Media and telecoms convergence, digitalisation, 5G licences, build-up of ultra-broadband networks: Italy's TMT regulatory regime is in a state of constant flux. Profound transition is expected when Italy will transpose into national law – by, respectively, 19 September and 21 December 2020 – two major regulatory novelties: Directive (EU) 2018/1972, establishing the European Electronic Communication Code, and the new Audiovisual Media Services Directive (Directive (EU) 2018/1808).
Within this rapidly evolving landscape, the Italian Communications Authority (AGCOM) has adopted many new regulatory measures in 2019.
With regard to telecommunications, AGCOM:
- completed the coordinated analysis of the markets for fixed-location access services (Resolution No. 348/19/CON), which defines the regulatory obligations imposed on TIM (as the operator holding significant market power in these markets in Italy, excluding the municipality of Milan) for the supply of wholesale access services on its optical fibre and copper networks. The Resolution takes into account the project for the voluntary separation of the fixed access network notified by TIM on 27 March 2018;
- defined the technical characteristics and the denominations of the different types of infrastructure used for the provision of phone services, television networks and electronic communications to end users (Resolution No. 292/18/CONS); and
- completed the analysis concerning mobile network voice call termination services and notified 12 operators who provide these services on their mobile network as holders of significant market power (Resolution No. 599/18/CONS).
In the audiovisual and media sectors, with Resolution 355/19/CONS AGCOM suspended the terms of the procedure aimed at identifying the relevant markets and any positions of dominance in the audiovisual media services sector until completion of the re-farming of the 700MHz band (1 July 2022), currently used for DTTV broadcasting.
Finally, in 2019 the Council of State concluded a long-running litigation concerning the 28-day invoicing system for landline and mobile telecommunication services adopted by the main Italian operators.
i The regulators
Two main authorities are entrusted with regulating the IT, media and telecoms sectors in Italy:
- AGCOM, established by Law No. 249/1997, is an independent administrative body empowered to regulate and supervise electronic communications, broadcasting and publishing in Italy. In 2012, Law Decree No. 201/2011 extended AGCOM's powers to postal services. AGCOM's activity follows two main directions: preserving fair competition among market operators by preventing the creation of monopolies; and protecting consumers by ensuring minimum standards of quality, pluralism and the provision of universal services; and
- the Ministry of Economic Development, through its Department of Communications. In coordination with AGCOM, the Ministry manages the radio spectrum by approving the national frequency allocation plan and by issuing the related tender procedures. Upon request by operators, it also grants authorisations for the provision of networks and ECSs, as well as for the provision of television and radio contents.
ii Main sources of law
The main sources of law in the TMT sector are:
- Legislative Decree No. 259/2003 (the Code), which implemented the comprehensive regulatory framework for ECNs and services adopted in 2002 at the EU level, including the Framework,2 Authorisation,3 Access4 and Universal Service Directives.5 In 2009, Directive 2009/140/EC, Directive 2009/136/EC and Regulation (EC) No. 1211/2009 were adopted to improve and update the 2002 regulatory framework, and the Code was amended accordingly. The Code sets out the rules governing both public and private telecommunications services, including the provision of internet-based services;
- Law No. 249/1997, which established AGCOM and set out its regulatory powers; and
- Legislative Decree No. 177/2005 (the Consolidated Text on Radio and Audiovisual Media Services), which contains the regulatory framework concerning radio and television broadcasting.
On 20 December 2018, Directive (EU) 2018/1972, establishing the European Electronic Communication Code, entered into force. It recasts the existing telecoms directives (the Framework, Authorisation, Access and Universal Service Directives). Member States have until 21 December 2020 to transpose the Directive into national law. Italy has not yet adopted the measures necessary to transpose the Directive.
On 18 December 2018, Directive (EU) 2018/1808 concerning the provision of audiovisual media services (the Audiovisual Media Services Directive) entered into force. Member States have until 19 September 2020 to transpose it. Italy has not yet adopted the measures necessary to transpose the Directive. The main points of the Directive include, in particular, the strengthening of the country of origin principle, the definition of video sharing platforms, the strengthening of child protection measures (such as more stringent prohibitions for certain types of advertising), measures against the dissemination of violent content and content instigating terrorism or racial hatred, and the introduction of a 30 per cent minimum quota for European works for on-demand audiovisual media services and the obligation to give such works prominence.
iii Regulated activities
Italian telecommunications law provides for a general authorisation regime set out in the Code. Pursuant to Article 25, Section 3 of the Code, any provider of networks or ECSs is required to obtain an authorisation from the Ministry of Economic Development. To this end, the provider must file a declaration of its intention to commence the provision of electronic communication networks or services.
Article 1 of the Code defines the notion of ECSs as those services, normally provided for remuneration, which consist wholly or mainly in the transmission of signals on ECNs (by cable, optical fibre, satellite and any other electromagnetic means).
The provider can start to operate as soon as it has filed the declaration. However, no later than 60 days from the filing, the Ministry of Economic Development must verify that the conditions and requirements are met and grant the authorisation or, where appropriate, impose a ban on the activity. The authorisation is granted for a maximum 20-year period, is renewable and can be transferred to third parties.
The authorisation grants the provider the right to negotiate interconnection with pre-existing network providers and telecommunication services operators. It also entails the right to use RFs.6
The provision of media services is also subject to an authorisation regime, as set out in the Consolidated Text on Radio and Audiovisual Media Services.
iv Ownership and market access restrictions
Italian law generally makes no distinction between Italians and foreign nationals concerning investment and ownership in the telecommunications sector. However, Article 25, Section 1 of the Code provides that restrictions on the general authorisation regime provided by law can be applied by the Ministry of Economic Development to non-EU or non-EEA citizens and enterprises.
Moreover, the Ministry of Economic Development can issue an authorisation to non-EU companies only if Italian entities would have a reciprocal right to enter the market in their country.
Access to the telecommunications sector is also affected by the general rules set out in Law Decree No. 21/2012, as implemented by Presidential Decree No. 85/2014, concerning the regulation of strategic operations in the communications sector, such as the installation of infrastructure and the provision of broadband services.
These rules give the government special powers when facing operations that could constitute a threat to national security and defence, namely, the possibility to:
- impose additional requirements related to supply safety, data security and technology transfers;
- impose a veto on the merger or demerger of a company, on its transfer or the transfer of its registered office abroad, as well as on the dissolution of a company; and
- prohibit the purchase of shares by entities other than the government, Italian public bodies or entities controlled by them in the event that the purchase of shares would result in the purchaser holding a share of capital able to compromise the interests of defence and national security.
v Transfers of control and assignments
In the telecommunications sector, both AGCOM and the Italian Competition Authority (AGCM) enforce merger control rules. Pursuant to Article 1.6(c)(11) of Law No. 249/1997, AGCM must obtain a non-binding opinion from AGCOM on proposed decisions concerning communication operators.
Italian law also provides ownership restrictions to ensure external pluralism and competition in the media sector. Pursuant to Article 43 of the Consolidated Text on Radio and Audiovisual Media Services, AGCOM exercises its control to prevent the creation of dominant positions and ensure that the anti-concentration limits provided by law are respected by companies operating in the integrated communications system (ICS).7
To this end, undertakings operating in the ICS are required to notify a proposed merger to AGCOM, which can veto the merger if it would result in the creation of a dominant position capable of harming pluralism. Any merger concluded without prior clearance by AGCOM is null and void.
As stated in AGCOM's Procedural Regulation adopted under Article 43 of the Consolidated Text on Radio and Audiovisual Media Services, AGCOM's investigations on dominant positions are articulated in two subsequent stages: market identification and analysis.8 In January 2019, AGCOM adopted Resolution No. 9/19/CONS concerning the analysis of the economic size of the ICS for 2017.
III TELECOMMUNICATIONS AND INTERNET ACCESS
i Internet and internet protocol regulation
Given the variety of internet-based services (e.g., email, mailing lists, social networks and web search engines), all attempts to provide a comprehensive internet regulation have been unsuccessful.
However, sector-specific regulation exists, for example, with regard to online piracy. The digitisation of communications has exponentially increased the ability to reproduce and distribute works online without the consent of the copyright owner. Pursuant to Article 182 bis and 182 ter of Law No. 633/1941 (Copyright Law), as amended by Law No. 248/2000, both AGCOM and SIAE, the Italian association of authors and publishers, are competent to prevent and detect online copyright violations.
In exercising its powers, through Resolution No. 680/13/CONS, AGCOM adopted the Regulation on the protection of copyright on ECNs, the first measure ever adopted in Italy to fight online piracy. The Regulation aims to protect online copyright through two complementary actions: support for the development of a legal offer of digital works, and fighting against piracy through effective, proportionate and dissuasive enforcement procedures. The Regulation is only addressed to intermediary service providers and not to end users. The Regulation ensures the provided protection only at the initiative of the copyright owner. If the owner has already filed a claim on the same matter before the judicial authority, AGCOM has to dismiss the matter.
To stop copyright breaches, AGCOM may adopt different measures. If the works that infringe copyright are on a server that is situated in Italy, AGCOM can order the hosting service provider to remove the works or to disable access to them. If the server is located abroad, AGCOM orders the mere conduit service provider to disable access to the copyright-infringing website. Moreover, AGCOM can enable redirection to a web page whose content will be determined by AGCOM itself. All the measures taken by AGCOM may be appealed before the administrative judge.
Legislative Decree No. 3541/2017 entrusted AGCOM with the tasks of monitoring the adoption by collective management organisations of appropriate governance and financial standards in relation to rights holders and users, and the granting of multi-territorial licences for copyright on musical works for online use in order to promote their cross-border dissemination. Through Resolution No. 396/17/CONS AGCOM has adopted the regulation implementing the decree.
Finally, Law No. 167/2017 introduced new provisions in the field of copyright by entrusting AGCOM with the power of adopting precautionary measures for the protection of copyright, as well as measures preventing the reiteration of copyright breaches that have already occurred.
AGCOM implemented Law No. 167/2017 by adopting Resolution No. 490/18/CONS, which significantly amends the Regulation on the protection of copyright on ECNs.
ii Universal service
The Universal Service Directive has been implemented in Italy by Articles 53–57 of the Code. These provisions state that all users on the national territory, regardless of their geographical location, shall be entitled to certain ECSs to be provided at a predetermined quality level.
Article 58 of the Code establishes that AGCOM may designate one or more undertakings as having a USO; AGCOM carries out an objective, transparent and non-discriminatory designation procedure, whereby no undertaking is a priori excluded from being designated; and until the designation, which to date has not been made by AGCOM, TIM Mobile SPA (TIM) is designated by law as having a USO.
The universal service in the telecommunications field currently includes the following services:
- the provision of access at a fixed location to the public communications network, which allows users to make and receive calls, communicate by fax, send data and have functional access to the internet;
- the supply of telephone directory services;
- the provision of public pay telephones, which also allows for free access to emergency numbers; and
- the supply of special conditions and options of service for disabled users.
In economic terms, the cornerstone of the universal service principle is the accessibility and flexibility of rates (i.e., the obligation to provide service even to unprofitable customers).
Although the concept of universal service has been extended over time to include a reference to functional internet access, it still does not include broadband services. However, through Resolution No. 113/16/CONS, AGCOM launched a preliminary investigation concerning the possibility to qualify the provision of broadband in the terms of the universal service. The results of the public consultation were summarised in June 2017 in Resolution No. 253/217.
AGCOM concluded that the EU requirements for the inclusion of broadband internet within the USO are met with reference to the 2Mbps internet connection speed, considering that such connection speed is used at a national level by at least half of all households and at least 80 per cent of all households having a broadband connection.
By Resolution No. 258/18/CONS, AGCOM defined the economic conditions for the supply of universal services to low-income users.
iii Restrictions on the provision of service
Although there is no law in Italy that specifically regulates network neutrality, the latter has become a growing concern in AGCOM's agenda. Network neutrality is the principle according to which there should be no discrimination in the treatment of internet data based on the content, device, application, origin and destination of the content.9 In 2011, AGCOM launched a public consultation entirely focused on net neutrality, the results of which were summarised in Resolution No. 714/11/CONS.10
Network neutrality is challenged by the spread of forms of traffic management, which implies the treatment of bytes transmitted over communications networks.
The respect of the net neutrality guarantees provided by European Regulation No. 2015/2120 is monitored by AGCOM. Regulation No. 348/18/CONS establishes the right of end users to use terminal equipment of their choice and to enter into agreements with ISPs that do not limit the exercise of this right (the 'free modem' right). ISPs cannot refuse to connect to the network the terminal equipment chosen by the user, nor can they impose additional charges or unjustified delays on end users.
With Resolution No. 68/18/CONS, AGCOM issued a warning against Vodafone for imposing a fee to access the internet from a mobile network in tethering mode, considering that this entails a restriction to the user's freedom to choose the device from which to access the internet.
Additionally, the monitoring and supervisory activities carried out by AGCOM also concentrated on traffic management measures, as well as on the supply of 'specialised services'.11 With regard to zero-rating offers (i.e., those offers where an ISP applies a zero price to the data traffic associated with a particular application or class of applications (and the data does not count towards any data cap in place on the internet access service)), AGCOM supervisory power focused on inducing providers to alter their contractual conditions, removing elements of potential incompatibility with EU Regulation No. 2015/2120.12
Finally, AGCOM is aware of the possibility that EU network neutrality regulations may hinder the deployment of 5G, given that 5G services will rely on a core feature called 'network slicing', which allows a network operator to provide dedicated virtual networks with functionality tailored to different services or customers over a common network infrastructure.13 However, under Regulation No. 2015/2120 the principle of net neutrality does not prohibit an ISP from adopting reasonable traffic management measures. Such measures are considered to be reasonable as long as they are not discriminatory, they are proportionate and they are not based on commercial reasons, rather on technical requirements that pertain to specific traffic categories. AGCOM seems to suggest that network neutrality's influence on the deployment of 5G will likely be determined by how the possibility to adopt reasonable traffic management measures will be interpreted, in an effort to accommodate network slicing and other new business models needed to support the deployment of 5G, yet without compromising the principle of network neutrality.14
Liability of ISPs
As regards the liability of ISPs, pursuant to Article 17 of Legislative Decree No. 70/2003, ISPs are not subject to a general monitoring obligation with regard to content uploaded by their users that ISPs transmit or store; nor are they subject to a general obligation to actively seek facts or circumstances indicating illegal activity. However, when informed of any unlawful conduct or information provided by recipients of their service, they must promptly inform the competent judicial or administrative authority. In addition, upon request by the authorities, they must promptly prohibit access to illegal content. Failure to comply with this requirement may result in their civil liability.
Measures against unsolicited phone calls, faxes, emails and texts
Presidential Decree No. 178/2010 established a Public Objections Register. The Ministry of Economic Development – Department of Communications has entrusted the management of the Register to the Ugo Bordoni Foundation (FUB). Anyone, whether a natural or legal person, whose telephone number is listed in public telephone directories can subscribe free of charge to the Register to stop receiving unsolicited sales and marketing calls.
If, notwithstanding the subscription to the Register, an interested person still receives unsolicited calls, he or she can seek the intervention of the Authority for the Protection of Personal Data or a judicial authority.
Article 130 of Legislative Decree No. 196/2003 protects consumers against unsolicited advertising through email, fax or SMS (such as spam) by requiring their prior consent to the use of personal data for commercial purposes.
On 4 February 2018, Law No. 5/2018 (the Telemarketing Law) entered into force, introducing new provisions on the functioning of the Public Objections Register. The main feature of the reform is the possibility to be included in the Register also when using mobile numbers and landlines not registered in telephone directories.
Law No. 43/2015 converted into law the Anti-Terrorism Decree.15 It contains urgent measures for the fight against international terrorism. To protect national security, the Law introduces measures to counter proselytising activities organised through the use of the internet. The use of IT tools is considered an aggravating circumstance for crimes related to terrorism or incitement to terrorism committed through IT tools. The Law also provides that the Italian Postal and Communications Police must constantly update a blacklist of websites that are being used for terrorist purposes in order to facilitate police investigation.
With regard to the limitations to self-expression on the internet, there is no criminal provision that specifically targets online defamation. Article 595 of the Italian Criminal Code contains the general provision on defamation. However, it does not refer to defamation committed through the use of the internet, not even as an aggravating circumstance.16
Data protection, privacy and the right to be forgotten
The protection of personal data in electronic communications in Italy is regulated by GDPR,17 which entered into force on 25 May 2018, and the Privacy Code,18 as amended by Legislative Decree No. 101/2018.
The GDPR has significantly changed the current Italian – and broader European – data protection framework. As a general rule,19 any operator in charge of collecting and processing personal data can do so only after obtaining the written consent of the person to whom the data relates or when one of the conditions set forth in Article 6 of the GDPR occurs (for example, when processing personal data is necessary to comply with a legal obligation of the controller; or to protect the vital interests of the data subject). To this end, the operator has to provide the user with any relevant information concerning the purpose of the data collection, including the rights of the user to access such data and to demand its modification or deletion.
Pursuant to Article 32 of the GDPR, network operators are subject to a general obligation of custody to reduce the risk of destruction, loss or unauthorised access to personal data.
Traffic data, meaning data processed for the purpose of conveying a communication on an ECN, must be deleted by the network operator as soon as the communication is complete.20 However, the operator is allowed to store it for a longer period of time – but in any case not longer than six months – if this is necessary for invoicing purposes. Moreover, the operator must store traffic data for up to 24 months for the prosecution of criminal offences.
Pursuant to Article 126 of the Privacy Code, location data can only be processed when it is made anonymous (or with the prior consent of users, revocable at any time) and to the extent and for the duration necessary for the provision of the service requested.
Failure to comply with these requirements may result in the application of both administrative fines and criminal sanctions.21
The operator processing the data has to inform AGCOM, the Italian Privacy Authority and the data subject about any risk of breach of network security, or about any breach of personal data that has occurred.
Privacy concerns also underlie the right to be forgotten, which is the right for individuals to have information about themselves deleted from the internet so that they cannot be found through search engines.22
At the national level, one of the most prominent judgments in this field was rendered by the Court of Cassation in Google v. Vivi Down,23 concerning the broadcasting on Google Video of a video showing some boys humiliating a fellow student suffering from Down's syndrome, and also insulting the Vivi Down association. Google's managers faced criminal charges for failing to prevent online defamation and for having unlawfully processed personal data concerning the health condition of the boy. However, in the end, they were acquitted of all charges.
The Court of Cassation specified the characteristics of the right to be forgotten in a case24 concerning the breach of such right by both the director and the publisher of an online newspaper due to the prolonged permanence online of an article on a criminal issue that had involved the plaintiffs in the past and was still pending. The Court specifically identified the unlawful processing of personal data in the maintenance of a direct and easy access to that article through the search engine, and not in the original methods of publication or in its archiving.
The Court of Cassation identified some balancing criteria aimed at settling the conflict between the right of an individual to be forgotten and the opposing right for the media to report news.25 The Court established certain conditions that legitimate a compression of the right to be forgotten, such as:
- the contribution made by the news to a debate in the public interest;
- reasons of justice, police matters, protection of rights and scientific, educational or cultural freedom;
- the status of the public person of the subject involved;
- the truthfulness, actuality and continence of the news; and
- the granting of the right of reply before the spreading of the news.
In a very recent case,26 the Court of Cassation further specified these balancing criteria by stating that, when facing a conflict between the right to be forgotten and the opposing right for the media to report news, the judge has to assess the public, concrete and current interest at the mentioning of the identifying elements of the people involved. This mention can be considered legitimate only if it refers to people who are in that moment subject to public interest, both for their notoriety or for their public role; otherwise, the right of such individuals to privacy with respect to past and hurtful events that have no trace in the collective memory has to prevail.
Following the judgment in Google Spain, Google has adopted a template to request the removal of search results deemed to be inappropriate, offensive or harmful to privacy. Alongside this measure, pursuant to Article 17 of the GDPR, data subjects have a right to obtain from the controller erasure of their personal data, inter alia, where the personal data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, the data subject withdraws consent on which the processing is based or the personal data has been unlawfully processed.
According to Article 140 bis of the Privacy Code, these rights can be enforced before the Italian Privacy Authority or, alternatively, before the judicial authority.
Interception of electronic communications
Law No. 43/2015 modified Article 226 of the implementing provisions to the Code of Criminal Procedure. When it is necessary to acquire information concerning the prevention of crimes having, inter alia, terrorist purposes, committed through the use of electronic devices, the public prosecutor may authorise the interception of communications for a maximum of 40 days. The prosecutor can also authorise the storage of traffic data for up to 24 months and the acquisition of all useful information from telecommunications operators.
Protection of children
Pursuant to Article 34 of the Consolidated Text on Radio and Audiovisual Media Services, as amended by Legislative Decree No. 120/2012, it is, in principle, prohibited to broadcast programmes that, taking into account the time of the broadcast, could seriously harm the physical, psychological and moral development of children, especially if the programmes contain violent or pornographic scenes.
Nevertheless, such programmes can be broadcast upon the request of broadcasting companies provided that they include a parental control system. In particular, they must be marked with an audio and visual signal at the beginning of and during the broadcast.
Legislative Decree No. 203/2017 has entrusted AGCOM with the task of classifying (from the perspective of children's protection) video games and audiovisual works to be spread online. Through Resolution 186/18/CONS, AGCOM issued a public consultation on this topic. By Resolution No. 74/19/CONS, AGCOM adopted the related regulation. In 2003, representatives of ISPs adopted the Italian Self-Regulation Internet and Underage Code, which contains specific provisions to target online child pornography. In June 2017, the Parliament adopted Law No. 71/2017, the first specific law in Italy targeting cyberbullying,27 which introduces measures to prevent the cyberbullying phenomenon, especially by emphasising the role of schools.28 Moreover, a victim of cyberbullying or her or his parents can demand a website operator to remove or obscure any personal data from the internet. If the operator does not comply with the request within 48 hours, the victim can lodge a complaint before the Italian Privacy Authority.
Cybersecurity is a growing policy concern in Italy. The threats in cyberspace can take different forms such as cybercrime, cyberespionage and cyberterrorism. In 2013, the government strengthened the protection of Italian cyberspace by creating a three-layer structure.29 The first layer is embodied in the Inter-ministerial Committee for the Security of the Republic, which is in charge of elaborating general strategies for national security. On the middle layer, the Decree establishes the creation of a permanent body in charge of connecting all administrations and regulatory bodies involved in the pursuit of strategic cybersecurity objectives. Finally, the Inter-ministerial Centre for Situation Assessment and Strategic Planning coordinates the recovery of systems functionality after an attack.
The National Anti-Crime Computer Centre for Critical Infrastructure Protection is a branch of the Italian Police in charge of surveillance of the cybersecurity of infrastructure in sensitive areas, such as defence, telecommunications and energy.
In June 2016, within the framework of the National Conference on Cyber Warfare held in Rome, the creation of the first European Centre for Advanced Cybersecurity, based in Italy, was announced.
In 2017, the government adopted the national plan for cybersecurity based on 11 points that cover all aspects of individual, state, industrial and military security.
The legal landscape in this sector has also been impacted by the Directive EU/2016/1148 on Security of Network and Information Systems (the NIS Directive), implemented by Legislative Decree No. 65/2018. The NIS Directive is the first EU-wide legislation on cybersecurity and introduces significant fines based on a percentage of global turnover, similar to the regime imposed for antitrust violations. It also identifies the authorities responsible for implementing the measures required by the directive for economic sectors that are considered to be strategic.
IV SPECTRUM POLICY
Radio spectrum is an essential resource for telecommunications networks. It is the basis for wireless communications, but it is also key in areas such as broadcasting, transport, defence, environmental protection and energy. Due to the increasingly urgent demand for this scarce resource, spectrum policy has become crucial at both European and national level.
The management of the Italian RF spectrum is entrusted to the Ministry of Economic Development and AGCOM. The Ministry elaborates the national frequency allocation plan, which divides radio spectrum into frequency bands and assigns each band to services and users.
On this basis, AGCOM adopts the national frequency assignment plan, which determines the location of radio stations and the frequencies assigned to each of them. The final allocation of frequencies and the granting of the related rights of use is made by the Ministry of Economic Development following a call for applications by network operators. Both the allocation and the assignment of RFs has to be based on objective, transparent, non-discriminatory and proportionate criteria.30
Implementing Decision (EU) No. 899/2017, the Budget Law for 2018 entrusted AGCOM with the definition of procedures to reassign the 700MHz frequency, currently used for DTTV broadcasting, to mobile broadband wireless services for the development of 5G (re-farming), and the adoption of a new frequency assignment plan for frequencies to be allocated to DTTV, to provide a new framework for the DTTV service.
In 2017, the Ministry of Economic Developments launched a selection for the realisation of 5G trials in five big and medium-sized cities for a duration of four years, namely Milan, Prato, L'Aquila, Bari and Matera. The requirements for the trials are (1) efficient use of the 3.7–3.8GHz band; (2) adoption of technical solutions within those offered by 5G (including network slicing); and (3) implementation of at least one of the three use cases defined by the International Telecommunication Union (i.e., eMBB, m-MTC, and URLLC). The trials have been awarded to three groups of companies: (1) Vodafone, in technical partnership with industry and the Public Administration; (2) WindTre and Open Fiber; and (3) TIM, Fastweb and Huawei Italy.
Through Resolution 290/18/CONS, AGCOM adopted the new frequency assignment plan for frequencies to be allocated to DTTV. The plan indicates 15 new digital terrestrial networks: 10 national networks in the UHF band, four local networks in the UHF band and a regional network in the III VHF band.
The Budget Law for 2019 eliminated the restriction that required one-third of the available frequencies to be assigned for the dissemination of information of local interest. The previous frequency assignment plan was therefore updated with AGCOM Resolution No. 39/19/CONS.
ii Flexible spectrum use
Following the European trend,31 the Italian regulatory framework concerning spectrum use has become more flexible. The intention is to promote spectrum sharing, not necessarily limited to a particular frequency band, as a spectrum management tool.
In July 2015, the Ministry of Economic Development, together with FUB, started an experiment on the 2.3GHz band, comprising the full sharing of spectrum by licensed and unlicensed operators.
On the basis of the results of this experiment, through Resolution No. 121/16/CONS AGCOM launched a public consultation concerning the licensed shared access to radio spectrum. The consultation concerned the extent to which a public or private frequency owner should share the portion of the spectrum that is not being used with one or more licensees on a voluntary or mandatory basis, without the risk of interferences that could impair the normal operation of its systems. The outcome of the public consultation, summarised in a document published on AGCOM's website in November 2016, showed that the participants considered the licensed shared access approach to be particularly convenient with regards to spectrum portions that cannot be quickly diverted from the use to which they are assigned or that cannot be easily released by current incumbents.
On this basis, AGCOM is currently evaluating innovative forms of spectrum sharing, such as the collective use of (unlicensed) bands under licensed assisted access.
Pursuant to Article 14 ter of the Code, owners of allocated frequencies can trade them or allow other entities to use them through a lease. The owner has to notify both the Ministry of Economic Development and AGCOM of the intention to trade such frequencies. The authorities can impose a ban on the intended transfer of frequencies if the rights to use them were obtained free of charge.
iii Broadband and next-generation mobile spectrum use
Following the Radio Spectrum Policy Programme elaborated at the EU level,32 AGCOM aims to boost the development of broadband services in Italy through efficient assignment of frequencies.
Considering the increasing market demand for wireless broadband services, AGCOM has defined the rules for the assignment of the 3,600–3,800MHz band in Resolution No. 659/15/CONS. The Resolution establishes coverage obligations to meet the demand for high-speed connectivity services to implement the national strategy for ultra-broadband.
Following the European Commission's call to make the 700MHz frequency available to mobile broadband to implement 4G and 5G technology across Europe, Law No. 205/2017 (Budget Law for 2018) regulates the process that will lead, in the four-year period running from 2018 to 2022, to the assignation of the 700MHz frequency to wireless broadband services.
Through Resolution 231/18/CONS, AGCOM established the procedures for the allocation and the rules for the use of the 5G frequencies; on this basis, in July 2018 the Ministry of Economic Development launched a national auction for the allocation of 5G frequencies. The list of companies admitted to the auction procedure was published on 6 August 2018.33 On 10 September 2018, the companies presented their initial economic offers; the auction was awarded on 2 October 2018, with offers amounting to €6.55 billion. Vodafone and Telecom have been awarded the generic batch of the 700MHz band, in addition to the reserved portion already awarded to Iliad as a new entrant in the market.
Italy is, therefore, the first European country to have assigned all the pioneering bands for the development of 5G, anticipating the terms set by the European Code of electronic communications.
Resolution No. 129/19/CONS AGCOM defined the criteria for the conversion of the rights to use frequencies for the digital terrestrial services into rights of use of transmission capacity.
In September 2018, the Chamber of Deputies launched an inquiry concerning new telecommunications technologies, with particular regard to the transition to 5G and the management of big data. The aim of the survey is to analyse the potential offered by new technologies, which can lead to significant improvements, for example, in the field of transport safety or for the functioning of smart cities, focusing on the risks connected to the more rapid circulation of data.
iv Spectrum auctions and fees
The design of the selection procedure for assigning the spectrum can have an impact on competition, particularly how the market structure will look after the assignment. As the uses of the radio spectrum have increased, the application of spectrum by the regulator has developed from a centralised subsystem, where its use was determined by the regulator, to a market-based approach where users compete for spectrum. The Italian regulatory authorities believe that competitive procedures, namely auctions, are the most appropriate means to assign RFs to interested network operators. The merits of auctions are their transparency and capacity to attract foreign capital, and the fact that they allow the legislator to set a certain threshold of financial gain.
Auctions are generally structured as an open procedure with a simultaneous multiple round-ascending mechanism. A large number of licences are simultaneously placed for sale and potential buyers call prices up during each round.
Only one operator for each group of companies is allowed to participate to avoid any risk of collusion and anticompetitive hoarding of frequencies. Participation in the auction must also be secured by an appropriate security deposit. Auction procedures have been used in Italy to assign the right of use for the 3.5GHz, 800MHz, 1,800MHz, 2,000MHz, 2,600MHz and 1,452–1,492MHz bands and, more recently, for the 5G frequencies (694–790MHz, 3,600–3,800MHz and 26.5–27.5GHz).
As for 5G, AGCOM's auction regulation promoted the efficient use of spectrum by means of innovative auction tools, such as 'use it or lease it' clauses (aimed at incentivising an efficient exploitation of spectral resources, these clauses provide that operators without frequencies in specific bands can use the frequencies in those bands that are not used by the licensees in a number of Italian municipalities included in a 'free list'), as well as 'club use' clauses (according to which each licensee can use all the awarded spectrum in areas where frequencies are not used by other licensees. To this end, each licence holder has pre-emptive rights on its assigned lot).
Moreover, the auction format included some special rules for new entrants, such as reserved spectrum, more lenient minimum coverage obligations and a right to national roaming (i.e., under specific circumstances, incumbent mobile operators that win spectrum in the 700MHz band must offer national roaming to new entrants on fair, non-discriminatory and transparent conditions). Additionally, to ensure competition between operators, a cap on the amount of spectrum that each operator can win was introduced.
AGCOM's regulation also fostered the access and the development of new players in the value chain, including infrastructure-only operators and service providers, who can collaborate with mobile networks operators to offer innovative 5G services. In particular, the obligation according to which each licensee must provide wholesale access to other players for the development of 5G services is aimed at fostering non-telcos (verticals) and their service providers to develop innovative business cases and at ensuring the widest level of 5G coverage and access for all users on the national territory (including also the deep digital divide areas), in line with the objectives of the Italian and the European framework.
i Regulation of media distribution generally
The Consolidated Text on Radio and Audiovisual Media Services sets out the rules governing the Italian broadcasting system. This regulatory framework includes different provisions for network operators34 and content providers.35
Network operators must obtain a 12-year authorisation granted by the Ministry of Economic Development. However, the authorisation does not entail the automatic allocation of RFs and the right to use them, which has to be obtained separately.
The provision of television and radio content is also subject to a 12-year authorisation granted by the Ministry of Economic Development. Television content providers are additionally required to fulfil the obligations established by AGCOM in Resolution 435/01/CONS.36
Private broadcasters have to comply with a number of limitations and obligations established by law to protect end users. They are required to organise programming based on issuer classification. Therefore, the nature of the authorisation determines the related obligations depending on whether the broadcaster has a commercial, social, information or teleshopping purpose. To this end, ICPs authorised to provide content at the national or local level are required to, inter alia, broadcast news and radio news daily, allow access to their programmes to all political actors on an equal basis and broadcast certain events considered by AGCOM as having a major importance for society, on a free-to-air basis.37
More stringent obligations are imposed on RAI SpA, the concessionaire of the public broadcasting service, which has to be provided throughout the whole national territory (i.e., servicing not only lucrative urban areas, but also rural areas).38 The new service contract between RAI and the Ministry of Economic Development was approved in December 2017 and covers the years 2018 to 2022, replacing the previous one (2010 to 2012). The new service contract focuses on information, the obligations regarding the access to the RAI offer by people with disabilities, and the obligations on broadcast advertising (in this regard, it prohibits advertisements in any form on thematic channels dedicated to children and advertisements on gambling). On the merits of the obligations regarding information, the new service contract requires, among other things, that RAI must activate 'tools aimed at combating the spread of fake news', calling for (1) the establishment of an internal permanent commission; (2) the development of specific educational and didactic content; and (3) the implementation of promotional initiatives regarding the risks deriving from the spread of fake news.
In general, concerning the regulatory interventions on the prohibition of gambling advertisements, Law Decree No. 87/2018, converted into law by Decree No. 96/2018 (the Dignity Decree), provided for a general prohibition of any form of promotional communication concerning gambling. Law No. 208/2015 attributed to AGCOM supervisory and sanctioning powers concerning gambling advertising (a competence that was previously exercised by the Customs and Monopolies Agency and by the Italian Competition Authority for the aspects connected to unfair commercial practices). With Resolution No. 579/18/CONS, AGCOM published a questionnaire aimed at acquiring useful elements for the purpose of preparing guidelines on this topic. The guidelines were approved with Resolution No. 132/19/CONS.
When it comes to the regulatory measures to fight hate speech, AGCOM, over the past few years, recorded a growing recourse to expressions of discrimination against categories or groups of people, due, for example, to their particular socio-economic status, their ethnicity, their sexual orientation or their religious beliefs. With Resolution No. 403/18/CONS, AGCOM therefore kick-started the procedure for the adoption of a regulation specifically addressing non-discrimination and the contrast to hate speech. The regulation scheme was submitted to public consultation with Resolution No. 25/19/CONS.
In 2017, AGCOM adopted Resolution No. 41/17/CONS, which identifies the relevant markets in the audiovisual media services sector pursuant to Article 43(2) of the Consolidated Text on Radio and Audiovisual Media Services. The previous procedure concluded by AGCOM in the field of ICS dates back to 2010 (Resolution No. 555/10/CONS). The aim of the resolution is to identify, in a subsequent phase, any positions of dominance or positions likely to harm pluralism in the identified markets.
The Resolution identifies three relevant markets in the audiovisual media services sector: national free-to-air audiovisual media services; local free-to-air audiovisual media services; and national audiovisual media services for payment.
However, AGCOM has specified that the second phase will not take the local free audiovisual media services market into consideration because, following the entry into force of Law No. 9/14, this specific sector has undergone several changes owing to the need to reorganise the terrestrial frequencies.
As regards online distribution of audiovisual content, the Resolution also includes providers of audiovisual online services for payment, such as Netflix. This is because they are considered to be similar to the traditional pay-TV providers, as both services are based on users' subscriptions and offer premium content. On the contrary, the provision of free audiovisual content through websites, social networks such as Facebook or Twitter and search engines such as Google, is deemed to fall outside the market definition of audiovisual media services, because the providers of free online content appear to be competing not with the traditional free-to-air broadcasters, but with the other internet operators.
Considering that the re-farming of the 700MHz band is intended to significantly change the structure of the digital terrestrial broadcasting, with significant repercussions on the offer of audiovisual media services to end users, with Resolution 355/19/CONS AGCOM suspended the terms of the procedure aimed at identifying the relevant markets and any positions of dominance in the audiovisual media services sector until completion of the re-farming of the 700MHz band.
ii Internet-delivered video content
The transition from traditional forms of media distribution and consumption towards digital converged media platforms continues to disrupt and change the commercial foundations of the entertainment and media industry. In Italy, as high-speed broadband connections become more widespread, internet video distribution continues to grow. According to the 15th Report on Communication by Censis–UCSI in 2018, the different forms of TV over internet (such as WebTV, smart TV and IPTV) have a 30.1 per cent audience (+3.3 per cent).
All of the most important TV channels have developed on-demand services that allow users to watch TV programmes online after the original broadcast. In addition to this, many operators have started to provide IPTV services. IPTV allows users to access television broadcasting networks (both in live-streaming and on-demand mode) via an internet broadband connection by using a set-top box (and not via a PC, tablet or smartphone, which can be used for WebTV).39
Although there is no comprehensive law governing the delivery of video content over the internet, by Resolution No. 606/10/CONS and Resolution No. 607/10/CONS, AGCOM has adopted two regulatory measures concerning the provision of audiovisual and radio media services on other electronic media (WebTV, IPTV and mobile TV) and the provision of on-demand audiovisual media services, respectively.
VI THE YEAR IN REVIEW
i Relevant regulatory measures
TIM's separation of the fixed access network and Resolution No. 348/19/CONS
Pursuant to Article 50 ter of the Electronic Communications Code, on 27 March 2018 TIM notified to AGCOM its project for the voluntary separation of the fixed access network, which will lead to the creation of a separate legal entity (NetCo), 100 per cent controlled by TIM. NetCO will have its own assets (access network infrastructures, electronic equipment, IT systems and personnel) to supply and maintain the network access, both in copper and in fibre, including the equipment necessary for the supply of VULA and bitstream services. The separation should ensure the equal treatment of all operators, because NetCo will act as an 'one-stop shop' access point for all wholesale services both for other authorised operators and TIM's commercial division.
The voluntary legal separation project notified by TIM was submitted to public consultation. Currently, AGCOM is completing the regulatory evaluation of the project. In the meantime, on 18 July 2019, AGCOM adopted Resolution No. 348/19/CON concerning the coordinated analysis of the markets for access services provided at a fixed location. It replaces Resolution No. 623/15/CONS.
With Resolution No. 348/19/CONS, AGCOM:
- identifies the municipality of Milan as a relevant market distinct from the rest of Italy both for the local access services market (market 3a) and for the wholesale access services market for consumer products (market 3b), due to the significant presence of electronic communication infrastructures alternative to those of TIM (open fibre) and to the level of competition registered for the access services to the wholesale fixed network;
- considering the level of competition registered in markets 3a and 3b in the municipality of Milan, it revokes the regulatory obligations imposed on TIM by Resolution No. 623/15/CONS;
- it confirms that TIM holds significant market power in markets 3a and 3b in the Rest of Italy and proposes the confirmation of TIM's regulatory obligations concerning access, transparency, non-discrimination, accounting separation, price control and cost accounting;
- introduces some regulatory changes in relation to the municipalities considered most competitive; and
- with regard to the price control obligation imposed on TIM, it defines the cost-oriented access prices for the period 2018–2021.
Resolution No. 292/18/CONS
With Resolution No. 292/18/CONS, AGCOM defined the technical characteristics and the related denominations for the different types of infrastructure used for the provision of phone services, television networks and electronic communications to end users. It imposes on electronic communication operators some transparency obligations in advertising and describing the offers, as well as contract writing requirements.
Given the positive outcome of the monitoring carried out on the implementation of the provisions of Resolution No. 292/18/CONS, with resolution No. 35/19/CONS, AGCOM definitively approved the use of the coloured symbols 'F', 'FR', 'R' in all communications to the public, in order to identify in a simple manner the various types of access to the internet, depending on the type of connection between the station and the user site.
Resolution No. 599/18/CONS
Through Resolution No. 481/17/CONS, AGCOM submitted to public consultation the new market analysis concerning mobile network voice termination services. With Resolution No. 599/18/CONS, AGCOM concluded the analysis and notified 12 operators who provided voice call termination services on their mobile network as holders of significant market power. The Resolution also establishes symmetrical tariffs for termination services for all notified operators. Moreover, for the first time AGCOM has imposed the obligation to control the prices for the supply of interconnection kits. The obligation to control prices is confirmed only for calls originated within the European Economic Area.
ii Relevant litigation
The 28-day invoicing issue
Starting from 2015, all the operators informed their customers that the billing and renewal of services provided would be carried out on a four-weekly basis (every 28 days) and not on a monthly basis.
By Resolution No. 121/17/CONS, AGCOM established that the billing period for landline telecommunication services shall be no less than one month and the billing period for mobile telecommunication services shall be no less than 28 days, giving telecommunication operators 90 days to comply with the new provisions. Subsequently, Law No. 172/2017 confirmed Resolution No. 121/17/CONS.
Nonetheless, some operators maintained the 28-day invoicing system. By Resolution No. 269/18/CONS, AGCOM adopted specific measures against TIM, Wind Tre, Vodafone and Fastweb establishing the right of users to the reimbursement (by 30 December 2018) of the eroded days in the period between 23 June 2017 and the day of return to billing on a monthly basis, which took place between February and April 2018. The reimbursement has to be granted through the postponement of the invoicing date for a number of days equal to those illegitimately eroded. At the same time, operators are given the possibility to propose alternative compensation solutions to customers.
The operators appealed Resolution No. 269/18/CONS before the Administrative Court of Lazio (Rome), seeking the suspension of the measures therein adopted. On 21 November 2018, the Administrative Court rejected the appeal,40 reiterating the obligation imposed by AGCOM to reimburse customers by the end of 2018.
TIM, Wind Tre, Vodafone and Fastweb appealed the judgment before the Council of State. On 12 July 2019, the Council of State rejected the appeals,41 confirming the right of customers to the automatic reimbursement of the days illegitimately eroded through the 28-day billing system.
The same invoicing practices by telecom operators has been subject to the assessment of the Italian Antitrust Authority (IAA).42 On 7 February 2018, the IAA initiated proceedings against TIM, Fastweb, Vodafone, Wind Tre and Asstel for allegedly coordinating to preserve an increase of the tariffs charged to end users.
According to the IAA, the alleged coordination between the parties led to the adoption of almost identical implementation methods of the provision of Law No. 172/2017. Within the proceedings initiated to assess the alleged coordination between the operators, on 21 March 2018, the IAA initiated a sub-proceeding to adopt interim measures. It imposed on the operators the duty to suspend, pending the proceeding, the coordination concerning the repricing of the tariffs communicated to their customers, and it required each operator to define the terms of its offers independently from its competitors. The Interim Measure was confirmed on 11 April 2018.
This is the first interim measure adopted by the IAA in the context of anticompetitive agreement proceedings. The main case is still pending.
Council of State – Judgments 5928/5929 and 5929/2019
With Judgments No. 5928/2018 and 5929/2018 the Council of State defined the long-running dispute concerning the radio and television frequencies allocation in Italy. In 2007, the European Commission highlighted the incompatibility with EU Law of the Italian framework for (1) the allocation and management of radio and television frequencies and (2) the transition from analog television broadcasting to digital television. Given the need to assign the new frequencies, Italy adopted a regulatory framework aimed at allowing the entry into the market of new operators, which consisted in the launch of a beauty contest with a part of the frequencies reserved to new entrants. By Law of 26 April 2012 the beauty contest was suspended and replaced with a public selection procedure. Being an onerous procedure, it prevented the participation of smaller companies such as Europa Way, and it excluded operators who already owned three multiplexes (including Persidera, which had been awarded the beauty contest). The matter was referred to the European Court of Justice, which, in its judgment of 26 July 2017, acknowledged the incompatibility of the suspension of the beauty contest with European law, which prescribes that the regulation of the television market has to be dealt with by an independent administrative authority.
By Judgment No. 5929/2018 the Council of State partially accepted the appeal, re-attributing to AGCOM the power to choose autonomously whether to continue the interrupted beauty contest or to retain the criteria and the conditions of the onerous tender, ensuring in the meantime the provisioning of the audiovisual service.
With Judgment No. 5928/2018 the Council of State acknowledged that the frequency conversion system was not compliant with the principles of non-discrimination, transparency, free competition and proportionality, especially considering that Rai and Mediaset already illegally offered some digital networks in violation of the anti-concentrative limits provided by Italian law and thereby held a competitive advantage. However, considering the ongoing re-farming of the 700MHz band and the 5G tender, the Council of State decided not to cancel the frequency allocation plan in force.
iii IAA intervention regarding the TMT sector
Case A514 – Alleged abusive conducts of Telecom Italia in the ultra-broadband sector
On 28 June 2017, the IAA initiated a proceeding against Telecom Italia for a possible abuse of dominant position. The investigation concerns an alleged abuse committed by Telecom in the markets for (1) wholesale broadband and ultra-broadband access services and (2) retail broadband and ultra-broadband fixed telecommunications services. The IAA accuses Telecom of having carried out a complex abusive strategy, composed of several conducts.
In the first place, according to the IAA, Telecom Italia attempted to impede or slow down the carrying out of tenders issued by Infratel Italia SpA ('Infratel', an in-house company of the Ministry of Infrastructure and Economic Development) for the deployment of ultra-broadband infrastructures in the 'white areas', in order to preserve its monopoly in these market failure areas. Telecom Italia is deemed to have done so by announcing its intention to invest in white areas after the tender process started. It, therefore, changed the investment plan presented during the public consultation phase carried out by Infratel, aimed at defining the areas that would not be interested in any private investment in ultra-broadband infrastructure in the near future (therefore called white areas).
Second, Telecom Italia allegedly planned a litigation strategy to slow down the awarding of the tenders (sham litigation), therefore impeding the entrance of new operators in the ultra-broadband market.
Third, Telecom Italia is deemed to have implemented anticompetitive practices with regard to the commercial offers for wholesale and retail ultra-broadband services, marketing promotions containing conditions capable of locking in the customers, and setting wholesale prices that could not be replicated by other competitors.
On 17 May 2019, the IAA sent the statement of objections to Telecom Italia, confirming the accusations detailed above. A final decision is expected between the end of 2019 and early 2020.
iv Mergers in the media sector
SKY's acquisition of R2
On 28 November 2018, Sky Italia Srl (SKY) notified the acquisition of control over R2 Srl (R2). Owned by Mediaset Premium SpA (MP), R2 provides technical and administrative platform services for broadcasting by means of digital terrestrial television (DTT).
On 7 March 2019, the IAA opened an in-depth investigation into the transaction, alleging that SKY's acquisition of sole control over R2 was part of a set of arrangements between SKY and MP – concluded on 30 March 2018 – that had 'technical-functional' and 'economic-contractual' links with the transaction. According to the IAA, the transaction was capable of lessening competition in the market for retail pay-TV services, in which SKY and MP were the main players, by providing an incentive for MP to exit the market, and had the same effects as an acquisition of the whole of MP by SKY. The market for retail pay-TV services includes, in the IAA's view, broadcasting through satellite (direct-to-home (DTH)), DTT and the internet. The IAA considered that the transaction could potentially hinder competition also in the markets for: (1) wholesale access services to DTT technical platforms; (2) the wholesale licensing of broadcasting rights; and (3) the wholesale supply of pay-TV channels.
Since the parties were not subject to a standstill obligation pursuant to Article 16 of Law 287/90, they completed the transaction after notification, and SKY acquired sole control over R2 before the IAA completed its assessment.
However, the transaction included a condition subsequent to allow SKY to return R2 to MP if the IAA adopted a prohibition or a conditional decision on the merger. Following notification of the statement of objections by the IAA, SKY withdrew the notification and R2 was demerged back into MP. As a result of the return of R2 to MP, R2's platform was opened to third-party access.
Despite the notification's withdrawal and the return of R2 to MP, the IAA took the view that the demerger only partially restored the situation to the status quo ante and did not remove the anticompetitive effects that the notified transaction had generated in the meantime.
On 20 May 2019, the IAA issued a decision clearing the notified transaction, albeit imposing the following remedies on SKY for a period of three years as of notification of the decision:
- an obligation not to conclude new contracts for the acquisition of broadcasting rights and linear pay-TV channels edited by third parties on an exclusive basis for the internet platform in Italy;
- an obligation to grant third parties access on a fair, reasonable, non-discriminatory and cost-oriented basis to any new proprietary DTT platform that SKY may set up, to the extent that the platform in question is 'compatible with the R2 assets' that SKY modified during the time in which it exercised control over the R2 platform;
- an obligation on SKY not to use information and assets belonging to R2 and already acquired for SKY's pay-TV offers;
- an obligation to designate, within two months of the decision, a trustee to verify SKY's compliance with the remedies; and
- an obligation to draw up and submit to the ICA, within three months of the decision and each year thereafter, reports setting out the actions taken by SKY to comply with the remedies.
Terzo Fondo F2i/Persidera
On 4 September 2019, the IAA launched an investigation on the acquisition of control of Persidera SpA (Persidera), a network operator active in the digital terrestrial broadcasting market (DTT) by Terzo Fondo per le Infrastrutture, set up and managed by F2i SGR SpA (F2i).
The merger involves the demerger of Persidera and of its subsidiary TIMB2 Srl in two newly established companies: NetCo, which will hold the business unit of radio and television broadcasting infrastructures on terrestrial frequencies, and MuxCo, which will hold purely intangible assets (ownership of the right of use) and some network assets, also managing commercial relationships with audiovisual media service providers.
NetCo will be acquired by EI Towers SpA (EI Towers), while MuxCo will be acquired by F2i SGR.
The merger involves the television industry, with specific reference to digital terrestrial broadcasting. The IAA believes that the acquisition of Persidera by F2i, by virtue of the control of EI Towers by the same F2i, could determine the establishment of a dominant position of the new company with (1) horizontal effects, since Persidera and EI Towers are direct competitors in the supply of 'full service' services to network operators for the management of frequencies and (2) vertical effects, by foreclosing inputs for network operators that are not vertically integrated and customers for companies competing with EI Towers. Moreover, due to the stake held by Mediaset in EI Towers, the IAA must ascertain whether there is a risk of coordination between Persidera, active in digital broadcasting, and Mediaset, active in the same market through its subsidiary Elettronica Industriale.
Sky and Dazn's commercial agreement
On 31 August 2019, Sky Italia and Dazn announced the signing of a commercial agreement which, in addition to different offers to access streaming content, also includes the opening of the satellite channel DAZN1. From 20 September 2019 onwards, SKY subscribers with HD decoders that will activate the SKY-DAZN offer will have access to the DAZN1 channel, which will allow them to watch three Serie A TIM matches, two BKT Series matches for each round and a selection of international matches of football and other sports.
VII CONCLUSIONS AND OUTLOOK
The rapid development of technologies constantly opens up new scenarios in the IT, media and telecommunications markets. At the moment, the focus on the implementation at the national level by 2020 of the new EU Electronic Communications Code, which establishes a shift in the telecommunications sector, is introducing industrial policy objectives and expanding the role of the regulatory authorities.
The review of the telecommunications framework focuses in particular on measures that provide incentives for investment in high-speed broadband network. Particularly essential are the developments linked to the 5G frequency bands, which allow the transmission of significantly higher amounts of data in a very short time, also favouring the launch of the internet of things, opening the path to the convergence of fixed, mobile and broadcasting services.
1 Marco D'Ostuni is a partner, Marco Zotta is a senior attorney and Manuela Becchimanzi is an associate at Cleary Gottlieb Steen & Hamilton LLP.
2 Directive 2002/21/EC.
3 Directive 2002/20/EC.
4 Directive 2002/19/EC.
5 Directive 2002/22/EC.
6 See Articles 26 and 27 of Legislative Decree No. 259/2003.
7 Pursuant to Article 2(g) of Law No. 112/2004, the ICS is 'the economic sector that includes the following activities: newspapers and periodicals; electronic publishing including the internet; radio and television; cinema; external advertising; product and service announcements and sponsorship'.
8 See Articles 5, 6 and 7 of the Procedural Regulation adopted by AGCOM with Resolution No. 368/14/CONS. In the first phase, AGCOM issues a draft resolution identifying the relevant markets, which is submitted to public consultation for 30 days. On the basis of the consultation outcome, AGCOM issues a final resolution that indicates the market that will be subject to analysis in order to assess the existence of dominant positions or positions that could otherwise harm pluralism. In the second phase, after having acquired the necessary information, AGCOM issues a new draft resolution, which it also submits to public consultation, concerning the analysis of the relevant market. If, based on the analysis, AGCOM finds a dominant position, it must adopt measures aimed at removing it.
9 For example, according to this principle, a service provider cannot reserve priority to its own audiovisual content over that released by its competitors or via YouTube.
10 The results of the consultation showed a widespread consensus on, inter alia, the following issues: the idea that applying forms of traffic management does not constitute per se a market failure or a reduction in the opportunities available to the end user; and the fact that pricing (for example, choosing between flat-rate pricing and usage-based pricing) considerably affects the use of internet-based services. The results are available at www.agcom.it/le-risultanze-delle-consultazioni-gennaio-2012-.
11 AGCOM, Annual report, 2019, p. 77.
13 See Italian Chamber of Deputies, IX Committee, Hearing of AGCOM Secretary General, Filippo Arena, on the fact-finding investigation concerning 'New telecommunications technologies with particular regard to the transition to 5G and the management of big data'. Rome, 18 September 2019.
15 Law Decree No. 7/2015.
16 Nonetheless, Italian courts often condemn online defamation under this provision.
17 Regulation (EU) No. 2016/679.
18 Legislative Decree No. 196/2003.
19 Article 23 of the Privacy Code.
20 Article 123 Section 1 of the Privacy Code. The exact moment of completion of the transmission of a communication depends on the type of ECS provided. For example, for a telephone call, the transmission will be completed when one of the users ends the connection. For an email, it will be when the recipient collects the message from the server of his or her service provider.
21 See Articles 162 and 167 of the Privacy Code.
22 This principle has been affirmed by the European Court of Justice in Case C-131/12, Google Spain SL, Google Inc v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzales, 13 May 2014.
23 Court of Cassation, judgment No. 5107/14 of 17 December 2013.
24 Court of Cassation, judgment No. 13161 of 24 June 2016.
25 Court of Cassation, judgment No. 6919 of 20 March 2018.
26 Court of Cassation, judgment No. 19681 of 22 July 2019.
27 Law No. 71/1017.
28 See Articles 2 and 4 of Law No. 71/2017.
29 The structure was created by the Decree of the President of the Council of Ministers 24 January 2013, Directive laying down the guidelines for cybernetic protection. Article 2 Section 1 of the Decree defines cybersecurity as 'the condition under which cyberspace is protected by adopting appropriate measures of physical, logical and procedural security to face events, either voluntary or accidental, consisting of the undue acquisition and transfer of data, in its modification or unlawful destruction or in the damage, destruction or impairment of the smooth operation of networks and information systems or their components'.
30 Article 14 Section 1 of the Code.
31 See COM (2012) 478 Final, 3 September 2012, 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Promoting the shared use of radio spectrum resources in the internal market'.
32 Decision No. 243/2012/EU. As regards the 5G pioneer bands (700MHz, 3,400–3,800MHz and 26GHz bands), EU legislation has laid down a number of deadlines to facilitate the roll-out of 5G, subject to certain exceptions for justified reasons, namely: (1) Member States are required to allow the use of the 700MHz band for terrestrial wireless broadband communications services by 30 June 2020 and (2) the European Electronic Communications Code requires Member States, by 31 December 2020, to reorganise and allow the use of sufficiently large blocks of the 3,400–3,800MHz band and to allow the use of at least 1GHz of the 26GHz band, subject to demand and to any significant constraints on migration of existing users or band clearance.
33 These companies are Iliad Italia SpA, Telecom, Fastweb SpA, Vodafone, Wind 3 SpA, Linkem SpA and Open Fiber SpA. Only Iliad Italia SpA, as a new entry in the market, expressed interest in participating in the procedure for the batch of the 700MHz band.
34 Article 2(1)(c) of the Consolidated Text on Radio and Audiovisual Media Services defines a network operator as 'the holder of the right to install, provide and operate an electronic communications network via digital, cable or satellite on terrestrial frequencies and the right to provide installations for the transmission, multiplexing, distribution and dissemination of frequency resources that allow the transmission of programmes to users'.
35 Article 2(1)(d) of the Consolidated Text on Radio and Audiovisual Media Services defines content providers as 'the person who has the editorial responsibility for the preparation of television or radio programmes and related data-programmes to be broadcast, even with conditional access, on terrestrial frequencies via digital, cable or satellite or by any other means of electronic communication and who is entitled to carry out commercial and publishing activities related to the diffusion of the images or sounds and related data'.
36 For example, pursuant to Article 6 of the Regulation content providers are required to store the complete recording of television programmes for a period of three months following broadcasting. Pursuant to Article 10, they must also reserve at least 20 minutes per week for advertising European works.
37 See Article 7 of the Consolidated Text on Radio and Audiovisual Media Services and AGCOM Resolution No. 131/12/CONS.
38 See Article 45 of the Consolidated Text on Radio and Audiovisual Media Services.
39 In 2015, the most widespread WebTV, Netflix, made its debut on the Italian market.
40 Judgments Nos. 11303, 11304, 11305 and 11306 of 21 November 2018.
41 Judgment No. 4913 of 12 July 2019.
42 Case I820.