Danilo A. Leonardi Licensing broadcasters in the 15 member states of the European Union

In all the countries of the EU a licence to broadcast must be obtained from an administrative authority. Most authorities have jurisdiction over the entire territory (e.g. the CSA in France) while some countries have separate media authorities for different areas of territory or different linguistic groups. There could be separate authorities in each state of a federal country (e.g. Germany), in each autonomous region, particularly where different languages are in use (e.g. Catalonia in Spain), or in each different linguistic community (e.g. Belgium where there are separate authorities for the French and the Dutch-speaking communities).

The regulatory bodies responsible for licensing and general supervision may be separate or combined in one regulator. These bodies enjoy an important degree of autonomy from the government regarding the formulation and enforcement of programme standards[2].

Most of the 15 countries surveyed have a long tradition of public service broadcasting (PSB). In the case of France and Italy, the regulator has some limited competences over public service broadcasting, but as a rule the public and the private sector are regulated independently.

The convergence produced by digital technologies has made broadcasting, telecommunications and computing come closer because it is increasingly possible for any given network to deliver any type of content. Consequently, and although full convergence is still ahead in the future, there is a tendency to combine the diverse functions of several regulators in one (e.g. OFCOM in the UK). Barendt points out that there are advantages to an arrangement in which the licensing and supervisory functions are combined in one regulator, as well as perhaps powers over private and public service broadcasting. For example, the regulator could see the role of both systems in relation to each other, and facilitate their activities in a complementary way. Moreover, the regulator might have more expertise, and for example, a licensing decision to a commercial broadcaster might be influenced by knowldedge about the public service broadcaster’s existing experience.

Sometimes regulators are assigned the enforcement of anti-trust rules in the interest of media pluralism (e.g. in the UK the ITC was required to ensure fair and effective competition in the provision of private broadcasting services, but the Director-General of Fair Trading and the Monopolies and Mergers Commission must determine whether networking arrangements meet the requirements of competition law.)

A general principle observed in all countries surveyed is the understanding that if a regulated private broadcasting system is to be independent from the state the license and regulatory authority(ies) must be autonomous from government. There are a variety of informal ways in which the Government can exert influence, and Hoffman Riem[3] points out that the legal forms offer little indication of the influence exerted. This could be written in the law, as it is the case in some of the German states. Or, in the case of the UK, even though independence may not be written in the law as such, the political culture ensures that government does not exercise powers that it may nominally enjoy. Governments exercise important supervisory functions over these organs by, for example, selecting the main personnel and making financial decisions in some cases. But the experience in the countries studied in this report is that the individual regulatory body’s independence rests in fact with rules concerning the composition and appointment of its members.

The starting point for broadcasting regulation is the allocation of the means of transmission. Licensing allows the checking of qualifications (e.g. suitability, fianancial abilities, citizenship, technical capabilities, etc.) and at the same time, the proceedings offer an opportunity for the regulator to attach in a “piggyback procedure” conditions to the use of the means of transmission. Needless to say, these conditions must remain within the framework of the existing broadcasting laws.

In the countries of the EU the airwaves are considered a public good and governments have a role in safeguarding this common good. The funds raised from the auctioning of licences should in turn benefit the community by promoting socio-cultural goals including content diversity. The argument in favour of the inclusion of “soft” criteria attached to the granting of a licence in an auction scenario has been criticized, however, in the sense that governments may be imposing a definition of the market prior to the auction. Nonetheless, it is accepted that as long as the criteria are verifiable they can be included in an licensing regime.

In the EU countries where there is a strong tradition of public service broadcasting there is a question whether public interest criteria should be placed on commercial broadcasters and whether governments are in fact avoiding the real price of what they consider a ncessary public service. Commercial broadcasters sometimes do not pay market price for spectrum use and in general we see that the countries surveyed in this paper offer access in return for certain goods, for example, news or educational programming of a quality above a certain standard.

The rules on licensing and conditions on the award of the licence are set out in broadcasting legislation. That is to say in statutes such as the Austrian Television Law 2001, the Danish Broadcasting Law (amended 1^st. January 2003) or other examples of broadcasting statutes and other pieces of legislation such as those mentioned in the country by country survey below. In addition there are very detailed programme codes that are attached to the licence conditions. The regulators also issue directives (e.g. the directives issued by the ITC in the UK).

Licensing of broadcasting is directly authorised in Article 10 of the European Convention on Human Rights, to which all the countries in this survey are a party.[4]

The licensing process is administrative and it links substantive and procedural issues. An administrative body or bodies apply the rules. Most EU countries have or are planning to set up a single licensing and regulatory body.

The ITU has identified three phases in the process of spectrum division: (1) allocation; (2) allotment and (3) assignment. In the allocation process spectrum is divided into different categories of services; in the allotment process a division is made between different geographical regions. National authorities draw up the frequency plan (e.g. in Italy the plan is carried out by AGCOM and in Germany by Regulierungsbehoerde). What concerns this paper is the third phase, the assignment process, in which the national authorities divide spectrum among users, in particular, the assignement of licences for broadcasting.

In general, licenses could be awarded by resorting to different procedures: (1) “first come, first served” (those whose application is first in time receive the award), (2) “beauty contest” (those who meet the qualitative criteria receive the award), (3) lottery (pure chance determines who receives the award), (4) auction (the highest bidder receives the award) and (5) a mixture of the previous methods. Methods (1) and (3) are arbitrary and the spectrum is scarce and there are many applicants. The tendency in the EU countries is to resort to (5), a mixture of methods, usually method (4) the auction, moderated with method (2) the beauty contest, which requires qualitative criteria to be met as well. For local radio a pure “beauty contest” is quite often in use.

Licensing bodies carry out a vetting test of those who apply. The systems in place in the EU countries have rules on elegibility to apply for a broadcasting licence (which are set out in legislation). The systems of rules contain disqualifications for certain types of prospective applicant. The rules overlap to some extent with the rules on ownership, i.e. rules limiting the accummulation of licences and those rules that regulate cross-media ownership. The elegibility rules exclude unsuitable persons or organisations.[5] The licensing requirements for terrestrial broadcast are more stringent than for other media.

Licence grants are given for a limited period, not indefinitely. Periods are relatively long, to allow the broadcaster realise its investment and fulfill programme obligations.

The television licences across the EU tend to be awarded for about 10 years. Many digital broadcasting licences are granted for 15 year periods. There are much shorter licences, for example, the German state of Baden-Wurttemberg in which legislation offers particularly short licence periods: a maximum of 5 years and a minimum of one.

The successful applicant enjoys a protected status. There is a “renewal expectancy” as procedures and evaluation tend to favour the incumbent, and even following the expiration of a license the last holder has a good chance of securing renewal. Towards the end of the period the licensing authority may review the geographic area of coverage, the programme requirements and how satisfactorily the incumbent has fulfilled its obligations.

Once the licence is awarded, the tendency in EU countries is to license a broadcaster by contract. This procedure allows for strengthening the licensee’s commitment to its obligations, and provides additional contractual remedies in case of breaches. However, there is already considerable experience in the field across the EU, and the broadcasting statutes have been refined over time, and therefore the statutory remedies already available are sufficientely varied to render the contractual remedies somewhat redundant.[6]

Free to air broadcasters have to fulfil positive programme requirements which are pomises of performance made at the application stage. These promises of performance are part of a licensee’s duties and are monitored by the regulatory authorities.

The scarcity of spectrum has traditionally been considered as the basis for obligations such as content regulation or public service obligations that are attached to a license to those who are granted access to a scarce resource. Changes taking place in legislation (e.g. the Wireless Telegraphy Act 1998 in the UK) are having the effect of making price rather than regulation as the key to access to spectrum.[7] Economic analysis, competion and prices set by auctions are having an impact on broadcasting legislation across the EU countries.

The transition to digital broadcasting services to take place in the first decade of the 21^st. century across the EU. There will be pressure on broadcasters to free up important portions of spectrum currently occupied by analogue services for use by other services (e.g. mobile communications).

- Licensing digital broadcasting services: does licensing involve the allocation of transmission facilities, frequencies or programme services?

The structure and regulation of digital broadcasting distinguish it from analogue services in the fact that it makes possible to offer a high number of channels and services available. There are three components to the licensing: (1) licensing of programme services carried on multiplexes; (2) licensing of multiplexes that carry those programme services and other services and (3) licensing additional services such as teletext, interactive services (e.g. home shopping), electronic programme guides (EPG), etc.

The countries addressed in this survey are currently at different stages in the period of transition to digital broadcast. For the time being analogue services are regulated in traditional ways while broadcasters are incorporating new technologies and simulcasting some channels using both technologies until analogue broadcasts are closed (sometime in the first decade of this century). The licensing regime is therefore changing to reflect the new situation. The tendency in the regulation of digital broadcasting is to make the conditions for licensing less strict on the additional channels that become available, while the main free-to-air channels are regulated in similar ways as in the recent past.

Although the enforcement of licences involves supervision, and therefore it lays outside the scope of a paper on issuing and renewing licences, reason for including the issue in this Regimes in use in EU countries permit actions such as suspension, abolition or shortening of the period, which are taken against the licence in case of violations. Practice in the EU suggests that a graduated system of sanctions offers much more chances of effective control than a system with a few draconian measures that the regulator would ultimately be reluctant to resort to.

When the regulator ascertains a violation of a duty attached to a licence there are graduated sanctions at its disposal. A first step involves notification and warnings. If this proves ineffective, administrative (even criminal) fines may be imposed. Some regulators are able to impose sanctions themselves (e.g. Germany) while others rely on the intervention of courts (e.g. France). The regulator bears the burden of proving that norms were breached. In some countries broadcasters have to deposit a bond as a guarantee that they will follow programming commitments (e.g. UK). There are rare cases when the license may be withdrawn or not renewed.

Most broadcasting laws explicity provide for the renewal of licences, although some may simply mention the possibility without further provision[8]. The legal framework in place across the EU countries contains a “renewal expectancy” provision, which tends to make it difficult for the regulator to set new obligations, but under changed circumstances and in the case of failure to observe a duty, the licence may be suspended or withdrawn.

Sanctions applied by a regulatory body can be appealed before the administrative courts. For example, in France sanctions applied by the CSA can be appealled to the Council of State. In a recent case the CSA imposed a one month suspension to a radio station which had not fulfilled its obligation to broadcast a daily programme of local interest as required in the agreement between the CSA and the station which was attached to a licence. The radio station asked the Council of State to quash the decision of the CSA. The Council of State found no violation of Art. 10 of the European Convention of Human Rights by the CSA as the formal notice served by the CSA had acted in accordance with the law and had listed the occurrences that were the source of the complaint and the sanctions applicable if the irregularities were not to cease.[9]

Survey of licensing in the 15 EU countries

The Austrian Communications Commission (KommAustria)[10] regulates broadcasting and telecommunications, and assumes tasks prevouisly distributed between the Chancellery and various ministries, and it has responsibility for licensing in the entire territory of the country.[11] In 2001 Austria adopted a new framework for regulating the private broadcasting sector by a federal law, the Commercial Television Law.[12]

In 2002 Austria licensed its first commercial terrestrial broadcaster: Austria TV[13]. Before this date commercial broadcasting was possible via cable or satellite only. A market study published in May 2003 concludes that the public service broadcaster ORF is the leading provider of programmes, and owns the infrastructure for both terrestrial radio and television transmission. As regards commercial radio, there is no national station, but numerous regional and local commercial radio stations. [14]

Yes. The Commercial Television Law contains guidelines for the licencing of national or local analog television and national digital terrestrial television. It also provides for the creation of a working group Digital Platform Austria to draw up the digitalisation plan in partnership with the regulator.[15] The licence to the first Austrian private channel (ATV) contained the following conditions: (1) accessibility: ATV must be accessible to 70% of the population by 1 February 2003 and 75 % by 1 February 2004; (2) programming: at least 20 % of programming must be its own production.[16] These criteria are flexible.

The Commercial Television Law authorises the Austrian Communications Authority (KommAustria) to issue licences. The selection criteria gives priority to the applicant that shows (1) programming: that its programming offers the greatest diversity of opinion; (2) accessibility: that it can technically reach the greatest percentage of the population of the country.

In 1997 the Regional Radio Act was amended and the licensing of private radio stations resumed. Licensing arrangements for local radio services are more liberal than for regional radio. There are restrictions on ownership for newspaper publishers (they may not have holdings in excess of 26 % in a regional or local radio station, or in excess of 10 % in each of two further regions).[17]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

There are separate bodies for licensing according to the language of the communities.

As a result of the 1998 reforms the Flemish Media Authority[19] became the body competent to grant licenses to broadcasters, and to supervise and control the application of broadcasting legislation. Voorhoof[20] explains that in law the Flemish government has no influence on the authorization and supervision of broadcasters, including PSB and cable networks. However, Voorhoof warned in 1998 when the Flemish Media Authority was being set up that a lot would depend on how the government organised the authority and the kind of staff it would be given[21]. In 2003 the government is looking into reorganising the authority.

The CSA Conseil Superieur de l’Audiovisuel is the regulator. There are federal rules on coordination of use of frequencies between services for the two communities. The Council has general advisory powers, but the advice is binding and it is a preliminary requirement in case of award, suspension or withdrawal of a licence for private broadcasting services.

As regards the management of infrastructure the Minister for Communication has jurisdiction over the management of the infrastructure for both for the French and the Dutch-speaking communities.

Yes. There is a procedure for private television channels to obtain a licence. Licence awards are accompanied with agreements that set down obligations expected of broadcasters.

There are procedures before the Flemish Media Authority or the CSA depending on the language.

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

The amended Broadcasting Law[23] entered into force on 1^st. January 2003. It establishes that the right to provide programme services is given as follows: (1) by the law itself in the case of the public service broadcasters, which are Danmark Radio and TV 2[24]; (2) by a licence granted by the Radio and Television Board (set up by the Minister of Culture) for terrestrial broadcasters using scarce spectrum; and (3) by registration with the Radio and Television Board.[25]

The new Law introduces a considerable measure of market liberalisation.[26] Cable-network distribution of programmes does not require a licence or even registration with the Radio and Television Board.[27]

Yes. The new law repealed the requirements of geographical and organisational attachment to the local area and allows networking (programmes transmitted simultaneously by different local broadcasters). As regards local television there is a Board is nominated by the local council and can issue licences for a fixed period not exceeding 5 years. Pluralism must be safeguarded to represent the nature of local life. Any decision to reject taken by the Board can be brought before the Local Radio and Television Committee.[28]

Art. 49 of the Broadcasting Law establishes that licences shall be granted for a fixed period not exceeding 5 years for radio and 7 years for television services.

The Minister of Culture, the local administrative area and the telecommunications company are involved in the licensing process. The telecommunications company and the local administrative area must reach an agreement in advance based on the requirements set down by the Minister of Research. There are rules on calculating payments for linking collective receiver installations with the public network and users have an influence on programming.

The Broadcasting Law established a public tender to take place in Spring 2003 for the licences of digital television and radio services.

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

The PSB, YLE (Finnish Broadcasting Company), operates on the basis of the Act on the Finnish Broadcasting Company[29] and unlike the case of the private sector, there is no licence requirement placed on YLE. All other broadcasters are subject to an operating licence, in accordance with the Act on Television and Radio Operations.[30] Operating lincences are granted by the Council of State. In July 2002 an array of amended laws entered into force in Finland: Act on the amendment of the Telecommunications Market Act, Act on the amendment of the Act on Television and Radio Operations, Act on the amendment of the Act on the Finnish Broadcasting Company and the Act on the amendment of the Act on Communications Administration. Changes take account of the introduction of digital broadcasting and the implementation of the EU regulatory framework for all electronic communications.[31]

Yes. The terms of the operating licence may include provisions on programme, transmission area, technology in use and hours of daily broadcasting. When granting a licence the authority shall ensure the promotion of free speech, safeguarding diversity in programming and the needs of special groups of the public. The government determines which major sports events must be transmitted free of charge.[32]

The maximum period is 10 years for commercial broadcasters. Cable operators need only to register with the Telecommunications Administration Centre, and licenses are awarded for a period no longer than 5 years.[33]

The Council of State draws up a plan on the use of frequencies in television and radio services, and sets aside some frequencies for the public service broadcaster.[34]

Holders of an operating licence with a revenue over a minimun limit must pay an operating licence fee. The amount is calculated according to a progressive scale fixed in the Act on the State Television and Radio Fund. The revenue used for calculations takes account advertising, sponsorship and broadcasting operations.

The amendments introduced in 2002 cut the operating licence fee for commercial television by 50 %, and established that no licence fee will be imposed on digital television services until 31 August 2010. The operating licence fee for commercial radio has been abolished altogether.[35]

If there is a major change of ownership in relation to the holder of the operating licence, the operating licence will be withdrawn.

The Prime Minister decides, after consultation with the CSA – Conseil Superieur de l’Audiovisuel[36], which frequencies are allocated to organisations run by the State and which are allocated by the CSA itself. The CSA licenses and also monitors the use of the radio frequencies of which it has control.[37]

The CSA establishes for terrestrial broadcasting a number of technical specifications (the characteristics of the signals transmitted, the place from which programmes are transmitted, the upper limit of beamed apparent power, the protection against possible interferences. Cable operators require a licence for the CSA. In the case of satellite, if the frequency is managed by the CSA, the CSA publishes call for tenders for the use of frequencies. If not managed by the CSA, licences are obtained from the government body responsible for the frequency, but the approval of the CSA is required.

For the public service sector the government is responsible for drawing up the terms and conditions governing a broadcasting service. The CSA issues binding opinions and any infringement of its requirements may lead to the cancellation of the operating licence.

Yes. Licences are awarded by a public law contract made between the CSA and the successful bidder, and the contract includes a number of conditions concerning programme and advertising standards. Breach of these terms may be sanctioned by contractual remedies in addition to the remedies available in the statute.

For the commercial sector the CSA issues licences, and it stipulates the requirements in the agreements signed with the operator for a maximum of 10 years.[38] In the case of terrestrial television services a licence can be renewed on a maximum of two ocassions without other applications being invited for a period of 5 years in each case, unless the State has amended the geographical area covered by the frequencies concerned, the CSA considers that the sanctions imposed on the licence holder prevent the renewal of the licence, without other applications being invited, the CSA believes that the renewal of the licence without other tenderers being invited is prejudicial to the interest of pluralism.

On 12 June 2003 the CSA issued France’s digital terrestrial television licences for the public service broadcasters and the commercial broadcasters for the simultaneous retransmission of their programmes in digital mode and to 20 additional private channels.[39]

The procedure for issuing operating licences involves three stages: (1) invitation to tender; (2) public interviews and examination of submissions and (3) publication of the name of the successful applicant and signature of an agreement.

The CSA must take into account: (1) the constitutional requirements concerning pluralism (the need to have a variety of station owners, the need to avoid abuses of a dominant position and anticompetitive practices), (2) experience of the applicant in the field; (3) financing and operational prospects and (4) holdings which the candidate has in the capital of one or more advertising concerns.[40]

The CSA can impose specific requirements in the terms and conditions. The agreement must cover one or more of the following issues: duration and general features of the programme, cultural requirements (contributions made to culture, education, etc), support for film and programme industries, safeguards of producers in relation to radio and television companies, contribution made to the transmission of programmes in overseas, time allocated to advertising, etc. Candidates for television licences are entitled to a public hearing of their case.

A licence can be withdrawn (without prior notice) in cases where there has been a significant change in the facts on the basis of which the licence was issued. If the licence-holder refuses to comply, financial penalties can be imposed.

The CSA has no powers to impose fines in the public sector, as it can only publish observations. In the private sector, the CSA can give notice to a licence holder to comply with requirements: (1) it can then suspend the licence or part of the programme service for a period of a month or longer, (2) it can reduce the period of the licence, (3) it can impose financial penalties.

The CSA took almost two decades to bring order to the use of spectrum by private radios. After long negotiations it persuaded radios to give back illegally acquired frequencies and the CSA later redistributed those frequencies to suitable applicants.[41]

Germany:

The federal system in Germany means that the states of the federation have all responsibility for culture and media and there is no regulatory authority at the federal level.[42] The “Regulierungsbehoerde” (a body with some similarities with the FCC in the United States) determines the frequencies which are available taking into account the overall agreements under the ITU – International Telecommunications Union (before deregulation in 1999 this was a task for the Ministry of Post and Telecommunication).

Each state has created a public agency entrusted with the task of licensing and supervising broadcasting (LMA – Landesmedienanstalten). Private broadcasters intending to broadcast nationally, or to a limited geographic area (state, region or local) must be licensed by the LMAs having jurisdiction over the area(s) for which the licence is sought.

Yes. There are variations from state to state. Licensing requirements are set out in the Interstate Treaty on Broadcasting and in the 15 state media statutes for private broadcasting passed by each individual state (as regards PSB, there are also 15 statutes). However, the fundamental rights of freedom of information and freedom of broadcasting as interpreted by the German Constitutional Court underpin broadcasting.[43] Private broadcasters are bound by certain minimum standards with regard to balance and the expression of pluralism of views.

As regards rules on ownership, these are set out in the Interstate Treaty, the state media statutes, and more generally, federal legislation and EU competition law.

The State treaty lays out requirements of protection of pluralism and a balance of views and limits the number of channels each private broadcaster can control. The treaty also limits the interest a company may hold in a private broadcaster of national reach.[44]

Germany is a federation, and licensing legislation varies from state to state. There is commonality, however, and the maximum average period is 10 years, with a minimum of 4 to 5 years. (Barendt cites Baden-Wurttemberg as a state with particularly short periods: a maximum of 5 years and a minimum of one.)[45]

Each state of the federation allocates the frequencies according to a tendering procedure. Let us take the typical German state arrangements. Usually a statute provides for a state broadcasting commission and a smaller directorate. The commission makes the most important decisions, such as allocation and withdrawal of licences, and supervises compliance with programme standards. The commission is composed of a number of members[46], chosen by organisations specified in the statute, such as churches, trade unions, chambers of commerce, sports, educational and other organisations. Political parties may nominate one member, but members of state or federal government are not elligible. There is, therefore, formal distance from the state authorities. The smaller directorate, on the other hand, is concerned with financial and daily administrative matters.

As regards cable, the Ministry for Post and Telecommunications had sole authority in the area, after 1999 the federal government delegated its power to the Deutsche Bundespost Telekom. The states of the federation are responsible for allocating frequencies.[47]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

The LMA in each state of the federation is responsible for ensuring that broadcasters fulfill the licence obligations.[48] Regulators award licences, which can be suspended or withdrawn in case of violations. The regulator applies sanctions in cases related to programme control, such as broadcasting programmes without a licence, control of the distinction between editorial and advertising, control of sponsorship rules, protection of personal data. Offences are punishable by fines.

The new NRTC – National Radio and Television Council was set up in 2000. The Council is an independent authority whose members enjoy personal and functional independence from government, but answerable to Parliament. The NRTC grants licences, but it does not take supervisory decisions.[49] A Greek commentator warns that this constitutes an important handicap of the authority if compared with European counterparts.

Previously, for terrestrial transmission, there were a number of authorities involved in the licensing process: the Minister for the Press and the Mass Media[50] which was empowered to compile a frequencies plan and to award broadcasting licenses. Decisions were taken jointly with the Minister for Transport and Communication and the Minister of the Interior. The Communications Division of the Ministry of Transport and Communications dealt with the technical aspects.

Yes. The law requires private broadcasters to protect the public interest, maintain the quality of programming, apply the principles of pluralism and maintain the rules of impartialiaty in broadcast news.

The NCRT grants licences. Previously, the Minister for the Media granted licences to private television for a four year period.

Licences are awarded byt the NRTC. The NRTC applies the Act on Restrictions in the conclusion of public contracts by persons with a stake in mass media companies, and it issues a “certificate of transparency” once it ensures that the private party entering into a public contract is not affected by any of the incompatibilities determined in the law.[51] A broadcaster will have had to make a minimum investment, meet criteria for the quality of programming, meet technical requirements for equipment. The National Broadcasting Council uses a point system to assess applicants and draw up lists of applicants.[52]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law. The National Broadcasting Council exercises supervisory and regulatory functions, and can impose financial penalties or suspend or withdraw a licence temporarily or permanently.

For the commercial sector there is an Independent Radio and Television Commission (IRTC) responsible for the development of commercial independent services at national, local and community level.[53] Broadcasting operates under the Minister for Communications who issues licences and the Minister for Arts, Culture and the Gaeltacht who is responsible for broadcasting policy. Cable networks require a licence from the Department of Transport, Energy and Communications.

The Broadcasting Act 2001 made provisions for the introduction of digital terrestrial broadcasts.[54] In 2002 a Forum on Broadcasting established by the Government recommended the creation of within 3 years of a single regulator for Ireland to be called the Broadcasting Authority of Ireland.[55]

Reception of UK television in the Republic of Ireland was available by simple antenna in border and coastal areas and via cable distribution (under licence) in urban areas from 1981. In rural areas reception was only possible by the use of MMDS systems (Microwave Multipoint Distribution Systems, also known as Deflector Systems) and the government licenced operators of these Deflector Systems since 1988.[56] The Director of Telecommunications in Ireland is in charge of issuing licences for the Deflector Systems. The licences for these systems will expire in December 2003 as spectrum currently used by the deflectors will be needed for digital terrestrial broadcasts.[57]

Yes, the law contains conditions. In addition, there is a contract between the licensee and the authority that sets out supplementary conditions.

Licensing for commercial broadcasting was introduced in Ireland in 1998 by the Radio and Television Act 1998. Before the act the public service broadcaster RTE enjoyed a monopoly but there were up to 80-90 unlicensed radio stations that co-existed.[58] The 1998 Act regularised the situation. The criteria for the award of licences is establishded in the Act. The IRTC, the regulator, also monitors compliance with the terms of the award.

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

The AGCOM (Italian Regulatory Authority) became operational in July 1998.[59] The AGCOM is responsible for telecommunications, radio, television and the publishing sector. It is headed by a President appointed by the President of the Council of Ministers and it is organised in two Commissions (one commission deals mainly with issues of infrastructure and networks and the other deals with products and services) headed by 4 members each appointed for seven year terms by Parliament, to which they are accountable.[60]

AGCOM is in charge of preparing the frequency plan for national analogue television (adopted in 1998), for digital television (broadcasters currently in possession of an analogue licence will have a preferential condition for a digital licence) and for digital radio.[61] Italy has a fixed deadline (31 December 2006) for the switch off of analogue television.

The Ministry of Communications[62] grants licences according to the regulations adopted by AGCOM.[63]

Yes. The law contains the following provisions that are attached to a licence: (1) conditions for the concession assignment (minimum capitalisation, indication of the reference broadcast area, compliance of all technical equipment with international standards); (2) compliance with the definition of operators and guidelines for operators according to the following categories: information broadcaster, community broadcaster, social monothematic broadcaster, commercial broadcaster, tele-shopping broadcaster, conditioned access broadcaster); (3) binding rules attached to the licence (programmes quality, protection of minors, advertising rules, information duties and right of reply, etc.); (4) incorporation of incentives for the adoption of digital broadcast technologies.[64]

Law 122 of 1998 regulates the requirements of the time of programming time devoted to European works, according to the Television Without Frontiers Directive.

AGCOM established 12 year periods for digital terrestrial radio and television broadcasting. Previously a licence was granted for a period that would not exceed 20 years, and it was renewable[65]

The Italian Law[66] listed criteria to be taken into account by the Minister for Communications when awarding licences: (1) financial resources; (2) programming plans; (3) technical plans. If it concerns renewal of a licence, the incumbent has to detail (1) the broadcaster’s presence in the market; (2) the quality of the programmes; (3) the proportion of self-produced entertainment and informational material in their schedules; (4) the levels of viewership. The new digital services required the introduction of a distinction between different categories of providers.[67] There are rules concerning competition and ownership.[68] In order to encourage the switch to digital, a licensing regulation issued by AGCOM in 1998 waived the digital broadcast licence fee for 6 years to broadcasters who would undertake to broadcast digitally before 2000, while reducing by 50 % their analogue licence fee payments.[69]

The procedure for operating a cable station involves the granting of a public service licence to an operator to cover equipment and is based mainly on regulations which apply to the creation of public works and to telecommunications. The request for a licence must be sent to the Minister for Post and Telecommunications, who has to reply within 180 of the request being made. The request must contain a plan for implementing the proposal as well as technical specifications.[70]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

The Minister of Communications is in charge of technical matters. A licence is necessary for telecommunications services. The right to operate cable is granted through an allocation process on the open market system, administered by the Minster of Communications. There is no regulatory body for television. A Media Department within the Ministry has been created.[71] The authorities are considering the creation of a new independent regulatory authority, in particular in view of the introduction of digital services.[72] There is no public sector in broadcasting in Luxembourg.

Yes. The Law of 1991[73] indicates that the document setting out terms and conditions relating to the licence may contain provisions for the activities of the licensee company to be monitored by one or more government commissioners. This includes licences granted for the transmission of programmes to an international audience, those intended for an audience within Luxembourg itself, or those transmitted by satellite.

A licence for the use of Luxembourg’s terrestrial broadcasting services was granted to CLT until 2010.

Licences are personal and non transferable, of limited duration but renewable. Licences can only be granted if the licensee is located in Luxembourg. As regards content the Luxembourg law distinguishes between programmes intended for audiences resident in Luxembourg and those aimed at an international audience or national audiences not resident in Luxembourg. In both cases the Grand Duchy, acting on advice from the Council of State and with the agreement of the working party of the Chamber of Deputies, issues a regulation setting out the conditions under which the government acting on recommendation from the Prime Minister and having consulted the Independent Broadcasting Committee, grants licences to transmit television programmes.

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

Licences can be withdrawn: (1) the conditions imposed for granting the licence are not fulfilled; (2) the duties set in terms and conditions are infringed; (3) if the licencensee does not provide a regular service.

There is one regulator: Commissariaat voor de Media.[74] Commercial broadcasting was first introduced in the Netherlands in 1992, however, Dutch commercial broadcasters operated from Luxembourg before this date.[75]

Yes. Rules governing licensing are set out in the Media Decree 1987 and its subsequent amendments.[76] Details are also contained in the Media Act[77] Procedures at the Media Authority are of course regulated by the General Law on Administrative Procedures.

The concessions are for 5 years. The public broadcasters have concessions for 5 years, and he companies or associations must have at least 150,000 members. Broadcasting companies represent a certain cultural or political identity[78]. Private national broadcasters receive concessions for 5 years, and must be able to reach at least 60 % of households connected to a cable network in each province.

The Council of Ministers agreed with the Minister of State for Education, Culture and Science to grant licences for digital services. One licence covers 4 of the 5 multiplexes, operated by a commercial operator. The award is made on the basis of a “beauty contest”.[79]

The “beauty contest” system is also used for allocating frequencies for commercial radio (AM and FM). A decree introduced new requirements of the sort that two decades ago were removed as they were written in the Penal Code: frequencies cannot be awarded to applicants that will disturb the peace, cause confrontation between sections of the population. A Dutch commentator warned that these requirements for radio licences raise freedom of speech concerns.[80]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

Its surpervisory competence is exercised a posteriori, and can impose fines, reduction in amount of airtime or withdrawal of licence. The Comisariat has a code of sanctions. It seeks assistance from a panel of experts during sanction procedures. There is a hearing at which the broadcaster can put its case. After the decision, the broadcaster has 6 weeks to lodge a complaint with a Complaint Committee, which organises a second hearing. They give advice to the Commissariaat, who is free to follow or ignore the advice. An appeal can be brought before an administrative court..

The High Authority for the Mass Media[81] gives an opinion on the merits of the applicants. The frequency allocation plan must be approved by a government decree. There is one public broadcaster and there are private broadcasters. There is a law on television[82] and a new Radio Law was approved in 2001.[83]

Yes. The High Authority for the Mass Media gives an opinion on the merits of the applicants, examining (1) procedural conditions, (2) legal status of the applicants and (3) programme scheduling. [84]

The Council of Ministers has the responsibility for granting licences to the private broadcasting organisations for a 15 year period. The licence awarded in 2001 for a digital terrestrial television platform is also for a 15 year period.[85]

The High Authority for the Mass Media gives an opinion on the merits of the applicants, examining (1) procedural conditions, (2) legal status of the applicants and (3) programme scheduling. According to the Radio Law conditions were attached to licences for local radio, to increase their production of programmes and avoid their being mere re-broadcasters of national radio channels. The law also contemplates bidding for university radios and regulates cable and satellite distribution of programmes.

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.[86]

The Council of Ministers has the power to cancel licences when (1) there is a change in the ownership of the company in breach of rules set forth in the awarding of licence, (2) there was a violation of the principle of programme scheduling which requires a wide range of subjects aimed at all categories of the audience.

The Constitution gives the state exclusive authority to determine the basic standards and the autonomous regions are able to expand those standards. There are public service broadcasters, regional channels and private sector channels.[87]

As regards terrestrial television the allocation of frequencies is decided by the Director General of Communications in the Ministry of Transport, Tourism and Communications.[88] RETEVISION, as a public body, manages the frequencies. The Ministry supervises and approves equipment.

There is no single regulator in Spain. A parliamentary commission exercises control over the public sector, as well as similar parliamentary commissions in the regions. Some autonomous regions have a regulator, for example, the CAC (Catalan Audiovisual Council)[89].

Yes. The franchises are assigned taking into consideration (1) freedom of expression and a variety of opinions can be expressed, (2) the project is financially and technically possible, (3) programme requirements (national, EU and foreign), (4) applicants must be able to satisfy the requirement of being able to to meet the demands of the regions and the pluralist interests of viewers.

The system of franchises is used for the 3 commercial channels for a period of 10 years, which is renewable.

After the adoption of the Private Television Law in 1988 the Spanish Government opened a procedure to grant three licences. No natural or legal person can own directly or indirectly more than 25 % of the capital of a licensee company. Terrestrial television is considered a public service.[90]

In December 2002 several amendments were introduced to the broadcasting legislation. All local terrestrial television shall be broadcast digitally only. Only cities or groups of cities that meet certain population thresholds will be allowed to have local digital terrestrial television stations. The Autonomous Communities will award concessions for the provisions of these services. New ownership limits have been imposed. The amendments are controversial in Spain.[91]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

Sanctions in the public sector are mainly political, as the government appoints the director of RTVE. In the private sector, there is a reange of sanctions: (1) very serious offences: failure to adhere to principles of pluralism and objectivity, disregard of scheduling obligations and limits placed on advertising, affront to human dignity and privacy, failure to honour obligations concerning election campaigns, transmission of subliminal messages; (2) serious offences: use of non-approved material or technical equipment, creating technical interference and (3) other offences: offences which do not cause serious harm to the public service. A range of fines is specified.

The Ministry of Culture is responsible for the technical aspects of broadcasting and the Radio and Television Authority is in charge of awarding licences.[92]

Yes. Digital broadcasting licences are awarded on the basis of programme declarations each applicant had to present. The concession requires that succcessful applicants respect privacy, uphold objectivity, and take into account child protection rules. All licensed companies have undertaken not to accept radical changes of ownership that would result in more concentration of ownership in one area. As regards demands on programme content, impartiality and diversity, the requirements in line with current requirement for the few analogue open channels are imposed only on the PSB and the only commercial television broadcaster already active on analogue terrestrial television.[93]

In Sweden only terrestrial channels require a public service franchise awarded by the government.[94] The Ministry of Culture[95] is responsible for all technical aspects concerning television broadcasting.[96] The digital broadcasting system is designed in a way that promotes competition and does not develop into a private monopolised system.[97] In April 1999 the Swedish terrestrial broadcasting network was opened.

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law.

Very important changes were introduced to the current regime in July 2003. There is a transitional period at the moment and therefore this section of the paper will address the situation as it stands at the moment of writing.

There is a public[98] and a private sector. The private sector is currently licensed and regulated by the ITC – Independent Television Commission[99] and the Radio Authority[100]. The ITC has a range of penalties for failures to comply with the terms of licences and codes[101], rules and guidelines. The ITC acts a posteriori (there is no previewing requirement). The Cable Authority grants cable licences.

The new Communications Act 2003 sets up a single regulator (OFCOM – Office of Communications)[102] replacing five regulators: ITC, Radio Authority, Office of Telecommunications, BSC and Radiocommunications Agency). It streamlines commercial broadcasting regulation to adapt it to digital broadcasting services. OFCOM will take its powers in December 2003.[103]

The term is 10 years for television.[104] In the case of commercial radio the Radio Authority enjoys considerable discretion, although the licence for national analogue radio services is usually 8 years. Licences for digital radio are for 12 years.[105]

The rules are laid out in the Broadcasting Act 1990 and 1996 and the Communications Act 2003. Licences for Channel 3, Channel 5 and local cable delivery systems and domestic satellite broadcasting are awarded on the basis of the applicant’s cash bid, provided it passes two thresholds, one is the “quality threshold” regarding programme standards and the other is the “sustainability test”, i.e. establishing that it is financially able to maintain the service throughout the licence period. There is therefore an important discretionary power not to award the licence to the highest bidder in exceptional circumstances. The system was therefore a hybrid of an auction (awards made on a quantitative basis: the applicant’s cash bid) and a “beauty contest” (awards were made on a qualitative basis: provided a quality threshold and a sustainability element).[106] Licences for digital services were awarede on 24 June 1997 by the ITC following criteria set out in the Broadcasting Act 1996.[107] The auction was in the form of a sealed bid. Due to uncertainty about future revenue to be raised through auctions, the UK government fixed in advance a percentage of the revenues to be paid for each license. Bidders bid a cash sum which was indexed and to be paid annually. The bid represents an amount to be paid annually in addition to an annual percentage of the revenue of a broadcaster.

The licensing of commercial radio is similar to the procedures used for the lincensing of Channel 3. National licences are allocated by auction (although the law makes provisions in exceptional circumstances for an award to go to a lower bidder). Local radio licences are awarded on the basis of a “beauty contest” type of procedure.

In the UK there are three categories of licences: terrestrial licences (category A); satellite television services, licensable programme and commercial additional services licences (category B) and cable and local delivery services licences (category C). The tariffs for the fees for category A relate to the licensee’s qualifying revenue, whereby licensees pay proportionally more fees as the revenue increases (from advertising, sponsorship, subscription if applicable, etc.). The tariff for category B is less, and for category C it depends on the number of homes in the licensed area.[108]

A licence can be withdrawn temporarily or indefinitely if the licensees fail to fulfil obligations or there is an infringement of the law. ITC staff monitor programmes and advertising standards with the help of audience research. If any licensee fails to comply with the conditions set out in the Broadcasting Act and the licence on the requirement of the codes, the ITC can impose penalties ranging from warnings and the requirement to broadcast an apology to fines and the shortenoing or the withdrawal of a licence. The ITC has a range of remedies to discipline licensees. There are “lesser sanctions” (to direct broadcasters to air an apology or a correction or not to repeat a programme) and “greater sanctions” (to impose a penalty, to shorten the licence period or to revoke a licence). The investigation of breaches is delegated to the Senior Management Group of the Commission’s staff and then this group report to the Commission. The licensee is given the chance to make written representations before a decision on a breach is taken. In cases where greater sanctions may be applied, the case will be delegated to a subcommittee of members of the Commission, or in some cases considered by the full Commission.[109] In 1999 the ITC revoked a licence for the first time.[110]

Conclusions

- A licence to broadcast must be obtained from an administrative authority or authorities. Decisions can be appealed before administrative courts.

- Licensing allows to check the qualifications of the applicant and to attach conditions (set out in the statutes and also contractually) in exchange for use of scarce spectrum

- The strong tradition of PSB has spilled over commercial licences in the sense that there is a measure of public service duties attached to the conditions of licence to private broadcasters.

- Across the EU countries commercial broadcasting is a relatively new phenomenon

- The law contemplates sanctions in case of non-fulfilment of conditions attached to a licence. The system of sanctions is already well developed in the law in most EU countries, making it less necessary to elaborate on these conditions in the licensing contract.

- Most of the licensing authorities are also entrusted with the task of supervising broadcasters.

- Regulatory authorities are autonomous from government. Experience across the EU countries suggests that independence depends in important measure on the staffing of the regulator.

- The transition to digital is bringing important changes to the regulation of broadcasting. There is a tendency to create single regulators of converged media.

- The digital multi-channel world is one in which a few channels (some of them commercial) will have strong public service duties while numerous additional channels will have less onerous obligations attached to their licences.

List of abbreviations

CSA – Higher Council of the Audiovisual (France or French speaking community in Belgium)

PSB – Public Service Broadcasting or Broadcaster NRTC – (Greek) National Radio and Television Council

Sources

Eric Barendt, Alison Firth (editors): The Yearbook of Copyright and Media Law 2000, OUP, Oxford: 2000.

Eric Barendt and Lesley Hitchens: Media Law: Cases and Materials, Longman, Harlow (England): 2000.

Sari Galapo (report compiler): Auctioning Frequencies for Broadcasting: Report of the Round-Table Conference on the Auctioning of Frequencies for Broadcasting, Amsterdam, 8 May 1999, Institute for Information Law, Amsterdam: 1999.

David Goldberg, Tony Prosser and Stefaan Verhulst: Regulating the Changing Media: A Comparative Study, OUP, Oxford: 1998.

Wolfgang Hoffmann-Riem: Regulating Media: The Licensing and Supervision of Broadcasting in Six Countries, The Guildford Press: New York and London, 1996.

Iris journal collection available via the searchable MERLIN database of the European Audiovisual Observatory, Media Section, Council of Europe.

Bernd-Peter Lange(editor): Television in Europe: Regulatory Bodies; Status, Functions and Powers in 35 European Countries; Media Monograph No. 19, John Libbey & Company, European Institute for the Media, London: 1995.

Susanne Nikoltchev: Legal Guide to Audiovisual Media in Europe: Recent Legal Developments in Broadcasting, Film, Telecommunications and the Global Information Society in Europe and Neighbouring States, European Audiovisual Observatory, Strasbourg: 1999.

Websites of Regulatory Authorities and relevant Ministries across the 15 countries surveyed (links included as endnotes in this paper). All websites in this background paper last visited 10 September 2003.

[1] It is not the purpose of this report to address the reasoning behind the justification for the special regulation, licensing and supervision of broadcasting. For a discussion on this issue, see for example, Eric Barendt, Broadcasting Law: A Comparative Study, pages 5 to 9. For views on the matter from the United States, see: Lee C. Bollinger, “Freedom of the Press and Public Access: Toward a Theory of Partial Regulation”, (1976) 75 Michigan Law Review 1.

[2] Italian Law 223 of 6 August 1990, Article 16 (licenses) and Article 6 (the Guarantor). Important changes were introduced to this statute, however.

[3] Wolfgang Hoffmann-Riem: Regulating Media: The Licensing and Supervision of Broadcasting in Six Countries, page 288.

[4] See Lentia v. Austria (and also, Groppera AG v. Switzerland), cases decided by the European Court of Human Rights in Strasbourg.

[5] Exclusions vary across the EU countries. For example, in the Fourth Television Case the German Constitutional Court ruled that the disqualification of political parties, public employees and public law organisations apart from churches written in the law was justified on the principle that their control of a channel would mean that it was not in fact independent from the state. In the UK the Broadcasting Act 1990 disqualifies the following applicants: individuals who are not EU nationals residing in the EU or not ordinarily resident in the UK, corporate bodies not set up under the laws of an EU country with a registered or head office or principal place of business within the EU, local authorities, political parties, other broadcasting bodies (e.g. the BBC and the Welsh Authority), and advertising agencies. In the UK the disqualification on grounds of nationality does not apply to cable licences (and a number of US companies have been able to enter the cable market in the UK). Unlike the situation in most continental European countries, churches and other religious bodies are disqualified from holding most types of licence in the UK (although the Communications Act 2003 has relaxed these requirements), but they may be awarded a non-domestic satellite licence, or a licence to provide cable programmes. Other rules are designed to prevent the circumventing of the main prohibitions: e.g. individuals who are officers of disqualified corporations, and corparate bodies in which disqualified bodies are participants with more than a 5 % interest.

[6] Eric Barendt, Broadcasting Law: A Comparative Study, page 94.

[7] Tony Ballard, “Survey of the Main Developments in the Field of Broadcasting Law in 1999” in Eric Barendt, Alison Firth (editors): The Yearbook of Copyright and Media Law 2000, page 368.

[8] E.g. the Italian Law of 6 August 1990 in Art. 16 (2) mentioned renewability of licences without further details.

[9] Amelie Blocman, “Compliance of a CSA Sanction with Article 10 of the ECHR”, Iris 2002/10.

[10] KommAustria, English information http://www.tkc.at/web.nsf/englisch/Startseite?OpenDocument

[11] Peter Strothmann, “Bill on “KommAustria” Media Authority”, Iris 2001/3.

[12] [Bundesgesetz, mit dem Bestimmungen für privates Fernsehen erlassen werden (Privatfernsehgesetz)]: Section 7: Content requirements for programming services [Inhaltliche Anforderungen an Rundfunkprogramme] http://www.rtr.at/web.nsf/lookuid/BC326D9618C2BF66C1256B5300550E4D/$file/privatfernsehgesetz.pdf (German version)

As regards the public sector, the Public Broadcasting Law provides for the operational framework for the ORF (Austrian Broadcasting Corporation) the public service broadcaster. In 2001 ORF was converted into a public law foundation. The public sector has Programme guidelines: http://kundendienst.orf.at/fakten/richtlinien/ (German version) See also: General ORF guidelines for programme presentation, programme creation and programme co-ordination on television and radio services Allgemeine Richtlinien des Österreichischen Rundfunks (ORF) für Programmgestaltung, Programmerstellung und Programmkoordinierung in Hörfunk und Fernsehen]: http://hsv.orf.at/texte/programmrichtlinien.html (German version). The Austrian Federal law is available http://www.rtr.at/web.nsf/deutsch/Rundfunk_Regulierung_Rechtsinfos_Rechtsinformationen_Gesetze_BVG-Rudfunk-Text?OpenDocument (German)

[13] www.atv.at

[14] Peter Strothmann, “Commercial Broadcasting Study”, Iris 2003/6.

[15] Albrecht Haller, “Government adopts new draft Broadcasting Laws”, Iris 2001/4.

[16] Albrecht Haller, “First Licence for National Terrestrial Private TV Channel”, Iris 2002/4.

[17] Heinz Wittmann, “New Laws on Private Radio, Cable and Satellite Broadcasting”, Iris 1997/5.

[18] Decreten Betreffende de radio-omroep en de televisie: http://internet.vlaanderen.be/ned/sites/media/gecoordineerde%20decreten2003.pdf (Dutch)

[19]Vlaams Commissariaat voor de Media (Flemish Community)

http://www2.vlaanderen.be/ned/sites/media/vcm.htm

[20] Legal Guide to Audiovisual Media in Europe, CoE 1999

[21] Dirk Voorhoof, “The Reform of Regulatory Bodies within the Flemish Community Approved by the Flemish Parliament”, Iris 1998/1.

[22] Broadcasting Decree (French Community) applicable to both public service and private broadcasting): http://www.csa.cfwb.be/pdf/Décret%20radiodiffusion.pdf

[23] There is a translation into English of The Danish Broadcasting Act ( Lov om radio-og TV-virksomhed) which is available on http://www.fs.dk/uk/acts/a_tvuk.htm

[24] The PSBs are Danmarks Radio (DR) – Danish Broadcasting Corporation http://www.dr.dk/ and TV2: http://tv2.dk/

[25] Soren Sandfeld Jakobsen, “New Radio and Television Broadcasting Act”, Iris 2003/2.

[26] The details of the liberalisation were set out in an agreement on media policy reached between the Danish government and the Danish Popular Party concluded on 3 June 2002. See: Elisabeth Thuesen, “New Agreement on Media Policy”, Iris 2002/7.

[27] Distribution in this sense is understood as the case when national or foreign programmes are distributed via cable systems unchanged and simultaneously. Owners of these cable networks, however, are under a “must-carry” obligation as regards radio and television programmes of the public service broadcasters. If there is, on the other hand, subtitling or delayed transmission then the service requires a licence. Other broadcasters can be licenced by the Satellite and Cable Board to broadcast to an area exceeding one local area, and companies, associations and local authorities can be licenced to broadcast in one local area. Licensing of broadcasting by cable is under the responsibility of the Minister of Culture. The website of the Kulturministeriet (Danish Ministry of Culture): http://www.kum.dk/

[28] On the other hand, the Satellite and Cable Board licenses satellite broadcasters under Danish jurisdiction. It makes decisions on the granting of the licence, withdrawal or the lapsing of the licence in case of non-use for one year. The licence application sent to the Board requires: (1) information on the status of the company (name and registered address, full description of the activity envisaged, finances, ownership, details of the way the company is set up and managed. Licenses cannot be issued to holders of a local broadcasting licence and those pursuing activities on behalf of the holder of a concession granted on the basis of the law relating to certain aspects of the telecommunications field or who are closely involved with such a body (2) there are technical aspects (the satellite used, the upliknk arrangements and whether the organisation falls outside the jurisdiction of any EU country, description of any encoding system if applicable, area of coverage and launch date for broadcasting) and (3) details of programmes (the required proportion of European programming, protection of minors, languages and number of broadcasting hours).

[29] The Act on YLEISRADIO OY (The Finnish Broadcasting Company Ltd.): http://www.yle.fi/fbc/actyle.shtml (English version)

[30] Broadcasting Act http://www.mintc.fi/www/sivut/english/tele/massmedia/index.html (in English)

[31] Marina Osterlund-Karinkanta, “New Legislation on Communications Market”, Iris 2002/7.

[32] Annemique de Kroon, “New Acts on Radio and Television Come into Force (in Finland)”, Iris 1999/2.

[33] In Finland, the operating licence requirements (e.g prescribed amount of domestic content) have been abolished for cable operators. Basic principles are contained in the Constitution, the laws dealing with radio broadcasting, telecommunications, cable and with the PSB. The Council of State grants licences for the operation of cable networkds and cable broadcasting services. Municipal councils are consulted in advance. The application must indicate that the applicant is a Finnish citizen or a Finnish corporation. A 5-year cable operation plan and financing calculation should also be submitted. If the applicant is an organisation the application has to be accompanied by the latest income statement and balance sheet of the applicant as well as a list of the owners, shareholders or members of the organisation or other persons or organisations with decision making power within the applicant organisation.

[34] Marina Osterlund-Karinkanta, “New (Technical) Radio Act in Finland”, Iris 2002/2.

[35] Marina Osterlund-Karinkanta, op. cit, Iris 2002/7.

[36] The CSA website http://www.csa.fr/ Organisation and functions of the CSA :

Décret n° 89-518 du 26 juillet 1989-JO du 27 juillet 1989: http://www.csa.fr/conseil/organisation/organisation_textes_decret.php (French)

[37] French Broadcasting Act (in French) http://www.legifrance.gouv.fr/texteconsolide/PCEAJ.htm

[38] Law of 17 January 1989, Art. 13, which amends Art. 28 of the law of 30 Sept. 1986.

[39] See in the French CSA website http://www.csa.fr/actualite/communiques/communiques_detail.php?id=12873

[40] Cable networks in France: the initial authorisation is delivered to the cable operator by the commune or the group of communes involved, to be allowed to broadcast via cable a Channel has to be in the programming plan issued by the CSA. The licence issued by the CSA can impose requirements on the operator: relaying of services broadcast by terrestrial operators, distribution of a minimum of programmes made by the company itslef, the allocation of a channel (full time or shared) to the communes to provide local news, the distribution of a minimum of programmes made by individuals independent of the actual cable operator or network, the payment of a fee by the operator to the commune or group of communes involved.

[41] Bertrand Delcros, “Re-allocation of Radio Frequencies”, Iris 1998/1.

[42] Legal Basis: Art. 5 GG (German Constitution): http://www.iuscomp.org/gla (available via the German Law archive in English language), and Interstate Broadcasting Agreement http://www.alm.de/bibliothek/download/RSTV_JMStV.pdf (German).

[43] For a brief review of the main constitutional cases that shape German broadcasting law see: Eric Barendt, Broadcasting Law: …, pages 21-25.

[44] Jorg Kirchner, “The Search for New Markets: Multimedia and Digital Television under German Broadcasting and Copyright Law”, E.I.P.R, 1995, 17 (6), 269-276, at pp. 269 to 271. (E.I.P.R: European Intellectual Property Review).

[45] Eric Barendt, Broadcasting Law: …, page 92.

[46]To mention an example, in Saxony and Berlin-Brandenburg there is a five-person council.

[47] In Germany, the allocation of satellite frequencies is undertaken with agreement from the states of the federation, and certain conditions must be respected (1) a number of channels are allocated to the public service broadcasters, (2) if there are enough channels available all properly registered requests are to be granted, (3) if there not enough channels available, the governments of the states of the federation undertake to reach agreements. As regards the commercial sector, each state of the federation allocates frequencies to the regulatory authorities in each state of the federation.

[48] Association of regulatory authorities for broadcasting (Arbeitsgemeinschaft der Landesmedienanstalten, ALM): www.alm.de

[49] Alexandros Economou, “New National Radio and Television Council”, Iris 2002.

[50]The Greek Ministry of Press and Mass Media: http://www.minpress.gr/

[51] Alexandros Economou, op.cit. Iris.

[52] See: Anastase N. Marinos “Audiovisual Bill”, Iris 1995/6, and Hellenic Audiovisual Institute “Call for Applications to Operate a Nationwide Television Service”, Iris 1998/6.

[53] The Irish Broadcasting Act 2001, applicable to both public service and private broadcasting: http://www.irtc.ie/br_act2001.html and the Radio and Television Act, 1988: http://www.bci.ie/act88.html

[54] Marie McGonagle, “Digital Television”, Iris 2002/4.

[55] Marie McGonagle, “Broadcasting Forum Report”, Iris 2002/10.

[56] Marie McGonagle, “Unlicensed Deflector Systems”, Iris 1997/7.

[57] Candelaria van Strien-Reney, “Timescale for Deflector Licensing Scheme Extended”, Iris 2001/6.

[58] Marie McGonagle, “Supreme Court Confirms Withdrawal of Broadcasting Licence and Defines “Advertising””, Iris 1997/9.

[59] The AGCOM (Autorita per le Garanzie nelle Comunicazioni) was set up by the Italian Law 249 of 31 July 1997.

[60] Emanuela Poli, “Establishment of an Independent Regulatory Authority for Telecommunications and Media”, Iris 1998/8.

[61] Maja Cappello, “New Deadlines for Television and Radio Digital Frequency Plans”, Iris 2001/2.

[62] Ministero delle Comunicazioni – Ministry of Communications: http://www.comunicazioni.it/index.htm /

http://www.comunicazioni.it/english/index.htm (English version)

[63] Maja Capello, “Regulation on DTT”, Iris 2002/1.

[64] See the AGCOM website, information available in English, “The Regulation of the Media in Italy” (last updated April 2002) http://www.agcom.it/eng/reports_docs/resp_reg.htm

[65] The Italian Law 223 of 6 August 1990 in Art. 16 (2) provides simply that licences are renewable without any other provisions.

[66] Italian Law 223 of 6 August 1990.

[67] There are categories of providers: (1) Content providers of digital broadcasts are defined as those persons who have editorial responsibility for the realisation of broadcasting programmes. Any person established in the EEA may apply for authorisations, provided that the authorisations do not exceed the limit of 20 % of available programmes; (2) Service providers are those who provide conditional access services through a network operator or information society services, or those who provide electronic programme guides. They must comply with the standards for digital decoders; and (3) Network operators: those who have the right to install, manage and furnish a network for electronic communcations, and specific commercial agreements regulate the relations between network operators and content and service providers. See: Maja Capello, “Regulation on DTT”, Iris 2002/1.

[68] See: Maja Capello, “Government Presents Draft Law on Broadcasting”, Iris 2002/10.

[69] Emanuela Poli, “New Licensing Regulation Adopted”, Iris 1999/1.

[70] Statutory Order 73/91, Art. 4

[71] Le Service des Medias et de l’audiovisuel (SMA): http://www.gouvernement.lu/gouv/fr/sip/media/index.html

[72] Marc Thewes, “New Policy Paper on Reform of Electronic Media Act”, Iris 2002/6.

[73] Loi du 27 juillet 1991 sur les médias électroniques (Broadcasting Act): http://www.etat.lu/SMA/text-sma/french/legx1.htm (French)

[74] Commissariaat voor de Media : http://www.cvdm.nl/pages/home.asp?flash=5

[75] http://www.netherlands-embassy.org/article.asp?articleref=AR00000429EN Dutch-language commercial companies include RTL 4 and 5 (which broadcast in Dutch from Luxembourg), Veronica, SBS6, TV10 and the Music Factory. It should be mentioned that RTL was in operation from Luxembourg before the time Dutch law authorised the licensing of private broadcasters based in the Netherlands. In addition, cable operators must hold a licence obtained from the PTT Office and the Ministry for Education, Culture and Science. Cable operators carry national, local and regional broadcasts, as well as foreign. Cable operators are required to listen to the views of the programme council, a body of citizens representative of the public, and they do not have participation in management.

[76] Mediabesluit (Stb. 1987, 573) (Media Decree, applicable to both public service and private broadcasting): http://www.cvdm.nl/documents/mediabesluit.pdf and in English version: http://www.cvdm.nl/documents/mediadecree.pdf

[77] The legislation on broadcasting in the Netherlands: Mediawet (Stb. 1987, 249) (Media Act, applicable to both public service and private broadcasting): http://www.cvdm.nl/documents/mediawet.pdf and it is available in English / http://www.cvdm.nl/documents/mediaact.pdf

[78] In the Dutch PSB sytem programs are provided by broadcasting associations representing a social or religious grouping. The broadcasting associations are as follows AVRO (general), NCRV (Protestant), VARA (social-democratic), KRO (Catholic), TROS (general), VPRO (progressive), and EO (Protestant). These are private organisations that are publicly financed. See Wilfred Steenbruggen, “No New Entrants in Dutch Public Broadcasting System until 2005”, Iris 2002/8.

[79] Marieke Berghuis, “Dutch Council of Ministers Accepts Procedure for DVB-T Licensing”, Iris 2001/7.

[80] Nico van Eijk, “New Criteria for Allocation of Radio Frequencies in the Netherlands”, Iris 2003/1.

[81] Alta Autoridade para a Comunicao Social, AACS (High Authority for the Mass Media): http://www.aacs.pt/index.html and http://www.aacs.pt/english/Default.htm (English version)

[82] Aprova a Lei da Televisão Lei n.º 31-A/98, de 14 de Julho (Portuguese Television Act): http://www.icp.pt/template20.jsp?categoryId=2566&contentId=12763 http://www.icp.pt/template20.jsp?categoryId=5522&contentId=17220 (English version) Basic Telecommunications Law http://www.icp.pt/template20.jsp?categoryId=5147&contentId=16668 (Law no. 91/97, of 1 of August); on the payment of fees see http://www.icp.pt/template20.jsp?categoryId=7231&contentId=16687 (Order no. 1230/99, of 25 of January) As regards tariffs for licences to radio broadcasters http://www.icp.pt/template20.jsp?categoryId=5509&contentId=17215; see also http://www.icp.pt/template20.jsp?categoryId=5511&contentId=17217

And with regard to television broadcasters http://www.icp.pt/template20.jsp?categoryId=5528&contentId=17233

[83] The law is available on http://www.icp.pt/template20.jsp?categoryId=5439&contentId=17172 (English) further amendments are available in Portuguese. The following material is also available in English: see also Radioelectric licensing regulations applicable to the sound radio broadcasting http://www.icp.pt/template20.jsp?categoryId=36054&contentId=48657 (decree-law no. 126/2002, of 10 of May). Licensing regulations for radiobroadcasting stations and attribution of licences : Decree-Law no. 130/97, of 27 of May http://www.icp.pt/template20.jsp?categoryId=5451&contentId=122578 , subject to amendments Statement of Rectification no. 11-A/97, of 30 of June http://www.icp.pt/template20.jsp?categoryId=5451&contentId=17186

[84] See Procedures framework for licensing, security and technical conditions for governing broadcasting stations http://www.icp.pt/template20.jsp?categoryId=5457&contentId=121920 (English); Regulation for the Public Tender for attribution of Licences for Establishment and Provision of Land Digital Radio Broadcasting Networks - T-DAB Administrative Rule no. 470-B/98, of 31 of July http://www.icp.pt/template20.jsp?categoryId=5483&contentId=17201 (English)

[85] Helena Sousa, “Government Opens Bidding Process for Digital Terrestrial Television”, Iris 2001/6.

[86] As regards revocation of a licence, see, for example http://www.icp.pt/template20.jsp?categoryId=64149&contentId=101471

[87] Laws in Spain: Estatuto de la Radio y Televisión (Spanish Broadcasting Act), Law 4/1980 of 10 January 1980: http://www.televes.com/espanol/textoslegales/41980.htm (Spanish) and Ley de la Televisión Privada (Private Television Act), Law 10/1988 of 3 May 1988 http://www.setsi.mcyt.es/legisla/radio_tv/ley10_88.htm (Spanish).

[88]Ministerio de la Presidencia: http://www.mpr.es/ As regards cable, the Ministy of Transport, Tourism and Communication is responsible for issuing licences. Only terrestrial television is considered a public service. Satellite broadcasting is operated directly by RTVE, or indirectly through a public service franchise. Franchises are awarded by the government on the basis of technical possibilities offered by the satellite serices and the economic viability of the plans submitted by the applicants.

[89] Audiovisual Council of Catalonia

http://www.audiovisualcat.net/home/box0ing.html (English); established according to the CAC Act 2000 http://www.audiovisualcat.net/aboutcac/act.html

[90] Alberto Pérez Gómez, “The Granting of Private TV Licences by the Government in 1989 Considered Lawful by the Supreme Court”, Iris 1998/1.

[91] Alberto Pérez Gómez, “Amendment of several provisions relating to media law”, Iris 2003/2.

[92] Radio- och TV-verket (Swedish authority for radio and television, the state licensing and supervisory authority): http://www.rtvv.se (Swedish) or in English version http://www.rtvv.se/english/index.htm

[93] Jan Rosén, “Digital Terrestrial Broadcasting”, Iris 1999/5.

[94] Swedish Radio and TV Act ( Radio-och TV Lag)

http://www.rtvv.se/english/pdf/rtvact.pdf

[95]Kulturdepartementet (Ministry of Culture – Media Division): http://kultur.regeringen.se and http://kultur.regeringen.se/inenglish/responsibility/media.htm (English version)

[96] In Sweden cable and satellite require only to comply with regulation in force, not a licence. However, cable and satellite channels must nofity the Radio and Television authority of the invidual legally responsible for what is transmitted in the programmes. Cable operators transmitting to more than 100 homes are obliged to carry the PSB channels. Satellite broadcasters are obliged to register with the Patent Office. The Satellite Act applies to transmissions which can be received in a country of the EEA, as long as the satellite company is domiciled in Sweden.

[97] Helene Hillerstrom, “Report on digital broadcasting”, Iris 1996/4.

[98] The public sector is the BBC, which is essentially a self-regulatory body with the obligations placed on it by the Royal Charter and the Licence and Agreement. The BBC Charter: http://www.bbc.co.uk/info/BBCcharter/charter/index.shtml and the BBC guidelines: http://www.bbc.co.uk/info/bbc/corp_info.shtml

[99] Independent Television Commission (ITC): http://www.itc.org.uk/

[100] The Radio Authority: http://www.radioauthority.org.uk/index.html

[101] The ITC Programme Code: http://www.itc.org.uk/word_docs/prog_code01.doc and the Broadcasting Standards Commission has a code as well: Codes of guidance: http://www.bsc.org.uk/pdfs/research/bsccode.pdf

[102] OFCOM – transitional website: http://www.ofcom.org.uk/

[103] website of the UK Department for Culture, Media and Sports http://www.culture.gov.uk/global/press_notices/archive_2003/dcms83_2003.htm

[104] Broadcasting Act 1990, s. 20.

[105] Broadcasting Act 1996, s. 58 (1).

[106] See “Auctioning Frequencies for Broadcasting”, Amsterdam Report, pages 10-11: in the case of Channel 3 there were 40 bidders. 27 passed the content threshold and 3 of the highest bids were considered unsustainable. Half the licences auctioned were not awarded to the highest bidders. In the case of Channel 5, a second bid took place after a single bid in a first auction was considered inadequate. In the second auction 4 bids were made, the highest for GBP 36 million and the lowest for GBP 2 million. The Channel 5 licence was awarded to one of the two bidders for GBP 22 million who fulfilled the threshold requirement.

[107] Tony Prosser, “Licences for Digital Terrestrial Television Awarded by Regulator”, Iris 1997/7.

[108] Tony Prossser, “ITC Licence Fees 1998”, Iris 1998/3.

[109] Tony Prosser, “Revised Procedure for the Application of Statutory Sanctions”, Iris 2001/2.

[110] The licence of MedTV, a satellite television service for a Kurdish audience, broadcasting throughout Europe and based in the UK. MedTV had broadcast inflammatory statements encouraging acts of violence in Turkey. See: Tony Prosser, “Regulator Revokes Licence of Satellite Broadcaster”, Iris 1999/7.

Country	Licensing authority	Authority covers whole country	Licensing authority involved in supervision	Period of licence
Austria	KommAustria	yes	yes	10 years
Belgium	CSA for the French-speaking Community; Flemish Media Authority for the Dutch-speaking community	no	yes	9 years
Denmark	Radio and Television Board set up by the Minister of Culture + Telecommunications Company + local administrative area	yes	Other bodies for supervision	Max 7 years for television; Max 5 years for radio
Finland	Council of State	yes	Other bodies for supervision	Max 10 years
France	CSA	yes	yes	Max 10 years
Germany	Entities in each state of the federation, LMA – Landesmedienanstalten	no	yes	Varies according to the state
Greece	NRTC	yes	Other bodies for supervision	4 years
Ireland	IRTC + Minister for Communications	yes	Other bodies for supervision	7 years
Italy	AGCOM + Ministry of Communications	yes	AGCOM supervises	12 years
Luxembourg	Ministry of Communications	yes	yes	CLT holds a licence until 2010
The Netherlands	Media Commission	yes	yes	5 years
Portugal	High Authority for the Mass Media + Council of Ministers	yes	yes	15 years
Spain	Ministry of Transport, Tourism and Communications + RETEVISION + entities in each autonomous region	no	yes	10 years
Sweden	Radio- och TV-verket (Swedish authority for radio and television)	yes	yes
United Kingdom	OFCOM	yes	yes	10 years for TV, 8 for analogue radio, 12 for digital radio

Licensing broadcasters in the 15 member states of the European Union

Introduction

Common elements to the licensing regimes of all countries surveyed

Survey of licensing in the 15 EU countries

Austria

Germany:

Conclusions

List of abbreviations

Sources