Notification by Norway Pursuant to Article 14, Paragraph 2, of Directive 2010/13/EU

Home , Norkring, Television in Norway, TVNorge

Oslo, 22 April 2013

Notification by Norway pursuant to Article 14, paragraph 2, of Directive 2010/13/EU

Contents: Draft amendments to Regulation no. 153 of 28 February 1997 relating to broadcasting, implementing Norwegian measures pursuant to Article 14 of Directive 2010/13/EU Explanatory document Annexes to the explanatory document o I: List of criteria fulfilled by the draft list of events of major importance for Norwegian society o II: Timeline of the consultation process and list of consulted interested parties o III: Audience ratings and market shares for the events on the draft list

1 Draft Amendments to Regulation no. 153 of 28 February 1997 relating to broadcasting pursuant to Section 2-8 of Act no. 127 of 4 December 1992 relating to broadcasting. Section 5-1 "Events of major importance to society" The following events are to be regarded as events of major importance to society: a) The Summer and Winter Olympic Games in full, organised by the International Olympic Committee (IOC) b) The Men's World Football Championships in full, including the qualifying games with Norwegian participation, organised by the Fédération Internationale de Football Association (FIFA) c) The Men's European Football Championships in full, including qualifying games with Norwegian participation, organised by the Union of European Football Associations (UEFA) d) The Women's World Handball Championships in full, organised by the International Handball Federation (IHF) e) The Women's European Handball Championships in full, organised by the European Handball Federation (EHF) f) The Men's Football Cup Final, organised by the Norwegian Football Federation (NFF) g) The Nordic World Ski Championships in full, organised by the International Ski Federation (FIS) h) The Alpine World Ski Championships in full, organised by the International Ski Federation (FIS) i) The Holmenkollen FIS World Cup Nordic j) The Biathlon World championships in full, organised by the International Biathlon Union (IBU)

Section 5-2 “Television Channels that are received by a substantial portion of the viewers on free television”

A television channel is received by a substantial portion of the viewers on free television if the channel may be received by at least 90 percent of viewers with no additional costs apart from the licence fee and / or basic package fee.

Section 5-3 “Procedural provisions and setting of market price” a) A television channel that does not meet the conditions in Section 5-2, and that has acquired an exclusive right to broadcast an event listed in Section 5-1, is obliged to provide a written offer for resale of the right to any television channel that meets the requirements in Section 5-2 and that requests the right to broadcast the event. b) An offer pursuant to litra a) must be given no later than one month after receipt of a request from a television channel that meets the conditions in Section 5-2.

2 c) A television channel that meets the conditions in Section 5-2, and that has received an offer pursuant to litra a) must within one month after receipt of the offer respond whether the offer is accepted or not. d) If the parties cannot reach agreement on remuneration for the broadcasting right to an event in Section 5-1, any of the parties may no later than six months before the event takes place request that the Media Authority set the remuneration for the rights to the event. The remuneration for the broadcast rights shall be set in accordance with market principles. The Media Authority is hereby delegated the authority to issue guidelines on the remuneration for the resale of listed events in Section 5-1 according to market principles. e) A television channel that does not meet the conditions in Section 5-2 may only exercise its exclusive right to an event listed in Section 5-1, if no requests pursuant to litra a) has been received from any television channel meeting the conditions of Section 5-2 within ten months before the event takes place or no television channels that meet the conditions in Section 5-2 is willing to acquire the broadcasting rights at market price. f) The time limits in this provision shall not apply if an exclusive right to a television broadcast of an event listed in Section 5-1 is sold by a rights-holder to a television channel that does not meet the conditions in Section 5-2, less than ten months in advance of the event listed in Section 5-1.

Section 5-4 “Conditions for the deferred or partial broadcasting of the events” A television channel that has acquired an event of major importance for society in accordance with Section 5-3, shall broadcast the entire event live. As an exception to paragraph 1, the television channel may nevertheless broadcast parts of the event live, or wholly or partially deferred if: a) the event takes place at night between 00:00 and 6:00 a.m. GMT +1, b) the event consists of several parallel events, or c) other factors indicate that it would be in the interests of the public that the television channel broadcast part of the event live, or wholly or partially deferred.

Section 5-5 “Report of acquisitions of exclusive rights to major events” A television channel that acquires exclusive rights to all or parts of events that are listed in Section 5-1 or the lists of events of major importance to society in other EEA countries that have been approved by the European Commission or the EFTA Surveillance Authority and published in the Official Journal and the EEA Supplement to the Official Journal, shall immediately report such acquisitions to the Norwegian Media Authority.

3 Section 5-6 Obligations in relation to other EEA states’ lists events of major importance to society A television channel may only exercise broadcasting rights in another EEA state in accordance with the measures that this EEA state has notified to, and for which it has obtained approval from, the European Commission or EFTA Surveillance Authority.

Section 10-2 “Financial penalty – discretionary determination”

For violations of provisions in Chapter 3 of the Act or rules pursuant to Chapter 3, other than those mentioned in Section 10-1 of this Regulation, violation of Section 6-4 of the Act, or Sections 1-4, 2-5, 2-6, 5-3, 5-4, 5-5, 5-6 and 7-6, no. 1 of this Regulation, the Norwegian Media Authority may impose a financial penalty based on a discretionary assessment. The same applies to a violation of license conditions that include clearly defined obligations stipulated pursuant to Section 2-1, second paragraph of the Act.

4 1. Introduction

Pursuant to Article 14 of Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), each Member State may take measures in accordance with Union law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial part of the public in that Member State of the possibility of following such events by live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or non national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due time. In so doing the Member State concerned shall also determine whether these events should be available by whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage.

Article 14 of the Audiovisual Media Services Directive is implemented in Section 2-8 of the Broadcasting Act; cf. Proposition no. 2 (1999-2000) to the Odelsting and Recommendation no. 26 (1999-2000) to the Odelsting. Section 2-8 of the Broadcasting Act reads as follows:

“A broadcaster who has purchased the exclusive right to televise events of major importance for society may not exercise such exclusive right in such a way as to deprive a substantial proportion of the public of the possibility of following such events on free television.

Where a broadcaster under Norwegian jurisdiction has purchased the exclusive right to televise events which a country that has acceded to the EEA Agreement has declared to be of major importance for society and which have been approved by the European Commission or EFTA's Surveillance Authority, the broadcaster may not exercise such exclusive right in such a way as to deprive a substantial proportion of the public in the country concerned of the possibility of following such events on free television

The first paragraph encompasses agreements on the exercise of exclusive rights entered into after 30 July 1997 in respect of events taking place after the commencement of this Act. The second paragraph encompasses agreements on the exercise of exclusive rights entered into after 30 July 1997 in respect of events taking place after the commencement of this Act and after a country that has acceded to the EEA Agreement has implemented provisions corresponding to the first paragraph of this Section.

The King may issue regulations containing further rules on the implementation of the first, second and third paragraph, including rules requiring the drawing up of a

5 list of events that are of major importance for society and rules concerning the resolution of price conflicts.”

The digitisation of TV has resulted in an increase in pay-TV services in Norway. This has led to increased competition for the rights to major sporting events and an increased risk that free television channels must yield to premium television channels in the competition for the rights to broadcast events of major importance for society. The Ministry of Culture (the Ministry) finds that it is important to stay one step ahead of such a development out of consideration to the public. The Ministry therefore considers it appropriate to a draw up a list of designated events of major importance for the Norwegian society that must be broadcast on free television and reach a substantial proportion of the public.

2. Description of the Norwegian television market

In 2011, 96 per cent (4, 6 million) of a total Norwegian population of 5 million had access to television1. By the end of 2011 the total number of subscriptions to television services was just over 2.16 million.

Broadcasters Broadcasters operating in the Norwegian TV-market may be divided into non- commercial and commercial public service broadcasters NRK 1, NRK2, NRK 3 and TV 2, other general broadcasters TV 3 and TVNorge etc, niche-channels TV 2 Zebra, TV 2 Bliss, FEM, MAX, VOX, Viasat 4 etc, and premium content channels Canal +, TV 2 Sport and Viasat Film etc.

The non-commercial public service broadcaster, the NRK, derives its income almost entirely from TV licence fees. The NRK has stipulated that income from licence fees will total NOK 5,12 billion in 2013. The other channels, except for the premium content channels, are funded by income from advertising and/or income from subscribers to basic cable/satellite subscriptions packages and user fees. The premium content channels are generally financed through subscription fees or user fees.

The reach and reception of the NRK’s channels is 100 per cent2. Among the commercial TV channels, TV 2, TVNorge and TV 3 have a reach and reception above 90 per cent3 of the households.

1 Statistics Norway “Norsk Mediebarometer 2011”: http://www.ssb.no/kultur-og-fritid/artikler-og- publikasjoner/_attachment/79790?_ts=13a303533e0

2 TNS Gallup official universe and distribution figures for TV-channels May 2011: http://tv-research.tns- gallup.no/Kanaldistribusjon/Distribusjon.asp

6 NRK 1 is the most popular channel measured in audience shares. NRK 1 had a rating of 31,8 per cent of the population in 2011. TV 2 had a rating of 19,3 per cent, TVNorge 7,9 per cent and TV 3 5,3 per cent.

Distribution of TV to the end user4 Cable-TV networks are the dominant distribution method of TV in Norway. Many networks have a limited number of connected households and many are owned by households collectively, primarily by housing associations. Large providers such as Canal Digital Kabel TV AS and Get AS supply TV signals through their own networks directly to end users as well as to subscribers in household-owned networks. The number of subscriptions to cable-TV was approximately 955,000 at the end of 2011.

Canal Digital Norge AS and Viasat AS transmit TV signals via satellite (DTH) to end users in Norway. At the end of 2011 nearly 655,000 subscribed to satellite TV-services.

Towards the end of 2009 the analogue terrestrial television network was fully digitised. The last analogue terrestrial signals were switched off on 1 December 2009. Norsk Televisjon AS (NTV) has a licence to develop and operate the digital terrestrial network (DTT), while its sister company RiksTV AS offers TV channels or programme packages on the network against a fee. The channels from the NRK, local television channels and Frikanalen5 can be received free of charge from RiksTV. At the end of 2011, there were almost 289,000 (paid) subscriptions in the digital terrestrial network.

Networks based on fibre optics (IP-TV) aimed at end-users have been rolled out in recent years. At the end of 2011 more than 262,000 households subscribed to TV via fibre networks.

3. Preparation of measures at national level

The preparations at the national level prior to setting up a list of events of major interest for society have been carried out in the order recommended by the European Commission6. The process consists of the following steps: consultation of interested parties, notification to the EFTA Surveillance Authority and adoption of measures at national level.

4 The Norwegian Electronic Communications Services Market 2011, Norwegian Post and Telecommunications Authority, May 2012 : http://www.npt.no/ikbViewer/Content/138141/Det%20norske%20markedet%20for%20elektronisk%20kommuni kasjon%202011.pdf 5 Frikanalen (The Free Channel) is owned by more than 60 different non-profit organizations in Norway. Frikanalen is an “open channel”, which means that anyone who wishes - organizations or individuals – may air their programs on the channel 6 Ref. CC TVSF (97) 9/3 7 On 24 June 2011, the Ministry of Culture submitted a proposal7 on events of major importance for society in a letter to relevant interested parties and stakeholders. On the same date, the Ministry also published a consultation document on the Ministry’s web site, requesting interested parties to comment on the proposal. The proposal was made available in both Norwegian and English versions. The three-month long consultation, concluded on 24 September 2011. The Ministry received a total of 29 responses. Opinions on the specific measures of the proposal are detailed below, where relevant.

All parties and stakeholders that responded to the consultation are listed in Annex II. The Ministry’s proposal included the following events which include disciplines for both men and women unless otherwise specified:

- the Summer and Winter Olympic games; - the Football World Cup for men (including qualifying group matches of the Norwegian team) - the European Football Championships for men (including qualifying group matches of the Norwegian team) - the World Championships in handball for women (including qualifying group matches of the Norwegian team) - the European Championships in handball for women (including qualifying group matches of the Norwegian team) - the Norwegian Cup Final in football for men - the FIS Nordic World Ski Championships - the FIS Alpine World Ski Championships - the Biathlon World Championships - Holmenkollen FIS World Cup Nordic

In addition to the list, the proposal also included proposals on the definitions of “significant proportion of the public” and “free television”, and provisions concerning remuneration for the transfer of rights, conflict resolution, procedural provisions and conditions for deferred coverage.

4. The events of major importance to society in Norway

4.1.The Audiovisual Media Services Directive There are no specific guidelines in the Audiovisual Media Services Directive concerning what events can be included in the list. The events must be of major importance for society in all Member States, in a specific Member State or in an

7 Consultation on a proposal for amendments to the Broadcasting Regulations – listing of events of major importance for society, ref 2006/02171 ME/ME3 HHO:elt http://www.regjeringen.no/en/dep/kud/documents/hoeringer/hoeringsdok/2011/consultation-on-a-proposal-for- amendment/consultation-on-a-proposal-for-amendment.html?id=649937

8 important part of a Member State. The events must be organised by an organisation that has the right to sell the events. In recital 49 in the preamble of Directive 2010/13/EU, the Olympic Games and the Football World Cup and European Football Championships are mentioned as examples of the types of events that may be included on such a list. This is, however, not an exhaustive list. In accordance with the guidelines8 by the European Commission in connection with Article 14, at least two of the four following criteria must be met in order for an event to be approved for inclusion on a country's list: - the event has traditionally been broadcast on free television and has commanded large television audiences in the Member State concerned; - the event has a generally recognised, distinct cultural importance for the population in the Member State concerned, in particular as a catalyst of its cultural identity; - it involves the national team in the sport concerned in a major international tournament; - the event and its outcome has a special general resonance in the relevant Member State, not simply a significance to those who ordinarily follow the sport or activity concerned. In addition, the Member States must ensure that the listed events are drawn up in a clear and transparent manner. It must be stated, for example, whether the selection encompasses all or parts of a championship. All affected parties must be consulted and be given the opportunity to express their opinion on the list. Finally, the Member States must ensure that the measures are in accordance with Union law.

4.2. Opinions of the parties consulted Among the bodies that find there is a need to adopt the list, several state that it is in the best interests of society that as many people as possible are given the opportunity to watch the proposed major events. The Norwegian Media Authority makes reference in this connection to the fact that the right to receive information, including live images, is a fundamental aspect of the freedom of speech. The Norwegian Broadcasting Corporation (the NRK) states that there is a trend that the rights to major sporting events being won by commercial players with premium pay channels, and that it is therefore appropriate to implement regulatory measures to ensure that broadcasts from important events will still be available free of charge to the entire population. Altibox, TV 2, TVNorge, Modern Times Group, C More Entertainment, Telenor, the Norwegian Football Association claim that there is no need to adopt such a list, because the events are generally broadcast on free television channels that reach a significant portion of the population, and that the market will regulate itself. The Norwegian Competition Authority, the Norwegian Football Association, the Norwegian Track and Field Federation, C More, the FIFA and the UEFA maintain that

Cf. CC TVSF (97) 9/3 9 the list should not be implemented, since it may potentially reduce the revenues of sports organisations and the competitiveness of non-qualified television channels. The FIFA finds that the Ministry has not adequately clarified which of the Commission's four criteria the Ministry has based its selection of proposed events and that the consultation process, thus, is not in accordance with the Public Administration Act and the Audiovisual Media Services Directive's requirement that the list be prepared in a clear and transparent manner. Some of the sports organisations that support the proposal express the opinion that the list should be expanded to include additional events. The Norwegian Skating Association is of the opinion that the World and European speed skating Championships (all-round and individual distances) meet the conditions stipulated in the Commission's guidelines and should be included in the list. The Norwegian Biathlon Federation proposes that the Biathlon World Cup in Holmenkollen be added to the list. The Norwegian Handball Association proposes that the list be expanded to include the Men's World and European Handball Championships. The Norwegian Track and Field Federation is of the opinion that the World and European Outdoor Track and Field Championships should be included on the list if such a list is adopted.

4.3. General remarks Due to a low risk of the event being broadcast exclusively on pay-tv, the Ministry has decided not to include the qualifying matches of the Women´s national handball team on the list. The Ministry has not found any grounds for making other changes to the events on the list. Nevertheless, the Ministry would like to point out that it may be relevant to assess whether the list should be revised in a few years in accordance with the Audiovisual Media Services Directive's prescribed procedure. In the consultation process, the Ministry stated in a clear and unambiguous manner what events are proposed for inclusion on the list and the legal basis for the proposal. Reference was made to the Commission criteria9 for designating events of major importance, and that all the events must meet at least two of the Commission's four criteria. The Ministry therefore finds that the consultation process has been carried out in accordance with the Public Administration Act and the Audiovisual Media Services Directive. Annex I contains a consolidated list of the events of major importance for society in Norway, including a list summarising the criteria fulfilled for each of the listed events. Viewing figures and market shares of the listed events are listed in Annex III.

9Cf. CC TVSF (97) 9/3 10 4.4. Detailed justification for the designation of events of major importance for society

The Summer and Winter Olympic Games, organised by the International Olympic Committee (IOC) in its entirety

Opinions The International Olympic Committee The International Olympic Committee considers that reserving the entire Summer and Winter Olympic Games for free-to-air broadcasting is disproportionate, and would strongly urge a revised approach. The International Olympic Committee notes that Member States have invariably reserved for free-to-air broadcasting more content than their free-to-air television channels have been able to broadcast during the 16 days of the Games. At the same time, non free-to-air broadcasters are not interested in acquiring rights to broadcast Olympic content, which is reserved for free-to-air television.

The Norwegian Olympic and Paralympic committee and confederation of sports (NIF), NIF is pleased that Olympic Games, both the Summer- and Winter-games is included on the list. NIF also advocates the inclusion of the Paralympics Summer- and Winter-games.

Justification The Summer Olympic Games attract enormous interest in Norway. Norwegian athletes have always participated in a wide range of individual and group disciplines in the Olympics. The Summer Games have traditionally been broadcast on free television and has commanded large television audiences in Norway. The event is watched not only by viewers that ordinarily follow the sports concerned. During the Olympic Games in Beijing, viewers watched 50 minutes more than the average for the month of August. In the Beijing 2008 Olympic games average audience figures on NRK 1 (143 000) were lower due to off-peak broadcast hours. The figure constitutes a 50, 4 per cent market share. Due to the long duration of the Games and the wide range of sports covered, however, average figures do not accurately reflect the popularity of the individual disciplines. For example the handball final for women on NRK1 attracted 1.093.000 viewers.

The Winter Olympic Games are even more popular than the Summer Games and enjoy very high viewing figures. A large number of Norwegian athletes participate in the Winter Games in both individual and group disciplines. The Winter Games have traditionally been broadcast on free television and has commanded large television audiences in Norway, and is watched not only by viewers that ordinarily follow the sports concerned. The Vancouver 2010 Winter Olympics attracted on average 260 000 viewers. The average viewers of the 2010 Olympics were lower than usual due to off-peak broadcast hours. Some of the individual disciplines of the 2010 Games, however, enjoyed very high ratings. The Cross-country skiing relay 4x10 km for men attracted more than 1,8 million viewers.

The Olympic Games are mentioned in recital 18 of the Television without Frontiers Directive as an example of events of major importance for society.

11 The FIFA World Cup – in full and the national team’s matches in the qualifying round

Opinions The Fédération Internationale de Football Association (FIFA): FIFA is of the opinion that the matches of the FIFA World Cup do not satisfy the required criteria for listing. FIFA’s observations concern the “non-prime” matches of the World Cup only, since FIFA invariably requires of all its licensees to broadcast nationwide and live the “prime” matches of the FIFA World Cup on free-to-air television. FIFA argues that the “non- prime” matches of the World Cup do not fulfil the criteria because “non-prime” matches e.g. are not played by the national team, do not attract a sufficient amount of TV-viewers and that it is questionable that these matches have special resonance in Norway.

The Football Association of Norway (NFF): The NFF oppose a listing of the matches of the Norwegian team in the qualifying rounds of the World Cup. The NFF is of the opinion that a listing of the event may reduce the value of the rights.

Justification The FIFA World Cup and the national team’s matches in the qualifying round are among the most popular sports events in Norway. The Norwegian public and media take great interest in the Norwegian team’s qualifying matches as well as the matches in the final round, especially the final matches. These events have traditionally been broadcast on free television and have commanded large television audiences in Norway. During the 2010 Wold Cup, the final between the Netherlands and Spain attracted over 1, 2 million viewers. The qualifying matches of the national team attract on average more than 630 000 viewers.

The final round of the World Cup should be considered a single event in which matches between other countries also affect the matches that Norway may play and the overall result. The non-prime matches may therefore, depending on the Norwegian team’s results in the World Cup, attract a sufficient number of TV-viewers and have a special resonance in Norway. The World Cup final round is mentioned in recital 18 of the Television without Frontiers Directive as an example of events of major importance for society.

The men’s European Football Championships, organised by Union of European Football Associations (UEFA)- the final tournament and the national team’s matches in the qualifying round

Opinions

UEFA UEFA finds it problematic that the proposed Norwegian list designates all the Norway national team’s qualification matches and all matches in the European Football Championships (EURO) as listed events. UEFA does not believe that all such matches can reasonably be described as events of major importance to the Norwegian society. UEFA

12 also believes such a regime would significantly distort competition on the Norwegian market for the media rights to the EURO.

The Football Association of Norway (NFF): The NFF opposes a listing of the matches of the Norwegian team in the qualifying round of the men’s European Football Championships. The NFF is of the opinion that a listing of the event may reduce the value of the rights.

Justification The men’s European Football Championships and the national team’s matches in the qualifying round are among the most popular sports events on television in Norway. The Norwegian public and media take great interest in the Norwegian team’s qualifying matches as well as the matches in the final round, especially the final matches. The event has traditionally been broadcast on free television and has commanded large television audiences in Norway. The 2008 Championships attracted on average 462 000 viewers. Several of the final matches attracted on average more than 800 000 viewers. The final of the 2008 European Football Championship between Germany and Spain attracted more than 1,1 million viewers.

The final round of the European Football Championships should be treated as a single event in which matches between other countries also affect the matches that Norway may play as well as the overall result. The non-prime matches may therefore, depending on the Norwegian team’s results in the European Football Championships, attract a sufficient number of TV- viewers. The European Football Championships final round is mentioned in recital 18 of the Television without Frontiers Directive as an example of events of major importance for society.

The men’s Norwegian Football Cup final

Opinions The Football Association of Norway (NFF): The NFF opposes a listing of the men’s Norwegian Cup final. The NFF is of the opinion that a listing of the event may reduce the value of the rights.

Justification There is a strong interest in local football clubs in Norway. The Norwegian Cup final has traditionally been broadcast on free television and has enjoyed high viewing figures. The 2011 Cup Final attracted more than 800 000 viewers. The high viewing figures the event attracts clearly indicate that the Final of the Norwegian Football Cup is of national interest. The event attracts significant public interest also outside audiences that usually follow the matches of the local football clubs.

13 The World Championships in handball for women organised by the International Handball Federation – the final tournament

Opinions10 The Norwegian Handball Association The Norwegian Handball Association does not have an opinion concerning the proposal to list the women’s qualifying matches of the World Championships in handball. However, the Norwegian Handball Association is of the opinion that the listing must not interfere with the current market mechanisms that lead to a market-based valuation of the broadcasting rights.

Justification The women’s national handball team has enjoyed great success over a long period. The national team was the winning team of the Brazil 2011 World Championships in handball for women. Because of the national team’s success, the World Championships, has a general resonance in Norway, and not simply significance to those who ordinarily follow the sport. The event has traditionally been broadcast on free television and commanded large television audiences. The final matches in the 2011 championships attracted on average over 1 million viewers. The matches of the Norwegian team attracted on average 774 000 viewers.

The final round of the World Championships in handball for women should be treated as a single event in which matches between other countries also affect the matches that Norway may play as well as the overall result.

The European Championships in handball for women organized by the European Handball Federation- the final tournament

Opinions11 The Norwegian Handball Association The Norwegian Handball Association does not have an opinion concerning the proposal to list the women’s qualifying matches of the European Championships in handball. However, the Norwegian Handball Association is of the opinion that the listing must not interfere with the current market mechanisms that lead to a market-based valuation of the broadcasting rights.

Justification The women’s national team in handball has enjoyed great success over an extended period. The national team was the winning team of the Norway/Denmark 2010 European Championships in handball for women. Because of the national team’s success the European Championships has a general resonance in Norway, and not simply a significance to those who ordinarily follow the sport. The event has traditionally been broadcast on free television and commands large television audiences. The final matches in the 2010 championships

10The International Handball Federation did not respond to the request for an opinion concerning the proposal to list the World Championships in handball for women.

11 ibid 14 attracted on average over 1 million viewers.

The final round of the European Championships in handball for women should be treated as a single event in which matches between other countries also affect the matches that Norway may play as well as the overall result.

The FIS Nordic World Ski Championships

Opinions12

The Norwegian Ski Federation The Norwegian Ski Federation opposes the list in general. The Norwegian Ski Federation is of the opinion that the list will weaken the rights owners’ position in the media-market.

Justification The FIS Nordic World Ski Championships is a popular event in Norway. Cross-country skiing is deeply rooted in Norwegian culture and constitute an important element of Norwegian Cultural heritage. The FIS World Ski Championships can therefore be said to have a generally recognised, distinct cultural importance for the Norwegian population. The FIS World Ski Championships has traditionally been broadcast on free television and has commanded large television audiences. The FIS World Ski Championships often has an audience share between 70 and 80 percent. The high viewing figures this event achieves illustrate that the event and its outcome has a special general resonance in Norway, and not simply a significance to those who ordinarily follow the sport.

The FIS Alpine World Ski Championships

Opinions 13 The Norwegian Ski Federation The Norwegian Ski Federation opposes the list in general. The Norwegian Ski Federation is of the opinion that the list will weaken the rights owners’ position in the media-market.

Justification The FIS Alpine World Ski Championships is a popular event in Norway. Skiing is deeply rooted in Norwegian culture and constitutes an important element of the Norwegian cultural heritage. The FIS Alpine Ski Championships can therefore be said to have a generally recognised, distinct cultural importance for the Norwegian population. Norway has had a string of winning alpine skiers, which have had great impact on the interest for the discipline

12 The International Ski Federation did not respond to the request for an opinion concerning the proposal to list the FIS Nordic World Ski Championships.

13 The International Ski Federation did not respond to the request for an opinion concerning the proposal to list the FIS Alpine World Ski Championships.

15 in Norway. The event and its outcome therefore have a special general resonance in Norway and not simply to those who ordinarily follow the sports.

Holmenkollen FIS World Cup Nordic

Opinions14 The Norwegian Ski Federation The Norwegian Ski Federation opposes the list in general. The Norwegian Ski Federation is of the opinion that the list will weaken the rights owners’ position in the media-market.

Justification The Holmenkollen FIS World Cup Nordic is an annual event in Holmenkollen, Oslo and a part of the FIS World Cup Nordic. The event takes place over the course of a weekend in March every year, and is one of the most important annual sports events in Norway. The Holmenkollen FIS World Cup Nordic has long traditions, can be said to have a generally recognised, distinct cultural importance for the Norwegian population. The event has traditionally been broadcast on free television and has commanded large television audiences in Norway. The disciplines in the 2011 Holmenkollen FIS World Cup Nordic are on average followed by between 500 000 and almost 700 000 viewers. Because of the cultural significance of the event, the outcome of the event has a special general resonance in Norway, and not simply to those who ordinarily follow the sport.

The Biathlon World Ski Championships

Opinions

The Norwegian Biathlon Association The Norwegian Biathlon Association supports the proposed list. The Norwegian Biathlon Association also suggests that the Holmenkollen FIS World Cup Biathlon would fulfil the criteria for an event of major importance for society in Norway.

Justification Biathlon is an important winter sport in Norway that enjoys wide interest in the population. Biathlon is a part of Norway’s ski heritage and the Biathlon World Ski Championships has a special resonance in Norway as a part of the Norwegian cultural identity. The Biathlon World Cup has traditionally been broadcast on free television and has commanded large television audiences. The most popular disciplines for men and women have enjoyed rating figures close to 1 million viewers and an audience share over 80 percent. Due to the considerable interest for this event, the event and its outcome has a special resonance in Norway, also for those who ordinarily do not follow the sport.

14 The International Ski Federation did not respond to the request for an opinion concerning the proposal to list the FIS Nordic World Ski Championships.

16 5. Qualified TV-channels

The notified provisions entail that television companies that do not reach a substantial proportion of the viewers and/or offer free television will be obligated to offer for resale the broadcasting rights to the listed events to television companies that offer free television and are received by a substantial proportion of the viewers, and is willing to acquire the right at market price.

5.1.Free television In the consultation paper, the Ministry made reference to the fact that, after the closure of the analogue terrestrial network, the majority of television viewers have become customers of television distributors, where it is not possible to receive television services without a basic tier subscription or paying a basic fee. The Ministry therefore proposed that free television should be defined as television channels that are available without any form of payment other than a licence fee and/or basic tier subscription or basic fee. Among the broadcasters that responded to the the proposal, TVNorge TV 2 and C More expressed that it was not adequately defined how the terms basic tier subscription or basic fee should be interpreted. These broadcasters hold the opinion that it would be unfortunate to link the provision to a basic tier subscription, because this would give the television distributors an advantage when negotiating the distribution of basic tier subscriptions. After the closure of the analogue terrestrial network, only the NRK's television channels can be received unencrypted and free of charge. For this reason, it is necessary to expand the traditional understanding of free television in order to avoid that the NRK becomes the sole qualified broadcaster under Norwegian jurisdiction that may broadcast the events on the list. The most common form of broadcast funding in Norway, with the exception of the licence fee, is payment of a basic tier subscription to the various basic offerings from the television distributors. Among the traditional television distributors, only RiksTV does not require a basic tier subscription for the delivery of television signals. The Ministry therefore has concluded that “free television” may be defined as television channels that can be received free of charge, or without any form of payment other than the licence fee and/or basic tier subscription fee. The basic tier subscription fee shall be understood as the least expensive channel package that the television distributors offer or require a subscription to in order to receive television signals. This includes all channels that are available in a basic tier subscription package or can be freely selected in a basic tier package at no additional cost. Over the last years a few Norwegian TV-distributors have introduced the option to subscribe to individual TV-channels. Among the major TV-distributors only RiksTV has introduced the option to choose TV-channels individually. As mentioned, the remaining major television distributors deliver their services on the condition that subscribers accept to subscribe to a basic channel package. The Ministry is therefore of the opinion that the proposed definition of free television will cover the most prevailing mode of

17 funding in the Norwegian television market at the moment. In the event that the most prevailing business models in the television market should change from channel packages to for example individual or à la carte sale of channels, the Ministry will assess the need for a change of the definition of free television.

5.2. Substantial part of the public 5.2.1. Current regulation In the preparatory works15 to the Norwegian implementation of article 3a of the Television without frontiers directive in the Broadcasting Act, it is stated that “at least 90 percent of the viewers in Norway must be able to receive television broadcasts in order for a broadcaster to be deemed to cover a substantial proportion of the viewers”. The same was also stated in the consultation paper on the implementation of the Television without frontiers directive into Norwegian law, cf. Consultation on a proposal for amendments to the Broadcasting Act, dated 8 August 1998. The current provision in Section 5-1 must therefore be interpreted as meaning that 90 per cent of viewers must be able to receive the broadcasts, i.e. the television channel must have a technical coverage of 90 per cent.

5.2.2. Consultation In the consultation paper, the Ministry proposed to replace the current definition of a substantial share of the viewers from television channels with a potential coverage of 90 per cent to actual coverage of 90 per cent. It was emphasised that a channel has 90 per cent actual coverage if at least 90 per cent of the viewers subscribe to the channel.

5.2.3. Views of the commenting bodies In their responses to the consultation paper, TV 2, TVNorge, C More and NFF expressed the opinion that it would be unfortunate to link the definition of a substantial share of the viewers to actual coverage of 90 per cent. The objections were related to the fact that it would be more complicated to determine actual coverage than technical coverage. It was also pointed out that it is in fact the distributors who determine what channels to distribute in a basic tier subscription and that the proposal thus may upset the relationship between distributors and broadcasters. A broadcaster may depend on a specific distributor in order to achieve actual coverage of 90 per cent. Both TVNorge and TV 2 expressed that the criterion related to substantial proportion of the public should be related to potential coverage.

5.2.4. The Ministry’s conclusions Due to the reactions of the consulted parties, and the potential impact on the balance between broadcasters and distributors, the Ministry has concluded that the current

Proposition no. 2 to the Odelsting (1999-2000) 18 substantial content of the definition of significant portion of viewers in the Broadcasting Regulations Section 5-1 should be retained. Retaining the current definition of potential coverage will promote competition for the rights because a larger proportion of broadcasters will be eligible to bid on the rights included in the list. At the same time the cultural policy rationale for setting up the list will be maintained in a satisfactory manner, since the events must be made available on channels that 90 per cent of viewers potentially may access. The criterion will in practice cover all channels that are available in the basic tier subscription packages form the satellite operators Canal Digital and Viasat, and the DTT-operator RiksTV.

6. Compensation for the relicensing of exclusive rights

In the consultation process, the Ministry proposed that it seems reasonable that the market price for similar television programmes would form the basis for determining the price. In this connection the Ministry referred to the fact that this was stipulated in the preparatory works16 for the Broadcasting Act in accordance with practice in other countries that have adopted lists. There was broad agreement in the consultation process that the market price for similar rights should form the basis for determining the price. Some of the consulted bodies, including TV 2 and the University of Oslo, pointed out that if the market price is to be calculated according to what the non-qualified television channel had paid or is willing to pay, then a situation can arise in which pay television channels are willing to offer more than free channels. In this case there is a risk that the free channels will not be willing to pay the price that is determined. The University of Oslo therefore proposes in its consultation statement that the price should be determined through competition between the free television channels. The Ministry finds that the market price for broadcasting rights should form the basis for determining the price. The question of what price should be paid for the transfer of broadcasting rights will in practice only arise in situations where a non-qualified broadcaster has initially purchased the rights. Disputes concerning the size of the remuneration are to be resolved by the Norwegian Media Authority, cf. the notified measures concerning conflict resolution.

7. Conflict resolution

In the consultation process the Ministry proposed that each of the parties may request the Norwegian Media Authority for an advisory statement on what should be deemed to be a fair market price, and that the Norwegian Media Authority should prepare detailed guidelines for price determination. In cases where the parties are not able to agree on a

Proposition no. 2 to the Odelsting (1999-2000) p. 25 19 price after the Norwegian Media Authority has issued an advisory statement, the Ministry proposes that the parties must bring the matter before the courts.

In the consultation process, the Ministry also proposed alternative dispute resolution mechanisms, in which the Norwegian Media Authority would be assigned a more active role in the event of a dispute between the parties, for example that the Norwegian Media Authority would be given the authority to resolve disputes and/or order non- qualified broadcasters to sell broadcasting rights to qualified broadcasters.

In the consultation, several of the bodies criticised the proposal that the Norwegian Media Authority was to function as an advisory body in the event of price disputes. TV 2 points out that the Norwegian Media Authority would not normally have, nor would it be able to obtain, access to the terms and prices related to broadcasting rights. The Norwegian Media Authority pointed out that such an assessment would be time- consuming, and that it is doubtful whether an advisory statement would have any decisive role, since the parties nevertheless are free to try the case before the courts. In the event that the Norwegian Media Authority should be assigned a role in connection with determining the market price, it assumed that it would be more appropriate that it be given the authority to resolve disputes. The notified measures entail that the Norwegian Media Authority will be assigned the task of issuing a binding decision on what must be regarded as a fair market price for broadcasting rights. It will be possible to appeal such decisions to the Media Appeals Board. The background for these measures is the fact that these matters most likely may be resolved more rapidly and efficiently by the Norwegian Media Authority and the Media Appeals Board, than by the courts The Media Authority's decisions pursuant to the provisions concerning the events may be appealed to the Media Appeals Board. The independent Media Appeals board has been handling appeals over the decisions made by the Media Authority pursuant to the Broadcasting Act and Regulations since 2011. The Ministry does not see the need for special deadlines for the Media Appeals Board, since only a fraction of the cases handled by the Media Authority are appealed to the Media Appeals Board. According to the draft regulations Section 5-3 d), the Norwegian Media Authority has been assigned the authority to issue detailed guidelines for determining the market price. The Media Authority will be obliged to consult relevant parties and stakeholders on any proposal for such guidelines before they can enter into force. In order to ensure that the market price guidelines are drawn up before the list enters into force, the Ministry will request that the Media Authority conduct a consultation on this matter during the period before the notified provisions have been published in the EEA Bulletin and sanctioned by the King in Council, cf. chapter 12.

8. Procedural provisions

In the consultation process, the Ministry proposed a procedure to ensure that the events are broadcast by a qualified television company. The Ministry is of the opinion

20 that such a procedure is appropriate, both to ensure that a transfer of rights is completed before the event takes place and to provide non-qualified broadcasters a degree of predictability with regard to the possibility of exploiting the exclusive rights that they have acquired if no qualified television channel wants to acquire the rights at market price. Among the consulted bodies, TV 2, TVNorge, the Norwegian Football Federation (NFF) and C More Entertainment expressed objections to the proposal of procedural rules. TV 2 finds that it should be left to the discretion of the parties themselves to carry out the necessary negotiations and that only the deadline for the transfer of rights should be stipulated. TV 2 also finds that the proposed procedural rules do not sufficiently resolve situations where two qualified television channels submit offers for the same event. The Ministry assumes that the parties themselves in most cases will ensure that the rights are transferred well in advance of the events taking place. Nevertheless, the Ministry finds that there is a need to establish a procedure that ensures that the objectives of the regulations are achieved. The Ministry finds it expedient to maintain the principles of the procedural provisions that were proposed in the consultation, cf. draft regulations section 5-2. This procedure gives non-qualified television companies a level of predictability with regard to the exploitation of the exclusive rights they have acquired. In the consultation the Ministry proposed that a qualified broadcaster may acquire broadcasting rights to parts of an event on the list, such as selected disciplines of the Summer Olympics. TV 2 was critical of this proposal, since a non-qualified TV channel after having fulfilled the obligation to re-sell rights to parts an event may be left with the broadcasting rights to the less attractive disciplines of the event. The Ministry shares the concern raised by TV 2 in this regard, and finds that the proposed provision may have negative effects for a non-qualified broadcaster that has acquired an exclusive right to broadcast from an event in full. The Ministry has therefore decided that a qualified television channel that expresses an interest in acquiring broadcasting rights to the events in the list must submit a request to acquire the right to broadcast from the event in its entirety.

9. Conditions for deferred or partial coverage In the consultation paper, the Ministry proposed specific conditions for when the listed events may be made available as a deferred coverage of the event. Several of the bodies consulted objected to the Ministry's proposal. The most common objection being that the proposal interferes directly with the broadcasters' editorial independence, and that it will be impossible to offer live coverage of entire events consisting of several matches or disciplines . The Ministry finds that there is a need for conditions that regulate when a listed event may be made available as partially live, or wholly or partially as a deferred broadcast. A qualified television company that has acquired the rights to the events on the list pursuant to Section 5-3 a) must as a rule broadcast the entire event live. The

21 broadcaster may however broadcast the event partially live, or wholly or partially as a deferred broadcast if the event takes place at night between 24.00 and 06.00, or the event consists of several parallel events, or other factors indicate that it is in the the interest of the public that the event be televised partially live, or wholly or partially as a deferred broadcast. “Other factors” may be other events in the public’s interest, such as “breaking news” broadcasts, or other factors that imply that it will be in the public’s interest that the event is broadcast partially live, or wholly or partially as a recorded broadcast.

10. Supervision The Norwegian Media Authority, as the supervisory body in the area of broadcasting, will be assigned additional supervisory responsibility to ensure that the provisions concerning the events of major importance are observed by the television companies. In addition to resolving disputes related to price and clarifying which broadcasters are qualified, the Norwegian Media Authority will supervise non-qualified television companies in order to ensure that exclusive rights are not exploited in violation of notified measures. The Norwegian Media Authority has an independent supervisory role pursuant to the provisions concerning important events. The Ministry of Culture and the King cannot instruct the Norwegian Media Authority in individual cases, or reverse the Norwegian Media Authority's decisions in cases related to the provisions concerning important events, cf. Section 2-14 of the Broadcasting Act. Appeals on the Norwegian Media Authority's decisions pursuant to the provisions concerning important events will be handled by the Media Appeals Board. The King in Council may reverse the decisions of the Norwegian Media Authority or the Media Appeals Board only in matters of principle or significant social interest , cf. Section 2-14, second paragraph of the Broadcasting Act.

11. Sanctions Pursuant to the current legislation, the Norwegian Media Authority may sanction violations of the provisions proposed in the draft amendments Sections 5-3, 5-4, 5-5 and 5-6 by a warning, cf. Section 10-2 of the Broadcasting Act, by standardised financial penalties for violations pursuant to Section 10-3 of the Broadcasting Act, cf. Section 10-3 of the Broadcasting Regulation, or by a coercive fine, cf. Section 10-4 of the Broadcasting Act. In the consultation process, the Ministry stated that the imposition of standardised financial penalties are not appropriate for violations of the provisions concerning important events. According to the notified measures, violations of these provisions will be sanctioned by discretionary financial penalties, in accordance with an amendment of Section 10-2 of the Broadcasting Regulation.

22 12. Effective date In the consultation process, the Ministry proposed that the list should take effect for agreements entered into after 30 July 1997, in accordance with the wording of Section 2- 8, third paragraph of the Broadcasting Act. Some of the consulted bodies maintained that the proposal entails a violation of the Constitution’s ban on making legislation effective as of a date prior to enactment. Section 2-8 of the Broadcasting Act was implemented in the Broadcasting Act in 2000, but the legal authority has not been employed thus far. The Ministry finds, on the basis of fairness, that the notified measures should not be made effective for agreements made before the entry into force of the notified measures.

The notified measures will enter into force 1. July 2014. The proposed regulations will therefore not affect ongoing contract negotiations related to the acquisitions of the events on the list.

13. The impact of the proposed measures In its statement to the consultation, the Norwegian Competition Authority opined that the list would strengthen the position of the qualified broadcasters to the detriment of pay television services. The Norwegian Competition Authority also stated that the introduction of such a list could weaken the incentives for further innovation, such as technological solutions on new platforms. The purpose of the list is to ensure that Norwegian television viewers have access to events that are of major social significance. The purpose of the measures is not to give certain television companies a competitive advantage. The proposed measures do not prevent the acquisition of broadcasting rights by non-qualified broadcasters. Nor do the measures discriminate in any other way between public service broadcasters and commercial broadcasters as far as the acquisition of broadcasting rights is concerned. It can therefore be concluded that the proposed measures minimise the distortion of competition in accordance with the premises of the Television without Frontiers Directive. The Ministry would also like to point out that the purpose of the regulation is neither to reduce nor to increase the price of rights. The proposal entails that the market price for the rights should form the basis for determining the price. Moreover, the regulation does not prevent non-qualified television companies from submitting bids on exclusive rights when they are offered for sale. However, it cannot be ruled out that the regulation may have a certain impact on the prices in the market, since the regulations potentially may limit the number of television companies that are liable to bid for the rights. It must however be noted that a relatively large number of television channels will be qualified to bid for rights to the events. All channels that are included in the basic tier channel packages of the two satellite operators and the DTT operator will be qualified, according to the notified measures. This will limit the potential impact on the market prices for the listed events.

23 Annex I: Criteria fulfilled by the list

Event A) B) C) D) Large Cultural National Special audience importance team resonance on free-TV The Summer and Winter V V V Olympics The Men's World Football V V V Championships, including qualifying games with Norwegian participation The Men's European V V V Football Championships, including qualifying games with Norwegian participation The Women's World V V V Handball Championships The Women's European V V V Handball Championships The Men's Football Cup V V Final The Nordic World Ski V V V V Championships The Alpine World Ski V V V V Championships The Holmenkollen FIS V V V V World Cup Nordic The Biathlon World V V V V Championships

24 Annex II: Timeline of the consultation process

On 24 June 2011, the Ministry of Culture published a consultation paper including a draft list of events of major importance to society in Norway on the website of the Ministry of Culture in both Norwegian17 and English18. The consultation was open to all interested parties. On the same date, the Ministry sent an official letter to a number of relevant parties, requesting comments to the proposed list and measures. The consultation period was set to three months, and ended on 24 September 2011.

The parties/stakeholders that responded and the dates the letters were received 19 are listed in chart 1 below. A list of all consulted parties/stakeholders20 are listed in chart 2 below.

17 http://wwwTegieringen.no/nb/dep/kud/doyhoeringer/hoeringsdoy2011/horing--listeforing-av-begivenheter- av-v/horingsbrev.html?id=649937

18 http://www.regjeringen.no/en/dep/kud/documents/hoeringer/hoeringsdok/2011/consultation-on-a-proposal-for- amendment/consultation-on-a-proposal-for-amendment.html?id=649937

19 A list of the participating stakeholders and letters received can be found on this web-page: http://www.regjeringen.no/nb/dep/kud/dok/hoeringer/hoeringsdok/2011/horing--listeforing-av-begivenheter-av- v/horingsuttalelser.html?id=649934

20 A list of the consulted stakeholders can be found on this web-page: http://www.regjeringen.no/nb/dep/kud/dok/hoeringer/hoeringsdok/2011/horing--listeforing-av-begivenheter-av- v/horingsinstanser.html?id=649936

25 Chart 1: Parties that responded to the consultation and dates of letters received Stakeholder: Date Altibox 22.sep.ll Association of Norwegian Editors 12.sep.ll C More Entertainment 23.sep.ll Familie og Medier 20.sep.ll FIFA - Fédération Internationale de Football Association 26.sep.ll Get 26.sep.ll Ministry of Children, Equality and Social Inclusion 19.sep.ll Ministry of Finance 12.sep.ll Ministry of Government Administration, Reform and Church Affairs 23.sep.ll Ministry of Justice and the Police 14.sep.ll Modern Times Group 27.sep.ll Norwegian Biathlon Association 22.sep.ll Norwegian Media Businesses' Association 23.sep.ll Telenor Broadcast 23.sep.ll The Football Association of Norway 23.sep.ll The Norwegian Athletics Federation Undated The Norwegian Broadcasting Corporation, NRK 24.sep.ll The Norwegian Competition Authority 26.aug.ll The Norwegian Consumer Council 23.sep.ll The Norwegian Handball Federation 22.sep.ll The Norwegian Media Autority 26.sep.ll The Norwegian Olympic and Paralympic Committee and Confederation of Sports comity 23.sep.ll The Norwegian Skating Association 19.sep.ll The Norwegian Ski Federation 23.sep.ll The Norwegian Union of Journalists 20.sep.ll TV 2 20.sep.ll TVNorge 23.sep.ll University of Bergen, Department of Information Science and Media Studies 22.sep.ll University of Oslo, Department of Economics Undated UEFA - The Union of European Football Associations 27.sep.ll

26 Chart 2: The consultation paper was sent to the following stakeholders:

Altibox A-pressen (Amedia) Arts Council Norway Association for Creative, Commercial Communication Association of Norwegian Editors Edda Media AS European Handball Federation Familie og Medier FIFA - Fédération Internationale de Football Association FIS - Fédération Internationale de Ski GET IBU - International Biathlon Union International Handball Federation IOC - The International Olympic Committee Kabel Norge (trade union for the commercial cable-TV operators in Norway) Kringkastingsringen Ministry of Children, Equality and Social Inclusion Ministry of Finance Ministry of Government Administration, Reform and Church Affairs Ministry of Justice and the Police Modern Times Group Norges televisjon(the Norwegian DTT-operator) Norkring NORWACO Norwegian Media Businesses' Association Norwegian Media Businesses' Association Post- og teletilsynet RiksTV AS Schibsted ASA Sør-Trøndelag University College Telenor The Consumer Ombudsman The Football Association of Norway The Marketing Association The Ministry of Education and Research The Ministry of Foreign Affairs The Ministry of Trade and Industry The Ministry of Transport and Communications The Norwegian Broadcasting Corporation, NRK The Norwegian Competition Authority The Norwegian Consumer Council The Norwegian Film and TV Producers' Association The Norwegian Handball Federation The Norwegian Institute of Journalism

27 The Norwegian Media Research Association The Norwegian Olympic and Paralympic Committee and Confederation of Sports comity The Norwegian Press Association The Norwegian Ski Federation The Norwegian Union of Journalists The Ombudsman for Children in Norway The Sami Parliament TV 2 AS TVNorge AS UEFA - The Union of European Football Associations University of Bergen, Department of Information Science and Media Studies University of Oslo, Department of Media and Communication Verdens Gang AS