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The Spanish Audiencia Nacional Confirms That the Public Broadcaster The Spanish Audiencia Nacional confirms that the public broadcaster Radio Televisión Española (RTVE) could participate and bid for Champions League broadcasting rights against private broadcaster Mediaset Rubén Agote y Albert Raventós World Sports Law Report, may 2014 The battle between Mediaset and Radio Televisión Española (“RTVE”) for the 2012-2013, 2013-2014 y 2014-2015 Champions league TV broadcasting rights has now come to an end. Section Eight of the Contentious-Administrative Division of the Audiencia Nacional has dismissed the appeal by Gestevisión Telecinco (today, Mediaset España Comunicación, “Mediaset”) by its decision of March 21, 2014. The appeal was filed against the April 1, 2011 Secretaría de Estado de Telecomunicaciones y para la Sociedad de la Información decision, which decided to close the request from Mediaset to sanction RTVE. The case debates the possibility that public capital broadcasters participate and bid in public auctions over certain sports events. In particular, in the case at debate, UEFA auctioned its 2012-2013, 2013-2014 y 2014-2015 Champions League matches broadcasting rights in two separate packages: one package included the Wednesday matches, a semi-final and Champions League final; the other package included the Tuesday matches, and the other semi-final. UEFA organized a first auction, where several private and public bidders participated. Only the Wednesdays package of broadcasting rights was adjudicated to a bidder. The Tuesdays package was deemed null and void because UEFA considered that all the bids were too low. It then organized a second bid over the same Tuesdays Champions League matches package. Only two bidders participated in this new “second round” bid: Mediaset and RTVE. Broadcasting rights were adjudicated to RTVE. Mediaset requested in first instance that RTVE was fined for breaching its pubic regulations, and requested that RTVE publicly auctioned its adjudicated rights. This request was dismissed in first instance (the April 1, 2011 Secretaría de Estado de Telecomunicaciones y para la Sociedad de la Información decision). The current 2014 decision addresses the appeal presented by Mediaset against such decision. Mediaset requested in their appeal that the tribunal required the Spanish Administration to start a disciplinary file against RTVE for their breach of Law 8/2009 of August 28 on RTVE Corporation financing (hereinafter, “Law 8/2009”) and Law 7/2010 of March 31 on General Audiovisual Communication (hereinafter, ”LGCA”) and insisted on requiring RTVE to publicly auction its rights. These laws govern the RTVE, its mission, limitations and organization. The case is peculiarly interesting for two reasons: an objective reason, and a subjective reason. From an objective reason, the case deals with the Champions League matches broadcasting rights, the Champions League being the highest football competition. This is of public and high social interest by itself, not only from an intuitive standpoint, but also form a legal perspective. Section 20.1. letter d) of the LGCA includes in its catalogue of events of general interest for society –which has to be listed by the Audiovisual Media State Counsel (Consejo Estatal de Medios Audiovisuales)- “the Football Champions League final”. This encompasses that, in addition to being an event of great commercial broadcasting value, it is also considered of special general interest. From the subjective standpoint, the UEFA, who is the owner of the Champions League broadcasting rights, adjudicated the broadcasting rights to the public operator RTVE. RTVE is limited in its operations by Lay 8/2009 and LGCG as it has to serve its public service mission. The limitations are the following: a) RTVE cannot use certain income to overquote against other competitors over contents of high commercial interest (art. 3.1 Ley 8/2009). b) RTVE cannot (i) underquote the prices of its commercial and services offer, and (ii) cannot use the public funds to overbid against private competitors over broadcasting rights of great value (art. 43.7 LGCA). c) RTVE cannot exceed a 10% of its annual supply, purchases and exter- nal services budget in the acquisition of official sports events broadcasting rights that have been qualified as events of general interest and of great social interest. Olympic and Paralympic games are excluded from this limitation. According to the Audiencia Nacional, none of these limitations concurs in this case. The Tribunal highlights that the referred regulations do not prohibit RTVE from concurring to the Champions League broadcasting auction because, although these rights have a high commercial value, this is not incompatible with the public service mission of the public RTVE operator. The Audiencia Nacional holds a very formal criterion because it deems the two successive rounds of auctions for the Tuesdays package as autonomous or separate auctions. Thus, because UEFA declared the first auction null and void because it deemed the bids too low and held a second auction to allow higher bids, the Audiencia Nacional understands that RTVE did not overbid or overquote because the bids were presented in a separate second auction over the same broadcasting rights. Consequently, even if RTVE materially raised its bid on this second auction, the Audiencia Nacional deems that there was no overbidding or overquoting but that RTVE bid just once in each of the auctions. The Tribunal holds that because there was only one bid in each auction, this cannot be considered overbidding, and therefore, this action is not limited by the RTVE regulations. In deciding, the Tribunal also takes into account the fact that RTVE did not have knowledge of the bids of other competitors, and it holds that RTVE did not exceed its auction bidding limitations on the basis of the documentary evidence produced by RTVE, showing that it did not exceed the 10% of the annual budget in the relevant sports events. Also, the Tribunal argues around whether the object of the bid (the Tuesday Champions League matches) has to be considered of public interest. It is clear that the Champions League final is listed among the events of general interest for society, but it could be challenged whether other matches in the same league would also be deemed of general interest. The Tribunal acknowledges that none of the parties argued in this direction, and concludes that because the auction was not divisible by matches, RTVE had to bid for the total package to obtain the Champions League final match. For all these reasons, the Audiencia Nacional has rejected the Mediaset appeal, and withheld the decision of the administration not to sanction RTVE. This decision is final and cannot be appealed. Therefore, RTVE will be broadcasting the Champions League Tuesday matches again for the 2014-2015 season. .
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