Austria

[AT] Licence for Mobile Television Granted

IRIS 2008-4:1/11

Robert Rittler

Gassauer-Fleissner Attorneys at Law, Vienna

At the end of February, the Kommunikationsbehörde Austria (Austrian Communications Authority – KommAustria) granted the German company Media Broadcast GmbH a ten-year licence to operate a multiplex platform for mobile terrestrial broadcasting.

Two applicants had been competing for the licence: Media Broadcast GmbH, which is owned by Télédiffusion de France, and Mobile TV Infrastruktur GmbH, which belongs to a group of Austrian publishers. KommAustria had to make the selection on the basis of six legal criteria that were set out in more detail in the MUX-Auswahlgrundsätzeverordnung 2007 (2007 Multiplex Selection Criteria Decree). Under the Privatfernsehgesetz (Private Television Act), priority must be given to the applicant that provides a better guarantee of the following:

“1. the rapid achievement of a high digital-signal penetration rate;

2. the excellent technical quality of digital signals;

3. the employment of the broadcasters’ expertise in the development and operation of the digital platform;

4. a user-friendly approach for the consumer;

5. a plan for promoting the distribution of digital-signal reception devices;

6. a range of digital channels presenting a diversity of opinions, with priority given to channels containing material relating to Austria.”

In all these respects, KommAustria regarded Media Broadcast GmbH as being better suited to meeting these criteria than Mobile TV Infrastruktur GmbH. It also stated that the new licence-holder’s business plan was more convincing. Moreover, Media Broadcast GmbH was able to identify two mobile network operators as programme aggregators, while Mobile TV Infrastruktur GmbH had no comparably efficient company under contract.

The two other applicants from the original four were eliminated early on because they did not meet the statutory conditions. ORS made its application without being able to present a programme aggregator. Its appeal to the Bundeskommunikationssenat (Federal Communications Office – BKS) was dismissed. Telekom Austria named Mobilkom Austria as a programme aggregator but the latter, a sister company, did not meet the precondition that it be independent of the applicant. Telekom Austria decided not to appeal, so that both exclusions from the licence procedure are final.

However, the decision to award the licence to Media Broadcast GmbH could still be challenged. The work to launch the operation is due to begin soon, and it is planned to provide services as early as the Euro 2008 football championships. A penetration rate of 50 percent of the Austrian population must be reached within ten months of the date on which the award of the licence becomes final.