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Television and Media Concentration •• IRIS Special Edited by the European Audiovisual Observatory TelevisionTelevision andand MediaMedia ConcentrationConcentration Regulatory Models on the National and the European Level TELEVISION AND MEDIA CONCENTRATION IRIS Special: Television and Media Concentration Regulatory Models on the National and the European Level European Audiovisual Observatory, Strasbourg 2001 ISBN 92-871-4595-4 Director of the Publication: Wolfgang Closs, Executive Director of the European Audiovisual Observatory E-mail: [email protected] Editor and Coordinator: Dr. Susanne Nikoltchev (LL.M. EUI and U of M) Legal Expert of the European Audiovisual Observatory E-mail: [email protected] Partner Organisations that contributed to IRIS Special: Television and Media Concentration IViR – Institute of European Media Law EMR – Institute of European Media Law Rokin 84, NL-1012 KX Amsterdam Nell-Breuning-Allee 6, D-66115 Saarbrücken Tel.: +31 (0) 20 525 34 06 Tel.: +49 (0) 681 99275 11 Fax: +31 (0) 20 525 30 33 Fax: +49 (0) 681 99275 12 E-Mail: [email protected] E-Mail: [email protected] CMC – Communications Media Center MMLPC – Moscow Media Law and Policy Center New York Law School Mokhovaya 9, 103914 Moscow 57 Worth Street, New York, NY 10013 Russian Federation USA Tel./Fax: +7 (0) 503 737 3371 Tel.: +1 212 431 2160 E-Mail: [email protected] Fax: +1 212 966 2053 [email protected] E-Mail: [email protected] Proofreaders: Florence Pastori, Géraldine Pilard-Murray, Candelaria van Strien-Reney Translators: Brigitte Auel, France Courrèges, Christopher Edwards, Isabelle Heesch, Katherine Parsons, Stefan Pooth, Patricia Priss, Erwin Rohwer, Véronique Schaffold, Robert Spence, Stella Traductions, Nathalie-Anne Sturlèse Editorial Assistant: Michelle Ganter Marketing: Markus Booms E-mail: [email protected] Typesetting: Pointillés, Hoenheim (France) Print: Finkmatt Impression, La Wantzenau (France) Publisher: European Audiovisual Observatory 76 Allée de la Robertsau, F-67000 Strasbourg Tel.: +33 (0)3 88 14 44 00 - Fax: +33 (0)3 88 14 44 19 E-Mail: [email protected] - html://www.obs.coe.int © European Audiovisual Observatory, 2001. Opinions expressed in articles are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. Television and Media Concentration Regulatory Models on the National and the European Level Published by the European Audivisual Observatory This IRIS Special offers what is probably the first ever introduction to the legal problems involved in the concentration of the ownership of television companies and to the legal aspects of the economic involvement of television in other media markets as well as markets up- and downstream of television. The IRIS Special series allows in-depth studies on legal topics of relevance to the audiovisual sector. The topics are selected and processed in collaboration with our network, and in particular with our partner organisations. Opinions expressed in articles are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. IRIS Specials are produced in the Observatory’s three working languages. In order to achieve maximum comprehensibility and precision in all three language versions, we are dependent on the work of our proofreaders and translators; their support is much appreciated. This Special, like all other publications of the European Audiovisual Observatory in the legal field, would not have materialised without the valuable assistance and perseverance of our colleague Michelle Ganter. Wolfgang Closs Susanne Nikoltchev Executive Director Legal Expert TELEVISION AND MEDIA CONCENTRATION INDEX GERMANY A. Horizontal Media Concentration . 7 1. Definition of the Broadcasting Market 2. Content of Applicable Legislation 2.1. Thresholds 2.2. Means of Measuring Concentration 2.3. Safe Havens 3. Legal Remedies 3.1. Determination of Dominant Opinion-Forming Power 3.2. 10% Audience Share 4. Justifications and Policy B. Vertical Media Concentration . 11 1. Content of Applicable Legislation 1.1. § 26 Sub-Para 2 RStV 1.2. Separate Overall Assessment beyond Legal Presumption – § 26 sub-para 1 RStV 1.3. § 53 Sub-Para 3 RStV 2. Legal Remedies 3. Justifications and Policy C. Diagonal Media Concentration . 12 1. Content of Applicable Legal Rules 1.1. § 26 Sub-Para 2 Line 2 RStV 1.2. Limitations Arising out of State Broadcasting Laws 2. Justifications and Policy D. General Law on Competition . 13 1. Interaction between Special Legislation and the Law on Competition 1.1. The Relationship between the Rules 1.2. Distinction between Internal and External Growth 1.3. Particularities in Local State Law 1.4. § 7 Television Signal Transmission Law and Its Relation to § 53 RStV 2. Definition of the Relevant Television Market 2.1. The Factually Relevant Market 2.2. Spatially Relevant Market 2.3. Temporally Relevant Market 3. When Is a Dominant Market Position Acquired or Increased? 3.1. Legal Definitions – § 19 Sub-Para 2 GWB: 3.2. Presumptions of Market Domination 4. Intervention Level under § 38 Sub-Para 3 GWB 5. Legal Instruments against Concentration 5.1. Prohibition under § 19 GWB 5.2. Prohibition under § 36 Sub-Para 1 GWB 5.3. Prohibition on Discrimination § 20 GWB 5.4. Supervision of Abuse § 16 GWB E. Specific Ownership Restrictions . 16 1. Foreign Applicants 2. Relationship to Government Departments 3. Political Parties TELEVISION AND MEDIA CONCENTRATION THE UNITED KINGDOM A. Horizontal Media Concentration . 19 1. Definition of the Broadcasting Market 2. Content of Applicable Regulation 2.1. Definitions relating to Control and Influence 2.2. Audience Share Thresholds 2.3. Attributing and Calculating Audience Time 2.4. Additional Absolute Limitations 3. Legal Remedies 4. Justifications and Policy B. Vertical Media Concentration . 21 1. Content of Applicable Legislation 1.1. Structural Features 1.2. Independent Productions and European Quotas 1.3. Conditional Access 1.4. Electronic Programme Guides 2. Legal Remedies 3. Justifications and Policy C. Diagonal Media Concentration . 23 1. Content of Applicable Legislation 1.1. Definitions 1.2. Market Share Thresholds 1.3. The Public Interest Test 1.4. Telecommunications 2. Legal Remedies 3. Justifications and Policy D. General Competition Law. 25 1. Interplay between Media Specific Rules and Competition Law 2. Justifications and Policy E. Specific Ownership Restrictions . 25 1. Non-EEC Nationals and Bodies Having Political Connections (Paragraph 1) 2. Disqualification of Religious Bodies (Paragraph 2) 3. General Disqualification on Grounds of Undue Influence (Paragraph 4) 4. General Disqualification of Broadcasting Bodies (Paragraphs 5 and 5A) 5. General Disqualification of Advertising Agencies (Paragraph 6) SPAIN A. Horizontal Media Concentration . 29 1. Terrestrial TV 1.1. Analog Terrestrial TV 1.2. Digital Terrestrial TV 2. Cable TV 3. Digital Satellite TV B. Vertical Media Concentration . 36 1. Requirements relating to the Receiver/Equipment Market 2. Requirements relating to the Audiovisual Content Market 2.1. Obligations of Cable TV Operators 2.2. Obligations of Independent Content-Providers C. Diagonal Media Concentration . 38 D. General Competition Law. 38 1. 1989 Legislation 2. Merger Decisions under the 1989 Legislation 2.1. Unión Radio (1994) 2.2 Cablevisión (1996) 3. 1999 Legislation 4. Merger Decisions under the 1999 Legislation E. Specific Ownership Restrictions . 40 1. Non-EU Ownership 2. Ownership by Political Bodies TELEVISION AND MEDIA CONCENTRATION ITALY A. Horizontal Media Concentration . 47 1. Definition of the Broadcasting Market 2. Content of Applicable Regulation 3. Legal Remedies 4. Justifications and Policy B. Vertical Media Concentration . 49 C. Diagonal Media Concentration . 49 1. Content of Applicable Legislation 1.1. Cross-Ownership between Broadcasters and Press 1.2. Cross-Ownership between Broadcasting and Radio Operators 1.3. Rules concerning Advertising Agencies 2. Legal Remedies 3. Justifications and Policy D. General Competition Law. 51 1. Interplay between Media Specific Rules and Competition Law 2. The Definition of the Relevant Television Broadcasting Market 3. When Is a Dominant Market Position Established or Enhanced? 4. Legal Remedies E. Specific Ownership Restrictions . 53 FRANCE A. Horizontal Media Concentration . 55 1. Definition of the Broadcasting Market 2. Content of Applicable Regulations 2.1. Share in Capital 2.2. Number of Licenses 2.3. Holdings in Several Companies in the Same Sector 3. Legal Remedies 4. Justifications and Policy B. Vertical Media Concentration . 57 1. Legislation Applicable to Digital Television 2. The Opinion of the Conseil supérieur de l’audiovisuel of 23 November 1989: Multiplex Operators Must Have a Specific Legal Framework C. Diagonal Media Concentration . 58 1. National Framework 2. Regional Framework D. General Competition Law. 59 1. Competent French Authorities 2. Legal Scheme 2.1. Anti-Competition Practices 2.2. Restrictive Practices E. Special Ownership Restrictions . 61 TELEVISION AND MEDIA CONCENTRATION EUROPEAN UNION Introduction A. EU Involvement in National Television Ownership and Control Policies . 63 1. National versus European Ownership and Control Thresholds 2. Past Activities regarding a Member State’s Media Specific Anti-Concentration Policies 3. Current Activities regarding a Member State’s Media-Specific Anti-Concentration Policies 4. EU Involvement in National Frequency Distribution Policies for Television 5. EU Involvement in National Cable Distribution Policies 6.
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