Communications Regulatory Authority

virtue of the provisions under article 6, paragraph 1 of law no. 112/04 (the so-called
“Gasparri law”).
This regulation defines radio and television news as a service of public concern,
regardless of the news content and the technical methods by which it is provided, and
apart from the public or private nature of the party which provides this service (Council
of State, section VI, Order no. 3147/2005).
Lastly, the Lazio TAR upheld appeals lodged by RTI, Publitalia 80 and RAI
requesting the quashing of Resolutions nos. 150/05/CONS, 151/05/CONS, and
152/05/CONS, by which AGCOM had inflicted administrative fines equal to 2% of
advertising sales made in 2003 due to the breach of the warning not to perform
behaviours contrary to article 2 of law no. 249/97 which prohibits dominant positions in
the mass media field (TAR, section II, judgements nos. 13766/2005, 13767/2005,
13768/2005). The administrative judge deemed AGCOM’s warning not to perform
behaviours contrary to article 2 of law no. 249/97 - for it being a mere order to comply
with an already unbreakable, binding and imperative specific law provision - not to be
one of those coercive administrative acts for which, in case of non-compliance, a fine is
inflicted under article 1, paragraph 31 of law no. 249/1997.
With regard to the telecommunications field, the Lazio TAR confirmed the
legitimacy of five resolutions relating both to regulatory accounting and to Telecom
Italia’s interconnection reference offers (Resolutions nos. 399/02/CONS; 02/03/CIR;
03/03/CIR; 11/03/CIR; 289/03/CONS). These resolutions had been adopted by
AGCOM in the framework of European rules and regulations aimed at the development
of competitive dynamics in the communications market, so granting new entrants the
possibility to use the existing copper distribution network (the so-called access
network), with the development of an “intermediate market” between incumbent
operators and end users, pursuant to regulations (involving the so-called “last mile”
issue) characterized by cost-oriented rates for the use of networks by new entrants
((TAR, section II, judgement no. 1773/06).
With regard to organisation matters the Lazio TAR ruled on two appeals lodged
by Torre Argentina Società di Servizi s.p.a., Divisione Centro D’Ascolto
dell’informazione radiotelevisiva (the Torre Argentina’s division for radio and
television news monitoring), against AGCOM and Isimm Ricerche s.r.l., on one hand,
on account of the revocation of the invitation to tender for the awarding of the public
service contract for the monitoring of national broadcasters’ television programmes
(with regard to the fields of socio-political pluralism, users’ guarantees and
programming obligations), and, on the other hand, on account of the exclusion of the
claimant’s offer (“which turned out to be higher than the tender basis”) from the
invitation to a private treaty.
207