Communications Regulatory Authority

egulations but also during such interruptions in sports games as can be added to the
prescribed duration of the playing time, provided that the insertion of an advertisement
does not interrupts a sports action. In the administrative judge’s opinion, this provision,
which is based on a “non-technical” interpretation of the world “half-times” included in
article 11 of Directive no. 89/552/EEC, i.e. a more extensive interpretation compared to
the mere indication of an intermission dividing halves of a game, operates “from a
perspective aimed at maintaining the integrity and value of a programme by setting out
an objective and unequivocal principle, and one that is not left to a broadcaster’s
discretion or arbitrary evaluation”. Still according to the Lazio TAR’s judgement,
rather than deviating from EEC rules and regulations, this regulation explains and
clarifies their content with more stringent and restrictive enforcement boundaries (Lazio
TAR, section II no. 14965/05, quoted above).
With special reference to the recent amendment to the quoted regulations, as
provided for by Resolution no 105/05/CSP, which set for football games a maximum
number of 6 minispots within the regular playing time, the Lazio TAR considered such
regulatory action to be “implementing and consequential to the rule of principle
included in the EEC directive” (see Directive no. 89/552/EEC, and subsequent
amendments, quoted above) “and making its implementation and specification a clear
and effective one with regard to the section where minispots are considered as
exceptional advertisements, a section which would otherwise be bound to remain
undetermined”.
The judge also added that “the 6-minispot limit” set by AGCOM “is entirely
reasonable as it is clear that a higher number, to be broken down into two 45-minute
halves, would not allow to consider minispots as isolated ads.” (Lazio TAR, section II,
no. 14357/05, quoted above).
Still with regard to the audiovisual sector, in confirming Lazio TAR’s judgement
no. 184/2005, the Council of State stated that AGCOM has the power to issue directives
on service charters under article 1, paragraph 6, letter b, no. 2 of law no. 249/97 also
with respect to private undertakings which work in the telecommunications field
(Council of State, Order no. 3147/05). As, in mentioning operators, this provision does
not specify that it should be public service operators, or that it should be a public service
charter, it shall apply to all telecommunications and radio and television service
operators which provide either public or entrepreneurial services.
In the Council of State judges’ opinion, for the purpose of interpreting article 1,
paragraph 6, letter b, no. 2 of law no. 249/97 the word “operator” cannot have a strict
interpretation, one that is limited to the operator of a business necessarily having a
public-service nature, but it should be interpreted in a wider sense, such as to refer to
any undertaking operating in the telecommunications sector on the basis of a widening
measure issued by the Communications Regulatory Authority. In this connection the
Council of State added that such a pay-tv operator as Sky, which also provides
television news, carries out tasks which can qualify, at least partly, as public service, by
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