc;
- on-demand catalogues composed only of programmes already offered on a linear basis, such as catch-up TV or archive services, and catalogues that are not autonomously accessible by the general public, such as those inserted inside a catalogue accessible only from a bouquet offered by a different provider;
- online and electronic versions of newspapers and magazines, websites that contain audiovisual elements only in an ancillary manner, such as animated graphical elements, short advertising spots or information related to a product or non-audiovisual service, games of chance involving a stake representing a sum of money, including lotteries, betting and other forms of gambling services, as well as on-line games and search engines, but not broadcasts devoted to gambling or games of chance.
4) How should the 24 weekly hours be calculated?
The calculation concerns the schedules identified by the same logo for at least 24 hours during the same week, excluding the time devoted to the repetition of programmes or fixed images such as written messages.
5) What is the difference between the licensing of linear and non linear services?
Linear media service providers may start their activity after the elapse of 30 days from the application of an authorisation, without the need of waiting for a written authorisation, but Agcom can deny the authorisation in case of formal irregularities of the application form and its annexes. Non linear media service providers are automatically authorised on the same day of the notification to Agcom of the start of their activity.
6) Do “micro” web-TV/web-radio providers need to apply for an authorisation?
No. Agcom has limited the scope of the regulations only to professional activities that are ‘television-like’, i.e. that they compete for the same audience as television broadcasts. This condition is considered to be satisfied for providers who collect yearly revenues above 100.000 Euros.
7) Which revenues should be considered in order to be exempted?
Only revenues deriving from typical television activities such as advertising, sponsorship, contracts and conventions with public and private subjects, public funding and pay-tv offers. Revenues from services other than television-like services, such as hosting services, should not be considered. For Italian companies adopting the balance sheet according to art. 2425 of the Italian civil code, the relevant item is no. A1 (revenues from sales and provisions). The first balance sheet to be considered for the exemption clause is the first to be approved after the entry into force of the regulations referring to revenues of 2010.
8) Which are the revenues from typical television activities?
- All revenues, with the exclusion of commission’s fee and sales, incoming from any commercial communication, including advertising, sponsorship, teleshopping and the product placement,
- Revenues from the public service broadcasting fee
- Revenues from pay TV subscriptions or pay-per-view offers.
9) Pre-tax or after tax revenues?
After tax, and sales and bonuses are excluded.
10) Are exempted media service providers allowed to provide the service without an authorisation?
Yes. There are no duties nor obligations for services that do not fall under the scope of the regulations.
11) Are media service providers allowed to continue with the provision of the service while waiting for the authorisation?
Yes. All existing activities are allowed to continue, provided that they apply for the authorisation (in case of linear activities) or notify the start of activity (in case of on-demand services) within a year from entry into force of the regulations.
12) How are media providers ready to start the activity able to know if they need an authorisation?
They have one year from the start-up to verify if their yearly revenues exceed 100.000 Euros and therefore fall under the scope of the regulations.
13)What about the authorisation’s fee?
The fee is requested only for operators falling under the scope of the regulations. The amount is 500 Euros for audiovisual media services and 250 Euros for radio services and has to be paid only once for a 12-years period at the moment of the application or notification. No annual fees are requested.
14)Are pubic administrations allowed to manage a web TV or a web radio?
Public administrations are allowed to manage a web TV or a web radio only for institutional communication’s purposes as foreseen by law no. 150/2000 and may not be holders of authorisations for commercial media services.
15) Is an authorization needed for web TV stations already broadcasting on terrestrial frequencies?
No. Simulcast activities only need to be notified to Agcom.
16) Which subjects have to be listed in the communications operators register (ROC) managed by Agcom?
Subjects provided with authorisation under the new regulations need to be listed in the Register. If they are already listed for other reasons, they only need to update existing information. Subjects that don’t need an authorisation don’t have to register, but may in any case continue their activity.
17) Do media service providers authorised under the new framework need to keep a register of the programmes?
Yes. An electronic form will be provided by Agcom in due time.
18) Are media service providers authorised under the new framework obliged to broadcast daily news programmes?
No. Only terrestrial media service providers have to broadcast daily news programmes.
19) Are media service providers authorised under the new framework subject to specific duties related to advertising and protection of minors?
Yes. The Decree sets the same duties for all media service providers, without any distinction related with the transmission equipment. The specific duties are listed in Chapter 2 of the regulations.
20) Do on demand-radios need to apply for an authorisation?
No. Whereas the Directive concerns only audiovisual media services, the Decree considers only linear web-radios, without providing any rule for on-demand radios.
21) Do the regulations apply to websites providing user generated content (UGC) such as You-Tube, Google, Vimeo?
No. The regulations have expressly stated the exclusion of UGC web sites. In line with European legislation, media service providers fall under the remit of the regulations only when the following two conditions are jointly fulfilled: editorial responsibility and economic exploitation. Whereas the second condition is easily recognisable, in order to determine editorial responsibility the Directive requires two joint conditions: the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services. This means that websites that not provide an ex ante selection of user generated content, but only provide an indexing activity of the content uploaded by users, do not fall under the scope of the regulations.