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;
d) 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;
e) 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.
f) 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;
g) 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.
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