Consolidated Law on Broadcasting
The radio and television system is primarily governed by Legislative Decree No. 177 of July 31, 2005 (Consolidated Broadcasting Law), as most recently amended by Legislative Decree No. 44 of March 15, 2010 (the amended version of Legislative Decree No. 177/05 is also referred to hereinafter as the "Consolidated Law"), which lays down the general principles for the provision of audiovisual and radio media services.
In further detail, Legislative Decree No. 44/2010, issued in adoption of Directive 2007/65/EC on audiovisual media services, introduced new rules governing authorizations and general provisions on advertising, European works promotion obligations, freedom of the press, corrections and the protection of minors, including with regard to non-linear (i.e., on-demand) services.
The Consolidated Law defines an audiovisual media service as a service that is under the editorial responsibility of a media service provider, the principal purpose of which is the provision of programs in order to inform, entertain or educate the general public by electronic communications networks.
Audiovisual media services include (i) television broadcasting — defined as an audiovisual media service provided by a media service provider for simultaneous viewing of programs on the basis of a program schedule, specifically analog and digital television, live streaming, webcasting and near-video-on-demand; and (ii) on-demand audiovisual media service — defined as an audiovisual media service provided by a media service provider for the viewing of programs at the moment chosen by the user and at his individual request on the basis of a catalog of programs selected by the media service provider (i.e., non-linear services, also referred to as "on demand").
The Consolidated Law identifies the following types of television market operators:
(i) media service provider: a party "who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organized";
(ii) provider of associated interactive services or conditional-access services, including pay-per-view services;
(iii) network operator.
Media service providers operating on the television market may in turn be sub-divided into three types of operators:
(a) analog television broadcaster: a party "who holds a concession or authorization on terrestrial frequencies using analog technology and who has editorial responsibility for television programs";
(b) broadcaster: a party other than an analog television broadcaster who provides linear audiovisual media services, i.e., services that are broadcast for the simultaneous viewing of programs on the basis of a program schedule; and
(c) a provider of on-demand audiovisual media services, defined as audiovisual media services for the viewing of programs at the moment chosen by the user and at user’s request on the basis of a program catalog selected by the provider (i.e., video-on-demand).
Among the new provisions introduced by the Legislative Decree No. 44/2010, special mention must be made of the following:
At the level of the primary legislation, the previous obligations relating to the share of European works broadcast and investments in the works of independent producers have substantially been confirmed. However, AGCOM decided to alleviate the obligation for linear services and the obligations for on-demand audiovisual media services by Resolution No. 397/10/CONS and Resolution No. 188/11/CONS, respectively.
Secondary Rights of the Works of Independent Producers
Primary legislation establishes the proportional criterion for the allocation of shares of secondary rights with respect to the independent producer’s actual financial participation in the development and creation phases. According to that principle, the new Regulation approved by Resolution No. 30/11/CSP governs the timing of the use of secondary rights by independent producers and the criteria for allocating the associated shares.
By July 2011, all broadcasters must adopt a self-regulation procedure governing dealings with independent producers in a spirit of fairness and non-discrimination. In addition, individual rights must be negotiated with independent producers in an autonomous manner, so as to allow maximum exploitation in all cases.
Protection of Minors
The Romani Decree extends the scope of application of the protection of minors and the Self-Regulation Code adopted by analog broadcasters to all broadcasting platforms and all service types (unencrypted and for-pay linear services and on-demand services).
Broadcasting of films restricted to those 18 years of age and similar products is permitted only on conditional-access programs, after 11:00 p.m. and before 7:00 a.m.
Broadcasting of unencrypted or pay films restricted to those 14 years of age is not permitted before 10:30 p.m. and after 7:00 a.m.
Regulation of Channels
In Resolution No. 366/10/CONS of July 15, 2010 (published in Italy's Official Journal on August 10, 2010), AGCOM laid down the automatic numbering plan for digital terrestrial television channels, assigning former analog channels with information obligations (known as "generalist" channels) the first nine positions and attributing position 7 to La7 and 8 to MTV.