Many important events happened in the Italian TMT sector in 2018.
Mindful of EU targets,2 the legislator took major steps to advance the development of ultra-fast connectivity, 5G networks and access infrastructure. With growing demand for broadband and ultra-broadband networks, the Budget Law for 2018 assigned the 700MHz band to 5G services and applications, freeing it from TV broadcasting.
In turn, the Italian Communications Authority (AGCOM):
- published the results of a survey on development prospects for wireless and mobile systems towards 5G and the use of new portions of spectrum above 6GHz (Resolution No. 89/18/CONS);
- established new rules to allocate and use 5G frequencies (Resolution No. 231/18/CONS); and
- adopted a plan to assign new frequencies to DTTV in lieu of the 700MHz band (Resolution No. 290/18/CONS).
The national auction to allocate 5G frequencies was awarded on 2 October 2018 for a record amount of €6.55 billion, well above the government's expectations. The 700MHz band will be available to 5G from 2022 onwards and continue to channel TV broadcasting until then.
Mobile communications also saw major changes in 2018, as a new operator, Iliad, entered the market in the aftermath of the 2016 joint venture between Wind and H3G Italia. On May 2018, Iliad started an aggressive marketing campaign for mobile services, joining the fray with competitive operators such as Vodafone Italia SpA (Vodafone) and Telecom Italia SpA (Telecom).
In the media sector, in December 2017 the Ministry of Economic Development signed a new service contract with RAI, the concessionaire of the public broadcasting service in Italy. The new contract covers the years from 2018 to 2022, replacing the previous one, which originally should have covered only the years from 2010 to 2012.
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.
The main sources of law in the TMT sector are:
- Legislative Decree No. 259/2003 (Code), which implemented the comprehensive regulatory framework for ECNs and services adopted in 2002 at the EU level, including the Framework,3 Authorisation,4 Access5 and Universal Service Directives.6
- 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.
ii 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.7
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.
iii 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.
iv 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).8
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.9
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.
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.
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.10 In 2011, AGCOM launched a public consultation entirely focused on net neutrality, the results of which were summarised in Resolution No. 714/11/CONS.11
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. In particular, with Resolution No. 123/17/CONS, AGCOM issued a warning against Wind Tre regarding its zero-rating offers (i.e., offers that do not compute the traffic generated by, or directed to, particular services or applications, called zero-rated, for the purpose of achieving the consumption thresholds when a data cap is imposed). AGCOM concluded that Wind Tre discriminated between zero-rated traffic and the remaining traffic, and stated that such offers can be marketed on condition that, upon reaching the data ceiling, the same treatment is guaranteed to all types of traffic.
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 entered into force, introducing new provisions on the functioning of the Public Objections Register. The main feature of the reform is the possibility to register 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.12 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.13
Data protection, privacy and the right to be forgotten
The protection of personal data in electronic communications in Italy is regulated by GDPR,14 which entered into force on 25 May 2018, and the Privacy Code,15 as amended by Legislative Decree No. 101/2018.
As a general rule,16 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.17 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.18
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. This principle has been affirmed by the European Court of Justice in Google Spain,19 where the Court established that an online search engine such as Google is responsible for the personal data collected and therefore shall, upon request, remove from the list of results all the links to web pages containing information about that person.
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,20 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 case21 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.
In a recent case,22 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. 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.
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 adopted the related regulation, which is currently undergoing public consultation.
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,23 which introduces measures to prevent the cyberbullying phenomenon, especially by emphasising the role of schools.24 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.25 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.
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.26
Through Resolution 290/18/CONS, AGCM adopted the national frequency assignment plan for frequencies to be allocated to DTTV (see Section VI).
ii Flexible spectrum use
Following the European trend,27 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, AGCOM aims to boost the development of broadband services in Italy through efficient assignment of frequencies.
Through Resolution 18/15/CONS, AGCOM set out the rules and procedures for the assignment of the 1,452–1,492MHz frequencies (L Band), to be allocated to broadband and ultra-broadband mobile services with 4G technology. On this basis, the Ministry of Economic Development launched a public auction in September 2015, making Italy the second European country (after Germany) to allocate this band.28
No new entrants were allowed to bid, because the portion of L Band allocated was meant to be used by MNOs as a supplementary downlink (i.e., to enable users to receive and download data more quickly and efficiently).
Considering the increasing market demand for wireless broadband services, AGCOM has also 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 in order 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 (see Section VI).
iv Spectrum auctions and fees
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 in order 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).
i Restrictions on the provision of service
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 operators29 and content providers.30
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.31
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.32
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).33 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).
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 in market (c) above 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.
ii Internet-delivered video content
In Italy, as high-speed broadband connections become more widespread, internet video distribution continues to grow. According to the 14th Report on Communication by Censis–UCSI in 2017, the different forms of TV over internet (such as WebTV, smart TV and IPTV) have a 26.8 per cent audience (+2.4 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).34
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
Refarming the 700MHz frequency and Resolution 290/18/CONS
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, in order to provide a new framework for the DTTV service.
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.
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 2018.35 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.
Implementing the Budget Law for 2018, through Resolution 182/18/CONS, AGCOM defined initial criteria for the conversion of the rights to use frequencies for the digital terrestrial services owned by network operators at the national level into rights of use of transmission capacity.
In Resolution No. 623/15/CONS, AGCOM found that TIM held significant market power in the markets for wholesale access services provided at a fixed location. This entails an obligation for TIM to provide other licensed operators (OLOs) with wholesale access to the fixed network. In the same Resolution, AGCOM welcomed the use by TIM of discounted volume or long-term offers for wholesale services, that is, the use by the incumbent of offers characterised by the provision of discounts to operators requesting access or lower prices for predetermined purchase volumes. In this way, AGCOM allowed TIM to practice discounts on the price of the virtual unbundling line access (VULA) service upon notice to the same authority for approval. In April 2017, TIM communicated to AGCOM a commercial offer called Easy Fiber, targeting the OLOs interested into developing a multi-year migration plan to ultra-broadband using the TIM NGA network. In essence, the Easy Fiber offer intended to allow OLOs to take advantage of the NGA and VULA bitstream access at reduced prices compared to the standard price list included in the reference offers, in return for the advance payment of a certain percentage of the total value of planned purchases. Through Resolution 87/18/CIR, AGCOM decided not to approve the Easy Fiber offer and requested TIM to submit a new proposal.
TIM filed an appeal before the Administrative Court of Lazio for the annulment of Resolution 87/18/CIR. The case is pending,
Resolution No. 481/17/CONS – market analysis of mobile network voice termination services
Through Resolution No. 481/17/CONS, AGCOM submitted to public consultation the new market analysis concerning mobile network voice termination services. Compared to the previous market analysis, AGCOM proposes identifying a higher number of operators holding significant market power, adding five new operators to the list (Digi Italy, Fastweb, Iliad, Vectone and Welcome Italy).
ii Relevant litigation
Court of Milan – Sky/MediaPro36
On 5 February 2018, Lega Calcio (football league) awarded Spanish independent intermediary MediaPro Italia Srl (MediaPro) the auction concerning the audiovisual rights for the 2018 to 2021 seasons of the Italian Serie A. On 14 March 2018, the Italian Antitrust Authority (IAA) (acting upon an application filed by the Lega for approval of the award) found that the criteria and the outcome of Lega's competitive procedure for the selection of an independent intermediary were consistent with the provisions of the Melandri Decree.37 In its decision, however, the IAA discussed the features of the notion of independent intermediary, as well as the principles that its activity must comply with. The IAA emphasised that such operator is bound to provide services of intermediation of audiovisual rights by reselling the rights it is awarded to other operators downstream on fair, transparent and non-discriminatory terms. It cannot perform activities that may result in the establishment of competitive relationships with media operators; therefore, the independent intermediary should not perform activities involving vertical integration downstream, including the assumption of editorial responsibility that characterises the activities of providers of multimedia content.
On 6 April 2018, MediaPro launched a tender procedure to sublicence audiovisual rights to TV broadcasters by selling not only single matches, but complete audiovisual products lasting several hours before and after the matches, and including entertainment, comments and news content (live studio programmes) as well as advertising placed in the breaks programmed by MediaPro. Sky filed a request for interim orders with the Court of Milan, claiming that MediaPro's call for tender was an abuse of dominance. Sky claimed that MediaPro was leveraging its freshly acquired monopoly on Serie A rights (which made MediaPro dominant in the relevant market for broadcasting rights of football matches involving Italian teams in yearly tournaments) to vertically integrate in the advertising and broadcasting markets downstream. In this way, MediaPro would in fact be exercising editorial responsibility, interfering with the media operators' editorial and business freedom in the creation and the design of their own audiovisual products. Sky also claimed that MediaPro was unduly bundling its audiovisual products with the right to broadcast Serie A matches: operators interested in producing and broadcasting their own programmes to broadcast Serie A matches (e.g., with original live studio content and comments) were forced to buy in any event MediaPro's programmes (including entertainment and advertising sold by MediaPro) and to pay for the right to refrain from broadcasting them.
On 16 April 2018, the Court of Milan adopted an interim order, ordering MediaPro to suspend the tender procedure to sub-licence audiovisual rights. On 9 May 2018, the Court of Milan upheld its interim order of 16 April 2018. The Court found that Sky succeeded in establishing both its prima facie case (of abuse of dominance by MediaPro through the structure and design of its product packages) and urgency.
By an order issued on 11 June 2018, the Court of Milan rejected the appeal filed by MediaPro against the decision rendered on 9 May. According to the Court of Milan, MediaPro was violating its obligations as an independent intermediary to:
- refrain from carrying out activities involving publishing responsibilities;
- guarantee to sub-licensees the widest entrepreneurial and publishing initiative in the packaging of audiovisual products, including the right to choose whether and to what extent to avail themselves of the services that MediaPro could offer; and
- licence audiovisual rights in a fair, transparent and non-discriminatory manner without imposing additional and unnecessary costs on the licensees.
According to the Court, MediaPro's conduct also consisted of an abuse of its dominant position under Article 102 TFEU since, by leveraging its monopoly on the rights of Serie A, MediaPro required 'the operators to purchase the audiovisual products and sell their advertising space, also imposing additional costs on them to regain possession of: (1) the right to exercise their publishing initiative (2) to commercialise advertising space autonomously, and also (3) to freely manage the times, methods of insertion and duration of their advertising space'. The Court acknowledged that such acts also constituted unfair competition under Italian law.
Administrative Court of Lazio (Rome)38 – replicability of TIM Smart offers
The Administrative Court of Lazio partially annulled, on the grounds of lack of motivation, AGCOM's decisions approving, after a price-squeeze test, the retail offers adopted by TIM, which holds significant market power in the wholesale access markets.
The judgment concerns a series of similar promotional offers (TIM Smart), reiterated by TIM over time and subject to a price test carried out by AGCOM to prevent price squeezes. AGCOM runs the price test through a double methodology: the discount cash flow (DCF) analysis, useful to assess whether the revenues from the offer allow the recovery of investments plus variable costs over time, based on the current value of expected cash flows during the entire duration of the offer; and the period-by-period (PbP) methodology, which is used to make sure that, during the entire duration of the offer and in each of the relevant periods in which such duration is split for purposes of the analysis, the revenues from the offer are higher than the variable costs. For certain types of promotion having a limited impact on market dynamics (such as those limited in time or capped at a limited economic value), the regulation allowed AGCOM to run the price test only based on the DCF method, while for all other offers AGCOM had to run both the DCF and the PbP test.
In this case, Vodafone claimed that AGCOM should have run both tests, as the TIM Smart promotions were allegedly capable of distorting competition.
The Court noted that in principle, AGCOM was right to run only the DCF test, because each TIM Smart promotion in itself was capped and had a limited impact on market dynamics. However, the Court found that AGCOM's investigation was not complete, because AGCOM had failed to assess the cumulative impact on the market of all of the TIM smart promotions as a whole. According to the Court this was necessary, because TIM had launched a continuous series of different promotions over time.
Court of Milan39 – Telecom Italia v. Fallimento Voiceplus and Eutelia
On 2 February 2018, the Tribunal of Milan rejected a €730 million abuse of dominance damages claim brought by Eutelia and Voiceplus against Telecom.
First Eutelia and then Voiceplus (on Eutelia's network) offered value-added services (VAS) to end users using non-geographic phone numbers (NGNs) starting with prefixes 899 and 0878. VAS in practice encompass all sorts of services that can be offered via phone for an additional price to that of normal phone services, and include horoscopes, weather forecasts, games and chats.
In this market, the payment collection system has a cascade structure: each phone operator includes the cost of calls to NGNs in the phone bills issued to its own subscribers. Through various possible contractual arrangements, these phone operators transfer the sums invoiced or collected (minus their agreed share for the origination of the calls) to other phone operators owning the NGNs called by users. The owners of the NGNs in turn retain their share of revenues and pay the remaining part of the sum to the service centres actually providing VAS.
According to the claimants, from 2005 until 2009, by falsely alleging the fraudulent origin of traffic directed from Telecom users to the plaintiffs' NGNs, Telecom had stopped paying substantial amounts contractually owing to Eutelia and Voiceplus. In the claimants' view, Telecom's alleged monopoly on the upstream market for access to users allowed the company to abusively suspend payments to Eutelia and Voiceplus in order to throw them out of the market. According to the plaintiffs, Telecom only refused to pay for traffic directed to Eutelia's NGNs, but regularly paid VAS providers for traffic directed to Telecom's own NGNs, thus pushing the most important VAS providers to abandon Eutelia and choose Telecom as a contractual partner.
The Court rejected the plaintiffs' claims. The judge found that Telecom had not provided proof of the alleged frauds for some of the payment suspensions. However, Eutelia and Voiceplus had not sufficiently identified the relevant market in which Telecom was allegedly dominant, nor consequently proven dominance. Furthermore, the plaintiffs had not demonstrated that Telecom had discriminated among service providers based on NGN ownership, and had not provided sufficient evidence of the alleged flux of important VAS providers from Eutelia and Voiceplus to Telecom. On the contrary, Telecom had supplied proof that in the relevant period it had suspended the payment of comparable amounts for alleged fraudulent traffic to its own contractual partners providing VAS services on NGNs belonging to Telecom itself. As a result, the Court dismissed the plaintiffs' allegations of abuse of dominance under Article 102 TFEU.
European Court of Justice joined cases C-54/17 and C-55/17
In March 2012, the IAA found that Wind and Vodafone performed aggressive commercial practices by marketing SIM cards with pre-loaded and pre-activated functionalities, such as internet browsing services and voicemail services, the use of which was charged to the user if they were not deactivated at his or her express request, without that user having been informed in advance of their existence.
Wind and Vodafone appealed against those decisions before the Administrative Court of Lazio. By judgments of 18 February 2013, the Court annulled the contested decisions on the ground that the IAA lacked competence. It stated that such sanctions fell within the competence of AGCOM. The Court considered that the practices at issue were covered by special legislation (the Electronic Communications Code) that gave AGCOM exclusive powers to inspect, prohibit and issue fines with regard to electronic communication services.
AGCM lodged an appeal against the judgment before the Council of State. In February 2016, the Plenary of the Council of State affirmed that, under Italian law, the competence to sanction a mere infringement of information obligations in the electronics communication sector lay with AGCOM, while penalising a 'commercial practice that is in all circumstances considered aggressive' (such as, inter alia, the inertia selling at issue in the proceeding) fell within AGCM's competence, even in the electronic communications sector.
The Sixth Chamber of the Council of State manifested doubts, however, as to whether Article 27(1-bis) of the Consumer Code (concerning the relationship between the IAA and AGCOM over unfair commercial practices), as interpreted by the Plenary of the Council of State, is compatible with EU law.
The Council of State asked the European Court of Justice (ECJ) whether the conduct of the telecommunications operators at issue could be characterised as inertia selling or, more broadly, as an aggressive commercial practice within the meaning of the Unfair Commercial Practices Directive, and whether EU law on electronic communications precludes national legislation under which inertia selling is covered by the Unfair Commercial Practices Directive with the result that the national regulation authorities are not competent to penalise such conduct.
The ECJ concluded that the conducts at issue constitute inertia selling and, therefore, according to the Unfair Commercial Practices Directive, an unfair commercial practice. In addition, the Court stated that EU law does not preclude national legislation from imposing an obligation to assess inertia selling pursuant to the Unfair Commercial Practices Directive. As a result, the national regulation authorities are not competent to penalise such conduct.
iii IAA intervention regarding the TMT sector
Cases A500A and A500B – TIM and Vodafone for abuse of dominant position
On 13 December 2017, the IAA imposed two separate fines against Vodafone and Telecom and its subsidiary Telecom Italia Sparkle SpA for alleged abuses of dominant position in the wholesale market for SMS termination services on their own network, with effects on the retail market for the services of mass sending of corporate SMS.
In particular, the IAA concluded that Vodafone performed internal and external discrimination of a technical and economic nature capable of compressing the margins to the detriment of competitors that buy the termination of SMS to the Vodafone mobile network in the downstream market.
As regards Telecom, the IAA concluded that the company compressed the margins for an equally efficient competitor in the downstream market for the acquisition of the SMS termination to the TIM mobile network. In both cases, TIM and Vodafone, dominant in the respective upstream markets for SMS termination on their own network and vertically integrated, applied tariffs both on the upstream market and on the downstream market for mass sending of corporate SMS capable of making the potential margin for competitors in the retail market insufficient to cover the costs of providing such services to end users.
Case I820 – initiation of proceedings for anticompetitive agreements concerning the changing of billing timing and the IAA's interim order
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. 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. Subsequently, Law No. 172/2017 introduced the obligation for providers of ECSs to renew and bill the services provided to end users on a monthly basis, granting a period of 120 days to implement such provision.
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. In fact, Fastweb, TIM, Vodafone and Wind Tre informed their customers that the billing of the services provided would be carried out on a monthly basis and no longer on a four-weekly basis, with the consequence that the total annual expenditure would remain unchanged but it would be distributed over 12 instalments instead of 13 (with an increase of each instalment of 8.6 per cent).
The alleged coordination between TIM, Vodafone, Fastweb and Wind Tre would be aimed at preserving the increase of the tariffs determined from the initial change of the periodicity (from monthly to four-weekly).
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.
This interim measure was adopted because, according to the IAA, the documentation acquired during the inspection confirmed the existence of coordination between operators, especially concerning the choice to apply, together with the return to monthly invoicing, an increase in monthly tariffs of 8.6 per cent.
This is the first interim measure adopted by the IAA in the context of anticompetitive agreement proceedings.
Case I799 – commitments of TIM and Fastweb regarding an anticompetitive agreement
On 1 February 2017, the IAA initiated a proceeding against TIM and Fastweb SpA for a possible infringement of Article 101 TFEU concerning the setting up of a joint venture, Flash Fiber Srl, aimed at deploying ultra-broadband network infrastructure in 29 Italian cities.
The IAA raised concerns regarding the potential anticompetitive implications of the agreement, which were capable of restricting competition in the markets for wholesale access provided at a fixed location and in the market for retail broadband and ultra-broadband services. According to the IAA, the agreement could involve significant coordination between the two main vertically integrated competitors concerning access conditions to the joint-venture networks and price fixing to end users.
Fastweb and TIM argued that any potential anticompetitive effect resulting from the agreement would be offset by the positive effects produced by the same, pursuant to Article 101(3) TFEU, considering that it would promote technical progress for the benefit of consumers. Moreover, the competitive pressure ensured by Open Fiber SpA would secure downstream efficiencies in the form of price reductions for consumers.
On 28 March 2018 the IAA closed the proceedings by accepting the parties' commitments. Inter alia, the companies committed to:
- set up the FTTH network in the 29 cities affected by the agreement within strict deadlines;
- reduce the duration of Flash Fiber to what is strictly necessary to ensure the recovery of the investments made;
- negotiate agreements with third parties requiring reciprocal access to the respective infrastructures in terms of the transfer of the indefeasible right of use for up to 30 years; and
- oblige Flash Fiber to adopt suitable measures to prevent the transfer between the companies of any commercially sensitive information and an antitrust compliance manual, and to put a person in charge of supervising compliance with the compliance manual.
VII CONCLUSIONS AND OUTLOOK
According to AGCOM's annual report, in 2017 the Italian TMT sector grew by 0.9 per cent, after having recorded a continuous contraction between 2006 and 2015. The main focus of the regulators remains the growing demand for broadband and ultra-broadband networks. The national auction concerning the 5G frequencies was awarded on 2 October 2018 for a record amount of €6.55 billion. Compared to those auctions held in Finland, Ireland, Spain and the United Kingdom, the Italian auction was the most expensive in Europe. 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.
The competitive dynamics of the mobile sector also changed in 2018 due to the entry into the market of Iliad: the offers of the other main operators have suffered a drastic drop in prices and at the same time the amount of gigabytes and SMS offered by telecom companies has increased.
As regards litigations, 2018 saw the dispute between Sky, Lega Calcio and the Spanish independent intermediary MediaPro concerning the auction of the audiovisual rights for Italian Serie A for the 2018 to 2021 football seasons.
1 Marco D'Ostuni is a partner and Marco Zotta and Manuela Becchimanzi are associates at Cleary Gottlieb Steen & Hamilton LLP.
2 The 5G Action Plan of the European Commission, referred to in the Communication of 14 September 2016, COM (2016) 588 final, includes a series of steps aimed at coordinating the deployment of 5G networks in Europe. In particular, the aim of the Communication is to ensure the rapid deployment of 5G networks by 2018 and their progressive introduction on a large scale by 2020.
3 Directive 2002/21/EC.
4 Directive 2002/20/EC.
5 Directive 2002/19/EC.
6 Directive 2002/22/EC.
7 See Articles 26 and 27 of Legislative Decree No. 259/2003.
8 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'.
9 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.
10 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.
11 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-.
12 Law Decree No. 7/2015.
13 Nonetheless, Italian courts often condemn online defamation under this provision.
14 Regulation (EU) No. 2016/679.
15 Legislative Decree No. 196/2003.
16 Article 23 of the Privacy Code.
17 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.
18 See Articles 162 and 167 of the Privacy Code.
19 Case C-131/12, Google Spain SL, Google Inc v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzales, 13 May 2014.
20 Court of Cassation, judgment No. 5107/14 of 17 December 2013.
21 Court of Cassation, judgment No. 13161 of 24 June 2016.
22 Court of Cassation, judgment No. 6919 of 20 March 2018.
23 Law No. 71/1017.
24 See Articles 2 and 4 of Law No. 71/2017.
25 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'.
26 Article 14 Section 1 of the Code.
27 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'.
28 The tendering procedure ended with the award of a portion of 20MHz each to TIM and Vodafone.
29 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'.
30 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'.
31 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.
32 See Article 7 of the Consolidated Text on Radio and Audiovisual Media Services and AGCOM Resolution No. 131/12/CONS.
33 See Article 45 of the Consolidated Text on Radio and Audiovisual Media Services.
34 In 2015, the most widespread WebTV, Netflix, made its debut on the Italian market.
35 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.
36 Case No. 18406/2018.
37 Legislative Decree No. 9/2008.
38 Judgment No. 10920/2017.
39 Judgment No. 1560/2018.