New rules on transfer of broadcasters/audiovisual/interactive media services providers and network operators!

by DLA Piper
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Further to a consultation process, this August, the Italian Communications Authority (Autorità per le garanzie nelle comunicazioni, “Agcom”), published a new regulation for the transfer of broadcasters’ ownership (Regulation no. 368/14/CONS, the “New Regulation“).

The New Regulation is substantially in line with the document that was subject to the prior consultation. In light of certain contributions made by the participants to the consultation, the Authority made some amendments to the previous draft. In particular, the Authority clarified the definition of “group” and the perimeter to be intended for the transfer of ownership, which is to be construed very widely (including the transfer of line of business and any act that amounts to a dominant influence). The Authority also clarified that the mere transfer of an authorization together with the relevant LCN number shall not be subject to the New Regulation.

The authorization process is triggered by a notification that can be made within 15 days from the actual transfer of ownership, or from the date of the preliminary agreement with which the parties agree to transfer the ownership at a later stage (and provided that this agreement is officially registered – and this last point is somewhat a shift from the prior instances whereby the Authority also accepted non-registered documents -).

The Authority also confirmed that the revenue thresholds that will trigger a prior notification are to be considered as cumulative, thus applying the same criteria as the Antitrust Authority. A prior communication will accordingly have to be made only where both antitrust thresholds are attained, i.e., currently, (i) (national) revenues of the companies involved above 482 million Euro, and (ii) (national) revenues of the target above 48 million Euro. Such thresholds are updated by the Antitrust Authority.

As for the part of the New Regulation relating to the procedure aimed at identifying a dominant position – or a position that may affect pluralism -, the Authority followed the same general antitrust model set out for the review of the electronic communications market. This will imply a unified process, with first the identification of the relevant market and then the possible measures as set out by Section 43 par. 5 of the Audiovisual Media Services Act . For the procedure for the related measures, it has been decided so set up a public consultation procedure, which will not last for more than 30 days.

So a lot of transactions will have to take into account the above new rules, as the New Regulation will apply to audiovisual / interactive media services providers and network operators.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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