Italy

[IT] Italian Main Broadcasters are Dominant on the Market

IRIS 2003-9:1/20

Maja Cappello

Autorità per le garanzie nelle comunicazioni (AGCOM)

Pursuant to Article 2, paragraph 7, of the Act no. 249/97, Istituzione dell'Autorità per le Garanzie nelle Comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Communications Act of 31 July 1997 , hereinafter "the Act" ­ see IRIS 1997-8: 10) and to the Regulation no. 26/99, Regolamento in materia di costituzione e mantenimento di posizioni dominanti nel settore delle comunicazioni (Dominant Positions Regulation

­ see IRIS 1999-7: 11), on 26 June 2003 the Autorità per le Garanzie nelle Comunicazioni, (Italian Communications Authority ­ AGCOM) adopted Decision no. 226/03/CONS and established that RAI, RTI and Publitalia exceeded the concentration thresholds envisaged by the Act and occupied a dominant position on the Italian television broadcasting market.

According to Article 2, paragraph 8, lit a) of the Act, a dominant position is presumed when a broadcaster receives more than 30% of the economic resources of the broadcasting sector. The first application of this provision led to decision no. 365/00/CONS (Accertamento della sussistenza di posizioni dominanti ai sensi dell'articolo 2,

comma 9, della legge n. 249/97 ­ see IRIS 2000-7: 7) in which AGCOM ascertained that two economic entities

- RAI & Sipra and RTI & Publitalia, i.e. the two main Italian broadcasters and their advertising agencies - had both exceeded the thresholds in 1997, but that their positions on the market, though dominant, had been reached by means of a spontaneous growth of their undertakings without restricting competition or pluralism.

In accordance with decision no. 212/02/CONS of 3 July 2002 (see IRIS 2002-8: 9), AGCOM started proceedings in order to analyse the distribution of economic resources in the broadcasting sector in the three-year period 1998-2000. Decision no. 13/03/CONS, adopted on 9 January 2003, concluded these proceedings and stated that the two economic entities composed by RAI-Sipra and RTI-Publitalia, both exceeded the thresholds established by the mentioned provision of the Act. On the same day, AGCOM adopted decision no. 14/03/CONS opening proceedings in order to verify, within 4 months, the effective existence of prohibited dominant positions on the market, which might impair pluralism.

Decision no. 226/03/CONS concluded the analysis, confirmed that RAI, RTI and Publitalia were dominant on the market and warned them to avoid unlawful acts or behaviour. A new market analysis will be concluded by 30 April 2004 on the three-year period 2001-2003 and, should the situation persist and the conclusions of the judgment of the Constitutional Court declaring the Communications Act partly unconstitutional (see IRIS 2003-3: 13) not be respected, AGCOM is also deputed to impose sanctions on the broadcasters concerned, which may consist in an order to split the undertakings or assets composing the economic entities.