On February 1, 2016 the Italian Supreme Court (Corte di Cassazione) judgment no. 1836/2016 (“Decision“) overturned the previous decision of the Supreme Administrative Court (Consiglio di Stato) that had partially invalidated the AGCOM resolution no. 237/13/CONS setting up the second LCN Plan (“New Plan“).
The current regulatory scenario
The Decision also cancelled all the activities carried out by the commissionaire (Commissario ad acta: see here our latest post on LCN “saga”) as well as the last decision of the Supreme Administrative Court n. 432/2016 that upheld the commissionaire’s conclusions.
As of today, this implies, inter alia, that:
- the New Plan has been restored; and
- pursuant to Section 9.3 of the New Plan, the LCN positions already assigned in accordance with the previous AGCOM resolution no. 366/10/CONS (setting up the first LCN plan) remain unaltered, until a new assignment will be made by the Ministry pursuant to the resolution no. 237/13/CONS.
Further actions by the main claimant (i.e. the local broadcaster Telenorba) before the Italian Supreme Court and/or the European Court of Human Rights are unlikely to be promoted and, in our opinion, would probably be unsuccessful.
Next steps of the Public Authorities
That said, it is still unclear what the next steps from AGCOM and/or the Ministry will be. Indeed:
- AGCOM may revise the New Plan. This is allowed by Section 11 of the resolution no. 237/13/CONS and might be viable option to put an end to the litigations that are still pending against the same AGCOM New Plan resolution;
- the Ministry should re-assign the LCN positions, if AGCOM does not intend to revise the New Plan, based on the criteria set out in the resolution no. 237/13/CONS;
- the Parliament may approve a law. It cannot be excluded that a new LCN plan will be adopted through Parliamentary laws and not by means of AGCOM resolutions. Although there is no specific “clue” in this respect, the adoption of a law, according to some commentators, would be advisable, given the harsh conflict among Italian Courts and the wide pending litigations on the New Plan.