Spain: Supreme Court Mandates Reorganization of Digital Terrestrial Television.

­­­ Javier García García*. Spain, may 2014.

Versión en español | Versão em Português

After successfully completing the transition from analog to digital television, the introduction of new channels has unexpectedly become more complicated.

The matter pending in Spain was the reallocation of some of the signals assigned to television by 2015 in order to free up the spectrum band allocated to the digital dividend (790-862Mhz), and thus meet the demands of the European Union in regard to the expansion of new services like 4G telephony. Though the government had discussed this issue with television operators, the Supreme Court vacated the decision that had been made regarding the distribution of digital TV channels in 2010. The ruling affects nine of the 24 nationwide private television signals, which must cease their broadcasts.

A History of the Allocation of Private Television Channels.

The transition to Digital Terrestrial Television (DTT) in Spain started with the National Technical Plan of 1998, the government granted a digital signal to the existing national television operators (three private and two public) in order to allow them to broadcast simultaneously. In addition, two new signals were opened in an effort to let new operators in (these signals were allocated to Veo TV and Net TV in 2000 through a competitive tender process). The Supreme Court ruled on this decision in accordance with the law, as it had to do with simulcast emission (simultaneous broadcast in analog and digital signal).

However, digital television was not successful. After the 2004 elections, the new administration launched an ambitious reform of the audiovisual sectorwhich included both technical measures and legislative changes.

A fourth analog television signal (La Sexta –The Sixth–) was allocated by tender in 2005, the cessation of analog broadcasting was scheduled for 2010, plans were made  to bring the new technology to all homes, and the new local and nationwide Television Technical Plans were approved. These changes generated tension between the government and the larger communication groups, which tried to block the entry of new competitors (like La Sexta) and wanted to benefit from the expansion of signals that comes with digitalization of the television system. Furthermore, the cessation of analog broadcasting caused a surplus of radio spectrum (digital dividend) that allowed for the implementation of new 4G phone services (4G, mobile TV). This meant that the government had to make a decision regarding how much of the spectrum it would assign to television and how much it would allocate to telephone operators.

In contrast to other European countries, the Spanish government decided to allocate most of the available spectrum to television. In the National Technical Plan from 2005 (RD 944/2005), the government resolved the following:

  • Transition process from analog to digital technology: allocation of up to two additional signals to the existing operators. This was to be granted on the condition that they be involved  in fostering the transition (new contents, HD broadcasting, funding of the Impulsa TDT consortium, etc.) This also included the granting of at least two signals to new operators (granted to La Sexta).
  • After the cessation of analog broadcasting: to grant an entire multiplex channel that could handle at least four signals per owner to the operators who followed through on their commitments.

The issue reached the Supreme Court following an appeal presented by the company Infraestructura y Gestión 2002 SL, which argued that the additional signals were granted directly without the completion of the necessary tendering process. There was disagreement among the justices regarding the legality of modifying the concession (the allocation of additional signals). Finally, by a majority, the Supreme Court dismissed the appeal (STS 3825/2009). It ruled that the modification of any concession was justified on public interest grounds and due to the transitional nature of the structure that was needed in order to foster the transition to the new technology. The sentence also stated that two of the signals granted were to be awarded by competitive tender and that as such, the entry of new operators had not been prevented. However, the Court did not comment on the disposition that established the scenario that would take place after the cessation of analog broadcasting (the granting of an entire multiplex channel to each owner).

The government followed its plan. In April 2010, it published the long awaited General Law on Audiovisual Communication. It then went forward with the cessation of analog broadcasting, and multiplex channels were granted to the existing operators (RD 365/2010). Infraestructura y Gestión 2002 SL addressed the Supreme Court a second time, arguing that additional signals had been granted without any call for tender and seeking an annulment for 17 of the 24 signals. In late 2012, when the disputed distribution of multiplex channels had been completed and after a change in government, the Court allowed the appeal in part, closing nine of the 24 signals for having been allocated without any tendering process (STC 8036/2012). Following the sentence, the government ordered that the execution of the order be postponed, but the Court declared this measure null, urging enforcement of the judgment (Auto 18/12/2013).

The Consequences of the Sentence.

Since then, the government and operators have discussed possible solutions. One area of the government was willing to negotiate (and proposed drafting a law) in order to prevent damaging its relationship with the media. Another sector regarded the execution of the sentence as an opportunity to reorganize the radio spectrum and solve the digital dividend problem given that reducing signals does not involve a complicated and expensive relocation process.

Fifteen months after the sentence was issued, the Ministry of Industry has finally urged the closure of nine signals by May 6. (Three are from Atresmedia, two are from Mediaser, two are from Veo TV, and two are from Net TV). Operators can decide which signals to keep and which to give up. They are also entitled to compensation for economic losses (some of the channels are rented by other operators). The government will call for tender at some point in the future before granting these nine signals.

However, in view of the push that has come from telephone companies, the government will likely decide to modify the current distribution of the spectrum (470-790Mhz TV, 790-862Mhz phone services) and hold bidding processes to award only some of the available signals, assigning the rest to the expansion of the band destined to phone services.

*Member of Right to Communication Working Group at the Community Media Network


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