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Itália 249

PAGINE IN ITALIANO








July 31st 1997, n. 249.

The institution of the Autorità per le Garanzie nelle Comunicazioni and the regulations for telecommunications and radio and television broadcasting systems.

Published by the Official Gazette.
July 31, 1997 n. 177, S.O.

 


Art. 1. The Autorità per le Garanzie nelle Comunicazioni
(
Authority for equal protection of communications).

1. The Authority for equal protection of communications is hereby instituted, hereinafter called "the Authority", which will be fully autonomous and independent in its judgements and evaluations.

2. Without prejudice to the powers as set out in the legislative decree - of December 1st 1993, n. 487, enacted, with modification, as law of January 29th 1994, n. 71 the Ministry of Posts and Telecommunications is renamed "the Ministry of Communications".

3. The Authority comprises the following organs: the president, the commission for infrastructures and networks, the commission for services and products and the council. Each commission is a collective body made up of the president and four commissioners. The council comprises the president and all the commissioners. The Senate of the Republic and the Chamber of Deputies elect four commissioners each of whom will be subsequently appointed by a decree of the President of the Republic. Each senator and each deputy will express his vote by nominating one commissioner for the commission of infrastructures and networks and one for the commission for services and products. In case of the death, resignation or incapacity of a commissioner, the competent Chamber will elect another commissioner who shall remain in office until the lapse of the ordinary terms of office of the members of the Authority. The prohibition on confirmation set out in article 2, clause 8, of law 14 November 1995 n. 481 is waived when a substitute commissioner will serve for less than three years. The president of the Authority is appointed by a decree of the President of the Republic on the proposal of the President of the Council of Ministers in agreement with the Ministry of Communications. The nomination of the president of the Authority shall be submitted to the competent parliamentary commissions for approval pursuant to article 2 of law November 14th 1995 n. 481.

4. The parliamentary commission for general policy and superintendence of radio and television services shall ascertain that the provisions contained in the articles 1 and 4 of the law April 14th 1975 n. 103 and law June 25th 1993 n.206, and article 1 of legislative decree -October 23rd 1996 n. 545 enacted with modifications, as law December 23rd 1996 n. 650 are observed.

5. The provisions as set out in article 2, clauses 8, 9, 10 and 11 of law November 14th n.481 shall apply to the members of the Authority.

6. The responsibilities of the Authority are as follows:

a) the commission for the infrastructures and the networks will carry out the following functions:

1) express its views to the Ministry of Communications on the national plan for the allocation of frequencies which shall be approved by a specific decree of the Ministry of Communications after consultation with the bodies indicated in clause 3 of article 3 of law August 6th 1990, n. 223, indicating the frequencies to be assigned for civil protection services, in particular the voluntary organisations and the national Alpine rescue corps;

2) draws up, with the assistance of the organs of the Ministry of Communications and after consultation with the public concessionaire and the national associations of the owners of broadcasting stations or networks with respect to the allocation of frequencies, the plans for the allocation of frequencies, including those to be assigned to civil protection services pursuant to article 11 of law February 24th 1992, n. 225, and in particular voluntary organisations and the National Alpine Rescue Corps, and shall approve them, but excluding the frequency bands used exclusively by the Ministry of Defence which will make provision for all such relative assignments. As regards the bands shared with the Ministry of Defence, the Authority will make provision for their prior co-ordination with the ministry in question.

3) defines, without prejudice to the provisions set out in article 15 of law December 31st 1996, n. 675, the measures for ensuring the security of the frequencies and initiates actions by the organs of the Ministry of Communications for the elimination of electromagnetic interference, including modifications to plant on condition that such actions do not upset the balance reached in the system of the frequencies as represented by the allocation plans;

4) having heard the views of the Ministry of Communications and in conformity with Community regulations, sets down standards for decodifiers in order to promote the utilisation of the service;

5) maintains a register of communications operators on which the following shall be registered: the subjects, pursuant to the present law, who receive concessions or authorisations in accordance with the current regulations issued by the Authority or by other competent administrations; concessionaire companies for advertising to be broadcast over radio or television equipment or to be publicised on daily newspapers or magazines, the publishers of daily newspapers, magazines or journals and national press agencies and telematic and telecommunications service providers including electronic and digital publishers; in the register shall also be recorded the infrastructures for broadcasting in the national territory. The Authority will adopt specific regulations for the organisation, registration and definition of the criteria to identify subjects required to be registered other than those already registered at the date on which the present law comes into force;

6) from the date on which the regulations as set out in point 5) come into force, all the provisions regarding the maintenance and organisation of the national press register and the national register of radio and television companies as set out in law August 5th 1981 n. 416, and successive modifications, and in law August 6th 1990, n. 223, as well as the regulations as set out in the decree of the President of the Republic April 27th 1982 n. 268, the decree of the President of the Republic February 15th 1983 n. 49 and the decree of the President of the Republic March 27th 1992 n. 255, are repealed. The acts on the registers as set out in the present point and kept in the office of the Commissioner for radio and television broadcasting are transferred to the Authority for the purposes set out in point 5);

7) defines objectives and criteria of openness, also with reference to maximum tariffs, for interconnection and for access to telecommunications infrastructure on the basis of non-discriminatory criteria;

8) regulate the relations between operators and users of telecommunications infrastructures and verifies that telecommunications infrastructure operators will guarantee interconnection and infrastructure access to subjects managing networks or offering telecommunications services; promote technological agreements between operators in the sector in order to avoid the proliferation of technical transmission plant throughout the territory;

9) having heard the parties involved, settles controversies on matters of interconnection and access to telecommunications structures within ninety days from the notification of the controversy;

10) periodically receives communications from the telecommunications public service operators regarding cases of interruption of service to users, and draws up guidelines, if necessary for question of interruptions. The users affected by these services can submit a claim to the Authority regarding the interruption of the service for those cases envisaged by a special regulation to be defined by this Authority;

11) identify, in accordance with Community regulations, statute laws and regulations and in particular with the provisions of article 5, clause 5, the objective and subjective ambit of any obligations that may interest the universal service and the arrangements for the determination and allocation of the relative costs and to propose possible modifications to them;

12) promotes interconnections between national telecommunications systems and those of other countries;

13) determine, after having heard the subjects involved who may advance requests for them, the criteria for the definition of national network plans and telecommunication services, based upon criteria of objectivity, openness, impartiality, equity and celerity;

14) intervenes in controversies between the body managing the telecommunications services and private users;

15) superintends radio-frequency ceilings compatible with human health and verifies that such ceilings, and taking account of the combined effect of different electromagnetic emissions as well, are not exceeded. The respect of these indicators is a compulsory condition for the issue of licences or concessions for the installation of equipment with electromagnetic emissions. The Ministry of the Environment, in agreement with the Ministry of Health and the Ministry of Communications, and having heard the views of the Superior Institute of Public Heath and the National Agency for the protection of the environment (ANPA), shall determine within sixty days, the ceilings to which the present point refers, taking due account of Community regulations;

  b) the commission for services and products:

1) ascertains that services and products supplied by each operator to whom concessions or authorisations are issued in conformity to the regulations in force are in line with all legal requirements by promoting the integration of technology and the offer of telecommunications services;

2) issues directives on the general levels of quality of the services and on the adoption, by each operator, of a service charter in which the minimum standards for each area of activity are set out;

3) supervises arrangements for the distribution of services and products, including the relative advertising in whatever manner it may be publicised, without prejudice to the responsibilities assigned by law to other authorities, and may issue regulations, in conformity to European regulations, for the governance of relations between fixed and mobile service operators carrying out the resale of telecommunications activities;

4) ensures the respect of the minimum periods that must elapse before the use of audio-visual works by the various services from the publication date of each work, in conformity to present regulations and taking account of alternative agreements, if any, which may be reached between producers;

5) as concerns all forms of advertising and teleselling, issues regulations for the implementation of statutory provisions and regulates the organised interaction between suppliers of a product or service or a network operator and the end-user, involving the acquisition of material from the end user and/ or the use of information on end users.

6) ascertains that the regulations for the safeguarding of minors in the radio-television broadcasting sector are observed, taking account of self-regulation codes that may be in place concerning the relations between minors and television, as also the guidelines provided by the parliamentary commission for general policy and superintendence on radio and television services;

7) superintends that the safeguards for linguistic minorities as recognised in the ambit of mass communications are observed;

8) ascertains that regulations on the right of rectification in the radio-television sector are respected;

9) guarantees the application of the present provisions governing propaganda, advertising and political information as well as the observance of the regulations in the field of the equal treatment and parity in the access to publications and to the transmission of information and electoral propaganda and issues the relatives regulations for their implementation;

10) proposes arrangements to the Ministry of Communications to be introduced for the agreement on the concession of the public radio-television service and verifies the implementation of the obligations envisaged in the foregoing agreement and in all the other agreements that may be stipulated between the concessionaire and the public and administrative service. The parliamentary commission for general policy and the superintendence of radio-television services is obliged to express its opinion on the arrangements for the agreement and on the service contract with the public service concessionaire; in addition, it will supervise the implementation of the foregoing public service;

11) arranges for the survey on audience ratings and the diffusion of the various means of communication; verifies that surveys on ratings and the diffusion of the various means of communication conducted by other subjects are conducted correctly by carrying out checks on congruity of the methodologies employed and audits on the veracity of the published data, as well as upon the monitoring of television transmissions and on the conduct of the companies which undertake the enquiries; the manipulation of data by the use of methodologies known to be incorrect or through the deliberate use of false data is punished in conformity to article 476, first clause, of the penal code; where the survey on audience ratings does not meet universal sampling criteria with respect to the population or the means involved, the Authority can arrange that the necessary surveys be carried out;

12) ascertains that publication and diffusion of the findings on means of mass communication be conducted by respecting the criteria contained in the regulations that it itself will issue;

13) monitors radio-television transmissions;

14) applies the sanctions provided for by article 31 of law August 6th 1990, n. 223;

15) promotes the integration of technologies and the offer of communication services;

c) the council:

1) advises the government on the appropriateness of measures, including legislation, on matters of technological innovation and developments both nationally and internationally within the sector of communications;

2) guarantees the application of the legislative provisions on access to communication means and infrastructure, and also through the drawing up of specific regulations;

3) promotes research and studies on matters of technological innovation and development in the communications and multimedia services sector, and in so doing may avail itself of the assistance of the Superior Institute of Posts and Telecommunications, which hereby is renamed "Superior Institute of Communications and Information Technology" pursuant to article 12, clause 1, letter b, of the legislative decree -December 1st 1993, n. 487, enacted into law with modifications, by law January 29th 1994, n. 71;

4) adopts the regulations as set out in clause 9 and the measures indicated under clauses 11 and 12;

5) adopts the provisions implementing the regulations as set out in article 1, clause 2 of legislative-law October 23rd 1996, n. 545, enacted with modifications as law December 23rd 1996, n. 650, on the criteria and arrangements for the issue of licences and authorisations and for the fixing of the relative contributions as well as the regulations on the criteria and arrangements for the issue of concessions and authorisations in the field of radio and television activities and for the fixing of the relative licence fees and contributions;

6) proposes the regulations to govern the issue of concessions and authorisations in the field of radio and television broadcasting to the Ministry of Communications on the basis of regulations approved by the council itself;

7) verifies the financial statements and the data regarding the activities and assets of authorised subjects or concessionaires of radio and television services in conformity to regulatory arrangements;

8) ascertains the actual nature of dominant positions in the radio and television sector and forbidden by virtue of the present law and adopts the consequent measures;

9) carries out the functions and tasks assigned to the Commissioner for television and radio broadcasting and publishing, excluding the functions previously given the Commissioner pursuant to clause 1 of article 20 of law October 10th 1990 n. 287, which is repealed;

10) ascertains the non-observance by concessionaire companies of the radio and television services, of the guidelines laid down by the parliamentary commission for general policy and superintendence of radio and television services in conformity to articles 1 and 4 of law April 14th 1975 n. 103, and requires that the concessionaire takes the disciplinary action provided for in the contract of employment against the responsible managers;

11) expresses, within thirty days from the receipt of the relative documentation, its opinion as required by law, on the measures taken with regard to operators in the communications sector by the Authority instituted to guarantee competitiveness and fair market conditions following the application of articles 2, 3, 4, and 6 of law October 10th 1990, n. 287; said period having elapsed the measures will be implemented in the absence of the foregoing opinion;

12) within June 30th of every year it shall furnish the President of the Council of Ministers for submission to Parliament with a report on the activities undertaken by the Authority and on its programmes of work. The report shall contain, among other matters, data and reports concerning the sectors for which it is responsible, and in particular on technological development, resources, revenue, capital, potential and actual diffusion, ratings and audience data, the plurality of opinions in the information system, cross holdings in radio, television, the national press, periodical magazines and newspapers and other national and community-wide means of communication;

13) authorises the transfer of property of the companies which carry out the radio and television activities provided by law;

14) exercises all those other functions and powers provided by law November 14th 1995, n. 481, as well as all those other functions of the Authority not expressly attributed to the commission for the infrastructures and networks and the commission for services and products.

7. The tasks indicated under clause 6 may be devolved on the basis of an organisational regulation as set out in clause 9.

8. Separate accounting and administrative procedures which the companies operating in the sector of the concessions or authorisations must introduce shall clearly indicate the payments made for access and interconnection to telecommunications infrastructures, the costs incurred for the universal service and those for the installation and management of the infrastructures distinct from those referring to service supply and must enable the ascertainment of the non-existence of overlapping subsidies or discriminatory practices. The separation of the accounts must be implemented in the terms provided by the regulations set out under article 1, clause 2 of legislative- decree October 23rd 1996 n. 545, enacted, with modifications as law December 23rd 1996, n. 650. Companies operating in the sector of telecommunications shall publish, within two months from the approval of the financial statements, a document summarising the data contained in the financial statements, highlighting the elements referred to in the present clause.

9. The Authority, within ninety days from installation in office, shall adopt regulations for its organisation and functioning, for the drawing up of the financial statements, reports and the management of the expenditure, and in derogation from the provisions for the general accountancy methods of the state, as well as the for legal and economic employment conditions of personnel, on the basis of the regulations contained in law November 14th 1995 n. 481, and adhere to the arrangements for the carrying out of selection exams and recruitment procedure for the employment of personnel on the basis of fixed term contracts pursuant to clause 18. The Authority shall arrange for the autonomous management of the expenditure for its own functioning within the limits of the funds appropriated in the state budget and recorded in a specific item of the expenditure estimates of the Ministry of the treasury. The Authority implements the regulations on the operating and behavioural arrangements of the personal and the managers and the members of the Authority through the issue of a document called the Ethical Code of the Authority for equal protection in communications. All the deliberations and the regulations indicated in the present clause shall be adopted by a favourable majority vote of its members.

10. Any subject, bearer of private or public interests, or bearer of widespread interests organised in associations or committees, that could be damaged by the measures to by taken by the Authority, has the right to denounce violations of law by the Authority and to participate in the proceedings.

11. The Authority disciplines shall institute its own arrangements to regulate out of court settlements of controversies that may arise between users or categories of users and an authorised subject or the reception of licences or between authorised subjects or recipients of licences. For these controversies, identified by regulations introduced by the Authority, no recourse can be made to a court of law without there first having been made a compulsory attempt at settlement which shall be concluded within thirty days from the day on which the petition was put to the Authority. For this purpose, the terms for appealing to courts of law are suspended until the term for the conclusion of the arbitration proceedings elapses.

12. The measures taken by the Authority shall define the procedure for the minimum criteria adopted by the institutions of the European Union for the regulation of non-juridical procedures for the safeguard of the consumers and users. The criteria identified by the Authority in the definition of the foregoing procedures constitute the principles for the definition of the controversies which parties to the case agree to submit to arbitration.

13. The Authority avails itself of the organs of the Ministry of Communications and of the organs of the Ministry of the Interior as regards the safety and the regularity of the telecommunications services as well as of the organs and institutions of which the Commissioner for the protection of broadcasting and publishing can at present avail itself, on the basis of the present law. In view of the need for the decentralisation of its presence in the territory in order to ensure the necessary functions of government, fair-trading and supervision in the field of communication, regional committees for communications shall be functional organs of the Authority and which can be set up through regional laws within six months from the installation of the Authority and to which committees the present functions carried out by the regional radio and television committees will be attributed. The Authority in agreement with the permanent conference for the relations between state, regions and the autonomous provinces of Trento and Bolzano, shall draw up general guidelines on the requisites which the members of such committees must satisfy, criteria of incompatibility of the members and the organisational and financial arrangements of the committees. Within the foregoing period and in case of their non-institution, the functions of the regional committees for communications shall be performed by the present radio and television committees. The Authority in agreement with the permanent conference for the relations between the state, the regions and the autonomous provinces of Trento and Bolzano will adopt regulations in order to define the subject matter for which it is competent which can be delegated to the regional committees for communications. In the performance of its functions the Authority can ask for the consultancy of subjects or organisms of recognised independence and competence. Communications directed to the Authority are exempt from stamp duty. The Authority will co-ordinate with the competent organs of the Ministries of Defence and the Interior as regards matters of common interest.

14. The recruitment of permanent staff for regional committees for communications shall principally take place on the basis of the procedures for mobility provided for by article 4, clause 2 of the legislative decree May 12th 1995 n. 273 as regards the permanent staff of the Ministry of Posts and Telecommunications who, at the date on which the present law comes into force, will belong to the relative territorial inspectorate. A similar priority has been recognised with regard to personnel with executive functions of Ente poste Italiana (Italian postal authority) located within the territorial inspectorates themselves, and within the limits of the personnel allocated to the Ministry, as established by the legislative decree October 23rd 1996, n. 540, whose provisions were contained in law 23 December 1996, n. 650.

15. With the decree of the Ministry of the Interior in agreement with the Ministry of Communications and the Ministry of the Treasury, the structures, personnel and means of which the police telecommunications service can avail itself have been defined, within the limits of the resources in terms of personal allocated to the Ministry of the Interior and the appropriations included in the estimates of the latter ministry under the heading of public security. With the decree of the Ministry of Finance, in agreement with the Ministry of the Interior, the Ministry of Communications and the Ministry of the Treasury, the structures, personnel and the means of the Guardia di Finanza (excise police) are defined as regards its institutional duties in the specific sector of radio and television broadcasting and publishing.

16. The Authority will also collaborate with the Authorities and competent administrations of other states in order to facilitate their respective functions through the exchange of information and ideas.

17. A permanent staff list for the Authority is hereby instituted within the limit of two hundred and sixty persons. The final definition of the staff list will be made through a decree of the President of the Council of Ministers at the request of the Ministry of Communications and in agreement with the Ministries of the Treasury and the Public Administration and taking account of the Authority’ own favourable opinion formulated according to a survey of the task to be undertaken and also upon the basis for recourse to mobility procedures as provided for by the present law and in conformity to the ordinary budgetary appropriations made for the functioning of the Authority.

18. The Authority, in addition to permanent staff, may directly recruit personnel with fixed time contracts subject to the provision of private law for a number not in excess of sixty in accordance with the arrangements set out in article 2, clause 30, of law 14 November 1995 n. 481.

19. The Authority can, for justified reasons make use of employers of the state or other public bodies seconded, in the forms indicated by the respective regulatory systems, or on leave of absence pursuant to article 13 of the decree of the President of the Republic July 11th 1980 n. 382 and later modifications up to an overall number of 30 persons and of which no more than 20% with managerial qualifications, leaving a corresponding number of permanent places vacant. The staff to whom the present clause refers shall be paid the indemnity provided for by article 4 of the decree of the President of the Republic of July 10th 1991 n.231.

20. On the occasion of the first implementation of the present law the Authority may see to the recruitment of permanent staff to an extent of 50% of the posts indicated in the staffing list through a specific selection in proportion to the functions and responsibilities transferred to the Authority from the employed personnel of the Ministry of Communications and the Office of the Commissioner for radio and television broadcasting on condition that they are in possession of the responsibilities and professional and requisites for the performance of the single functions.

21. The Authority will be subject to the provisions set out in article 2 of law November 1995 n . 481 n. 481, which are not derogated from by the provisions of the present law. The provisions set out in clause 9, as exclusively concerns derogations from the provisions of the general public accounting, as well as clauses 16 and 19 of the present article are also applied to the other authorities set up by law November 14th 1995 n. 481, without charges to the account of the state.

22. With effect from the date on which the regulations on organisation as foreseen by clause 9 of the present article, clauses 1,2, 3, 4, 5, 12 and 13 of article56 of the law August 6th 1990 . 223 as also the second clause of article 8 of August 5th 1981 n. 416 come into force, the provisions under clauses 11 and 12 of the present article, clauses 7 and 8 of the article 6 of law August 6th 1990 . 223 are repealed. Similarly, every rule incompatible with the provisions of the present law are repealed. From the date of its installation the Authority will take over the administrative and juridical proceedings and become the new reference body for active and passive relations proceeding from the Commissioner for radio and television broadcasting and publishing.

23. Within ninety days from the coming into force of the present law, and at the proposal of the Ministry of Communications, one or more regulations are issued, in conformity to article 17, clause 2, of law August 23rd 1988, n. 400 in order to identify the responsibilities transferred, co-ordinate the functions of the Authority with those of the public administrations subject to the transfer of responsibilities, and reorganise or suppress offices of the said administration or revise the staff lists. As from the date on which the regulations come into force the legislative provisions and regulations governing the offices suppressed or re-organised and indicated in these regulations are repealed.

24. At the Ministry of Communications a permanent forum is set up for communications made up, not only of representatives of the ministry but also of experts with recognised expertise and by operators in the sector. The forum for communications has research and proactive functions in the field of multimedia and the new communications technology. The setting up of the forum will not entail additional financial charges for the state.

25. Until the coming into force of the Authority the Ministry of communications will perform the function given to the Authority under the present law, excepting those attributed to the Commissioner for the radio and television broadcasting and publishing, and also as regards the purposes as set out in article 1- bis of the legislative decree May 31st 1994 n. 332 enacted as law July 30the 1994 n. 474.

26. Recourses against the measures of the Authority are the exclusive jurisdiction of the administrative tribunal. The competence for judgements in the first instance is an exclusive and non-transferable competence of Lazio administrative court.

27.The Lazio regional administrative tribunal, before which a petition is laid for the suspension of the Authority’s measures, can pass immediate judgement on the merits of the case, with an abbreviated statement of the grounds for the decision. The same provisions apply to the supreme administrative tribunal in case of a request for the suspension of a sentence against which an appeal has been lodged. All the terms for the court proceedings are reduced by half and the operative part of the ruling will be published within seven days from the hearing by filing of the sentence. In the case of the concession of a provisional remedy, the hearing for the discussion of the merits of the case must take place within sixty days. In passing judgement the judge will also make a specific ruling on the costs of the provisional remedy. The parties involved have the right to appeal against sentences passed by the Lazio administrative tribunal immediately after the publication of the operative ruling, subject to the filing of a documented pleading, which must be deposited within thirty days from the notification of the sentence. Also in the case of immediate appeal article 33 of law December 6th 1971 n. 1034 is ap