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For the sake of completeness, content provider means an enterprise providing an integrated broadcasting content of 24 hours or a shorter period, available for transmission to the public. Otherwise said, the content provider offers the audio-visual content which is digitally transmitted through the network.
The digital transmission of the content is entrusted to a network provider which is an enterprise responsible for the establishment, operation, control or making available of a network. A licence from the National Telecommunications and Post Commission (''NTPC'') is required for the operation of a network provider, the latter being responsible for regulating all issues related to the network providers. In particular, private channels in Greece broadcasting their content through DIGEA, the only, to date, licensed network provider.
The licensing regime of television operators, has been regulated, throughout the years, by several legislative texts (initially by Law 2328/1995 and later by Law 3592/1997). However, the main characteristic of the media market in Greece is, since the entry of private media (i.e., in 1989), the uncertain licensing status of private television operators. Indeed, even though proper legislative tools were adopted, these were only partially enforced. As a result, the relevant legislative provisions remained dead letter, since even though invitations to tender for the licensing of analogue television were published all procedures were finally annulled. Thus, for years the Greek state, prolonged the uncertain status of the television operators by granting extensions to the terms of initially obtained provisional licenses, on the basis of subsequent legislative amendments to Law 1866/1989, by virtue of which licenses were originally issued. With regards to the Greek state's obligation for the implementation of terrestrial digital television, Law 3592/2007 did not contain a specific timeframe for the digital switchover and, therefore, all relevant crucial issues, including licensing, were to be decided at a later stage. In practice, the digital switchover was completed on February 2015 and currently all private channels are transmitting their programmes through digital technology, thus covering the entire Greek territory.
The licensing of content providers of free-to-air terrestrial digital broadcasting under new media law
However, only recently and following a bitter debate between the opposition parties and the governmental coalition, a new media law passed by the Hellenic Parliament on 24 October 2015, and came into force on 29 October 2015 (Official Gazette A' 133/29.10.2015), (''Law 4339/2015'' as stated above) the primary goal of which is to address the said uncertain licensing status of private channels and in particular to regulate the licensing regime of the content providers.
Under the new law, licenses to be granted are further categorised into (a) licenses of national coverage, and (b) licenses of regional coverage. National coverage licenses cover the entire Greek territory population-wise, whereas regional licenses cover specific regional zones, according to the applicable Frequency Charts.
Overview of the licensing requirements
(i) Tender Procedure
Licensees of free-to-air terrestrial digital broadcasting are allocated following a licensing tender, and, in particular, through an auction ran by the NRTC, which is an independent authority, responsible for the regulation, supervision and monitoring of media. In this respect, the NRTC shall be responsible for the issuance of an invitation to tender, which will mark the launch of the tender process. The invitations to tender will define the terms and the tender procedure, including the auction pattern that will be followed each time.
During a pre-selection phase the NRTC shall examine, whether applicants fulfil the requirements set by the new law and shall compile, in this respect, a list including bidders meeting, tender conditions and rejected applicants. The preselected bidders shall participate in the auction, which shall take place in multiple rounds and consist of higher bids compared to the starting price. Following tender completion, an announcement of successful bidders for each auction per coverage, programme and content shall be posted on NRTC's website.
The tender procedure shall be conducted in accordance with the applicable Frequency Charts of terrestrial digital broadcasting of television signals, which sets in detail the frequencies, the transmission restrictions imposed on network providers, the permitted broadcasting centers as well as their geographic coverage area and the technical specifications that network providers must satisfy.
Further, the Minister of State, following NRTC's reasoned opinion and public consultation, will set out the tender specifications, including the number of content providers licenses that will be tendered, per scope (national or regional), per programme (informative or non-informative) and per content (general or thematic). In addition, the Minister of Finance and the Minister of State shall also define, by a joint decision, the starting price (per licence category) of the tender, following NRTC's opinion.
(ii) Conditions for participation
The new media law sets out, in detail, the conditions for participation in the tender procedure, which
are as follows:
(a) Foreign or domestic companies that wish to participate in the tender procedure must be companies limited by shares (SA) (or joint ventures) active exclusively in the field of media, and having as object the provision of free-to-air digital terrestrial broadcasting services. Local authorities (OTA) operating under the legal form of a limited company by shares, may also participate so long as they fulfil the conditions set by the law;
(b) Participating companies need to have a minimum share capital during the entire licensing period, which is set at EUR 8 million for licenses of an informative programme of general content, EUR 5 million for licenses of an informative programme of thematic content, and EUR 2 million for licenses of a non-informative programme. In this respect, a letter of guarantee must be provided if the minimum shareholding requirements are not met during the tender procedure and up to the moment that the candidate is awarded the licence. With regards to regional licenses, the minimum share capital shall be decided jointly by the Minister of Finance and the Minister of State;
(c) The shares of the applicant companies as well as the shares of the companies holding the share capital of the applicant should be nominative shares up to the level of natural persons, with the exception of (i) foreign companies not being under such obligation in accordance with the law governing the foreign company; and (ii) companies listed on a stock exchange of the EU or OECD countries. In this case, foreign companies must submit before the NRTC an official certificate issued by the competent authorities providing that there is no obligation to have nominative shares under the law governing such entity and a list of shareholders having more than 1 per cent of the company's voting rights;
(d) Additional impediments are provided for shareholders of participating companies, holders of more than 1 per cent of the share capital of the applicant, members of the board of directors of the applicant as well as legal representatives of the applicant, who should not (i) be convicted for participation in a criminal organisation, for bribery, for fraud and legalisation of proceeds from illegal activities, and (ii) participate in companies that conclude public contracts or in opinion polling companies. In the latter case, entities must submit relevant official certificates;
(e) Certain minimum conditions shall apply, such as the requirement for technological equipment and infrastructure that guarantees sound digital broadcasting, and the requirement for a standard number of staff employed (based on the type of licence). Applicants must also meet specific content requirements;
(f) Participating companies shall not enter into liquidation, or become insolvent and shall be compliant with their insurance and tax obligations (and provide the relevant tax and social security contributions clearance certificates);
(g) Finally, applicants shall also present evidence with regards to the source of the financial means available for the operation of the company and must also submit a fee payable to the Greek state, which shall be determined in the invitation to tender to be issued by the NRTC.
(iii) Ownership restrictions
Participation in another company operating in the same media sector is permitted provided that there is no exercise of control, whereas, participation in another company operating in a different media sector is subject to considerable restrictions (Law 4339/2015 in conjunction with Law 3592/2007).
In this respect, a distinction between informative and non-informative channels is established. Thus, in case of informative channels participation (up to 100 per cent) is permitted (a) in one television channel, and (b) in one informative radio station, whereas, with regards to non-informative channels, participation is permitted as follows:
(a) one (national or regional) television channel (if the company also participates in an informative television channel); or (b) two (national or regional) television channels (provided that the company does not have a participation in any informative television channel) and (c) 15 per cent of all radio licensees issued by tender for each prefecture/region and for a maximum of three prefectures/regions, or (d) up to five radio stations in a maximum of three prefectures/regions.
The above restrictions apply to partners, shareholders, members of the Board of Directors and administrators established in Greece, but not if they are listed on a stock exchange of the EU or OECD.
(iv) Foreign ownership restrictions
Foreign investors may freely participate in broadcasting activities in Greece, since there is no limit to the participation of non-Greek companies in a television station. However, foreign companies shall meet the same conditions for participation in the tender procedure (e.g., must be companies limited by shares (SA) (or joint ventures)), with a few exceptions as referred to above.
(v) Concentration of control
In addition to the ownership restrictions, specific dominance thresholds apply, depending on the number of media sectors involved. In any case, companies are not prohibited from holding a dominant position, but they must ensure that this dominant position is not abused. Applicants must submit to NRTC official certificates declaring that there is no violation of the concentration of control rules.
(vi) Duration and possibility for renewal
Licenses are limited in time. In particular, the term of the awarded licenses shall be 10 years from the date of issuance and, so far, no renewal option has been provided for by the new law.
(vii) Modification and assignment of licenses
No change of use and transfer of a licence is permitted. However, the transfer of shares or transfer of the business of the content provider is permissible and shall be notified to the NRTC and the Secreteriat General of Media within 10 days.
In addition, content providers shall not assign the management and the exploitation of the television content or of the business to third parties, but are allowed to assign content production to companies of the same group or, in the case of specific programmes, to independent production companies.
In any case, the content provider is under an obligation to conclude an agreement with a network provider within three months from the award of a licence.
(viii) Terms and conditions that the licensees must meet throughout the duration of the license
For licenses to be valid certain terms need to be continuously met by television content providers, such as, inter alia, (a) an agreement shall be put in place between the content provider and a network provider within three months from the award of the licence, the latter being responsible to cover the relevant zone; (b) content providers shall deliver their technically sound digital signal to the network provider; and (c) content providers must guarantee the uninterrupted transmission of their content to the network provider. Apart from the above, content providers are obliged to, inter alia, conclude collective bargaining agreements with their staff, comply with the European and national copyright legislation, maintain a facility within the Greek territory during the entire licensing period, maintain equity at the declared level and not alter the terms of the licence.
(ix) Revocation of licenses
Finally, the NRTC has a wide array of reasons to revoke the awarded license, including - but not limited to: (a) failure to timely submit incorporation documentation by way of which the required legal form is certified; (b) staff reduction; (c) minimum share capital reduction; (d) alteration of the terms of the licence; (e) non-compliance with the requirement to have nominative shares belonging to natural persons; and (f) failure to conclude an agreement with a network provider within the time limits provided by the Law 4339/2015.
Undoubtedly, the newly adopted Media Law 4339/2015 sets out, in detail, the roadmap for the award of licenses to content providers of digital broadcasting, thus making the media market more promising from an investment perspective.
In terms of timing, in view of the fact that, specific prerequisites for the commencement of the tender procedure, such as the appointment of NRTC members, have not been fulfilled yet, we could not safely conclude on the likely timeframe within which the tender procedure for the issuance of digital broadcasting licences will be initiated.
For the sake of completeness, we note that, according to the latest media reports, the government aims to introduce soon an amendment to the new media law to accommodate received criticism.
Augustine Almyroudi joined the firm in 1992 and has extensive experience advising entities providing electronic communications services in Greece on the current regulatory framework, submitting applications for the issuance of electronic communication licenses and representing clients before the National Telecommunications and Post Commission (EETT). She also advises on compliance with the licensing and regulatory requirements governing the media sector and liaising with the National Council for Radio and Television (ESR), as well as the regulatory requirements for entities established outside the EU wishing to provide telecom and media services in Greece or abroad. Ms Almyroudi has expertise in competition law aspects of mergers and acquisitions, privatisations and joint ventures and the implementation of the legislation governing monopolies, oligopolies and the protection of free competition. She has a substantial practice advising on the application of EU and competition law in Greece and state aid issues, as well as on dawn raids.
Tania Patsalia joined the firm in 2010 and is a member of the European Union and Competition and Telecommunications Media and Technology (TMT) departments. Her practice is focussed on the application of EU law in Greece and the regulatory requirements governing the TMT sector. Ms Patsalia provides guidance to telecom operators on licensing requirements in Greece and compliance with annual reporting obligations to the National Telecommunications and Post Commission (EETT). She advises on licensing and regulatory aspects of media law and liaises with the National Council for Radio and Television (ESR). Her EU and Competition law practice is focussed on advising on antitrust, merger control and state aid issues. Prior to joining the firm, Ms Patsa;oa worked as a lawyer with Ashurst in Brussels as a member of its EU and Competition law team and as a trainee at the European Commission, Directorate-General for Competition, Cartels’ Unit.
Post-digital Switchover Era: The New Licensing Regime Regarding Digital Television broadcasting in Greece
M & P Bernitsas Law Offices
Greece has recently adopted a new media law, intended to address the longstanding uncertain licensing status of content providers of free-to-air terrestrial digital broadcasting. The newly adopted media law (''Law 4339/2015'') regulates the licensing of content providers of free-to-air terrestrial digital broadcasting.