The Italian Supreme Court (Corte di Cassazione) on January 30, 2017 issued its decision no. 1547/2017 (“Decision“), which may potentially lead towards an end of the LCN (DTT channels line-up) saga.
Background. The Supreme Court Decision of February 2016.
On February 1, 2016 the Italian Supreme Court judgment no. 1836/2016 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“: see here for our latest post).
Such decision also cancelled all the activities carried out by the commissionaire (Commissario ad acta: see here for our post on Commissionaire’s report) as well as the last decision of the Supreme Administrative Court (Consiglio di Stato) n. 432/2016 that upheld the Commissionaire’s conclusions.
The Supreme Court Decision of 2017.
The Decision is based on a further action brought by the main claimant (i.e. the local broadcaster Telenorba), whose appeal aimed at assigning to local broadcasters (based on Telenorba’s analysis of the viewers’ habits prior to the switch off of the analogue TV channels) LCN positions nn. 8 and 9, allocated by AGCOM to national broadcasters.
The Italian Supreme Court rejected the appeal, based on the following:
- the Court confirmed its 2016 decision, stating that AGCOM (with the New Plan) had properly allocated LCN positions nn. 8 and 9 to national broadcasters, because the 2010 market scenario (according to which local broadcasters should have been granted with the same positions) was not effective in 2013, also in connection with viewers’ habits;
- the appeal was based on (i) the alleged breach of law of Commissioner’s resolutions and (ii) the effectiveness of the Supreme Administrative Court decision no. 432/2016, both of which are no longer in force, as the decision has been revoked and, consequently, Commissioner’s acts have been repealed.
The Current Regulatory Scenario.
The Decision implies, inter alia, that the New Plan has been explicitly restored: according to the Supreme Court, indeed, AGCOM New Plan is “definitely” correct, as regards the allocation of LCN positions 8 and 9 to national broadcaster.
However, it is worth noting that, 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.
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 New Plan 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.