On August 12, 2015, the Italian Communication Authority (“AGCOM“) published on its website the awaited Resolution no. 226/15/CONS, setting forth the new regulation (“New Regulation“, available here) on disputes between electronic communication network and services providers (“Providers“)
By way of introduction, the Providers are not compelled to sue their counterparties before the AGCOM. They may choose to resort to the relevant judicial authorities, also when a proceeding before AGCOM is pending for the same claims.
However, the involvement of AGCOM in the resolution of disputes between Providers has been very substantial during last years, mainly because the Providers commonly establish contractual relationships by which they are obliged to appeal to AGCOM before starting a judicial proceeding. This also depends on the fact that the proceedings before AGCOM have a significantly lower duration (normally 4 months) compared to the judicial proceedings before the ordinary courts.
The New Regulation, adopted after a long-lasting public consultation with the stakeholders (the summary of the relevant contributions are available here; see also our previous post on the matter) introduces significant changes to the previous regulation (issued by means of Resolution no. 352/08/CONS – “Previous Regulation“), particularly on the following topics:
- Scope of application: the Previous Regulation applied only where two Providers were involved (i.e., entities subject to the general authorization system set out, pursuant to the relevant EU Directives, under Section 25 of the Electronic Communications Code). Instead, the New Regulation applies also when the parties are a Provider and an entity, public or private concessionaires, which are the owners/managers of the relevant infrastructures (roads, towers, etc.), but only if both parties specifically agree to be subject to AGCOM’s jurisdiction. Such extension of the scope of application, as highlighted by the commentators and the participants to the public consultation, will determine the attribution of a decision-making power to AGCOM in a very sensitive sector, because the networks and infrastructures are commonly built by private concessionaries with founds granted by the national government and EU institutions, so that a concrete risk of bribery is around the corner.In this regard, one of the stakeholder has drawn the attention to the possibility to appeal to AGCOM also when only one of the parties wishes to do so. According to a number of commentators such position is very reasonable, considering the heavy burden suffered by the judicial authorities, particularly when a public entity is a party of a judicial proceeding. Furthermore, it is worth noting that the New Regulation maintained, in the definition of Provider, also the suppliers of “pay radio-TV services“, in accordance with the ECJ Case No. C-475/12 of April 30, 2014, stating that “the provision of a pay programs-bouquet constitutes an electronic communication service“.
- Enhancing the role of the AGCOM officer (“responsabile del procedimento“): pursuant to Sections 9 and 11 of the New Regulation, the AGCOM officer, on request of one of the parties, may propose one or more alternative solutions for the possible settlement of the dispute. Such innovation is aimed at avoiding unnecessary lengthy procedures, thus making the resort to AGCOM even more appealing. This is also reinforced by a provision where if AGCOM’s final decision is equal to the AGCOM officer’s settlement proposal, the party who refused the proposal without legitimate grounds is obliged to pay all the relevant expenses of the procedure.
- “Regulation by Litigation“: Section 3 of the New Regulation establishes that, if one party sues the other before the judicial authority after the introduction of a proceeding before AGCOM, the same AGCOM is entitled to issue a “general interpretative act“, if the questions are particularly relevant and the proceeding before AGCOM would have been exhaustive in connection with the facts and the legal issues arisen.
Finally, it is worth noting that AGCOM, in the context of the public consultation, acknowledged a common market practice, consisting in the provision, in the context of the agreements between Providers, of a duty to convene a Steering Committee before appealing to AGCOM.
In this regard, AGCOM warned the parties on the formulation of the relevant clause, which shall be detailed in terms of timing, scheduling of the meetings, etc. In the past, indeed, one party called for the Steering Committee, whilst the other party directly appealed to AGCOM and the relevant contractual procedure (which is welcomed by AGCOM, as it is aimed at reduce disputes) was unclear.