Consultation on a proposal for amendments to the Broadcasting Regulations - listing of events of major importance for society

Consultation on a proposal for amendments to the Broadcasting Regulations (No. 153 of 28 February 1997) - listing of events of major importance for society

1.             Introduction and background

The Ministry of Culture hereby presents a proposal for amendments to the Broadcasting Regulations (No. 153 of 28 February 1997). It is proposed to include in Chapter 5 of the Broadcasting Regulations a provision for the drawing up of a list of events of major significance for society (important events), cf. section 2-8 of the Broadcasting Act. Reference is also made to article 3a of the Television Without Frontiers Directive (89/552/EEC, amended by Parliament and Council Directive 97/36/EC) on events of major importance for society. Article 3 of the Television Without Frontiers Directive (hereafter referred to as the TVwF-Directive) has been replaced by Parliament and Council Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (hereafter referred to as the AVMS-directive”) article 14. The AVMS-directive is, thus far, not incorporated into the EEA-agreement. The AVMS-Directive article 14 on events of major importance for society is identical to article 3a of the Television Without Frontiers Directive. A prospective Norwegian transposition of the AVMS-Directive will thus not affect the current section 2-8 of the Broadcasting Act.

Proposals to draw up lists of events of major importance for society have undergone consultations previously, inter alia in 2006 and in 2009. The Ministry of Culture has not, in the light of comments to these consultations, thus far deemed it necessary to implement these proposals.

Many important events are in recent years sold to free television services. This has taken place partly because those holding the rights to important events often have an interest in securing a broadest possible coverage for such events. In the last few years the prices for television rights to a number of sports-events have risen. A possible explanation may be the increase in the number of pay-tv services following the migration to digital television. Competition between broadcasters has increased and there is a higher risk that free television will lose to pay-tv in the contest for rights to televise productions of important events.  Free television services have limited chances of success in a bidding-war.  There is thus a risk that transmissions of certain major sports-events will be offered exclusively by pay-tv services. The Ministry of Culture therefore on this basis finds that it is appropriate to propose a list of important events in accordance with article 3a. The objective of the list is to ensure that important events may continue to be televised also in the future on free television that covers a significant proportion of the population.

The Ministry of Culture has specifically requested that the parties consulted submit opinions on whether a Norwegian list of important events is needed.

2.             Current law

Under article 3 of the TVwF-Directive, Member States may take measures to ensure that broadcasters do not broadcast on an exclusive basis events which are regarded as being of major importance for society (hereafter “important events”) in such a way as to deprive a substantial portion of the public of the possibility of following such events, whether via live or deferred coverage, on free television. Member States may draw up a list of designated events to which this shall apply.

It is up to Member States themselves to decide whether they wish to introduce this regulatory framework at the national level. Events which are placed on the list may be national or non-national. The TVwF-Directive requires a list of designated events to be drawn up in a clear and transparent manner in due and effective time (i.e. in time sufficient to ensure compliance in practice), cf. article 3a, paragraph 1. Lists must be approved by the Commission before they can take effect, cf. article 3a, paragraph 2. In Norway’s case the EFTA Surveillance Authority will be responsible for approval.

Article 3a, paragraph 3, contains a mandatory rule which Member States are obliged to implement in their national legislation. Member States must ensure that broadcasters under that Member State’s jurisdiction do not exercise exclusive rights in such a way that a substantial proportion of the public in another Member State is prevented from following events which that other Member State has designated, provided the list has been drawn up and approved in accordance with paragraph 1 and paragraph 2 above.

The TVwF-Directives provisions concerning important events are implemented in the Broadcasting Act section 2-8, cf. Proposition no. 2 to the Odelsting (1999-2000), cf. Recommendation no. 26 to the Odelsting (1999-2000). Section 2-8 inter alia provides for the drawing up in the Broadcasting Regulations of a list of events of major importance to society as well as provisions on the resolution of price conflicts. Section 2-8 of the Broadcasting Act gives Norway an opportunity to ensure that television companies in Norway or other countries that are bound by the EEA Agreement do not exercise exclusive rights to televise important events in such a way as to deprive a substantial proportion of the Norwegian public of the possibility of following such events on free television.

In accordance with the Broadcasting Act section 2-8, third paragraph, a list established pursuant to the first paragraph of the same provision is applicable to agreements concluded after 30 July 1997. The said provision entered into force on 14. January 2000 and therefore has been given retroactive effect. A possible list of important events in the Broadcasting Regulations will thus apply to agreements that have been concluded before the Regulations enter into force. In Proposition no. 2 to the Odelsting (1999-2000), page 26, the Ministry states the following concerning the date of application of the provision:

In the opinion of the Ministry the question of retroactivity should be assessed with respect to whether it is reasonable that the provision is given the same date of application as within the EU. It should i.a. be considered whether the provisions allow for sufficient predictability for the parties concerned.  The objective of the rules as well as consideration for uniform rules for a largest possible number of European states weigh in favour of fixing the same date as the EU. The same applies to the fact that the rights-holders, broadcasters etc that are concerned must be considered to be well aware of the contents of the amending Directive [97/36/EC] and that the amending Directive is to be transposed in the EFTA/EEA-States.

The rationale behind the date of application was to fix the same date in Norway as in the EU. The Ministry is aware of the fact that some disapproval may arise of the regulations’ applicability to agreements that have already been concluded.  The Ministry would like to emphasise in this respect that it is a reasonable assumption that rights-holders and broadcasters are well aware of the contents, including the expected date of application given in section 2-8 of the Broadcasting Act.  A list of important events has furthermore been subject to public hearings on several prior occasions.

Currently eight countries have drawn up lists of important events which have been approved by the EU Commission: the United Kingdom, Austria, Belgium, Germany, France, Finland, Ireland and Italy. These lists primarily feature major sports events such as the Olympic Games and the FIFA World Cup and UEFA European Cup.

3.             The Ministry of Culture's assessments

In practice, a list will entail that rights-holders will be obliged to offer their exclusive rights to transmit major events to broadcasters that fulfil the following criteria:

a)     free television

b)     the service is available to a substantial proportion of viewers in Norway

Free television

The purpose of the regulatory measure is to enable viewers an opportunity to follow important events on free television. The current section 5-2 of the broadcasting regulations contains the following definition of the term "free television":

“Free television means television channels which can be received by the public without additional payment. Licence fees and annual subscription fees to a cable network or communal aerial installation for reception of channels in accordance with section 5-2 are not regarded as additional payment.”

The Ministry recognises that this definition may be unclear. In the 2006-consultation the Ministry of Culture proposed an amendment to the regulation that underlined that only television that is available without payment of subscription fees is to be regarded as “free television”. This would in practice entail that only the NRK would fall within the definition of free television.  As a consequence of changes in the television offer subsequent to the discontinuation of the analogue terrestrial network, the Ministry of Culture has come to the conclusion that the term “free television” should be defined wider than what was proposed in 2006. The majority of television viewers in Norway after the discontinuation of the analogue terrestrial network are connected to a television distributor which excludes the reception of services without the subscription of a basic package or payment of a basic fee.  In the view of the Ministry of Culture, the regulations should therefore make unequivocally clear that free television encompasses services that are made available to the public without other payment than a licence fee and a fee for the basic tier package or basic fee. The Ministry of Culture therefore proposes an amendment of the regulations to the effect that only television that i s available free of payment other than the licence fee, a fee for the basic package or basic fee is to be regarded as “free television”. This interpretation of the term “free television” is furthermore in line with the definition of the term in the TVwF-Directive, cf. preamble 22 of the Directive.

Substantial proportion of viewers

The notion that the service can be received by “a substantial proportion of the viewers” in Norway means that at least 90 per cent of the viewers actually receive the service. It is therefore proposed that the wording of the Broadcasting Regulations section 5-1 is amended so as to clearly designate that “a substantial proportion of the viewers” means services that are in fact being received by 90 per cent of viewers. In practice this entails that the service is considered to be received by “a substantial proportion of the viewers” if 90 per cent of the viewers receive the service either through a basic tier package, as an individual service without any obligation to subscribe to a basic tier package, or as an unencrypted service. It will be based on a concrete assessment of individual cases whether a service in fact is being received by 90 per cent of viewers.  

What services are considered to be received by a substantial proportion of the viewers on free television may vary from time to time. The Ministry of Culture therefore proposes that the Media Authority shall decide by individual decision what services qualify as free television that can be received by a substantial proportion of the viewers. A list of qualifying services should at any given time be accessible on the Media Authority’s web-pages. Broadcasters that are not on the list should be able to address the Media Authority in order to request an individual assessment of whether it fulfils the criteria.  

The preamble of the AVMS Directive 49 states that the Olympic Games and the football World Cup and European Football Championship as types of events that would typically feature on a list.

According to the EU Commission’s approval practice as regards approval of lists, four criteria[1] apply to Member States’ selection of events for listing. As a rule at least two of the following four criteria must be met in order for an event to be approved for listing:

1.         The event has traditionally been broadcast on free television and has enjoyed high viewing figures in the Member State concerned

2.         The event has particular cultural importance for the population of the Member State concerned as an expression of that Member State’s cultural identity

3.      A national team is participating in a major international tournament

4.      The event is of particular importance to the public in the Member State concerned, and not merely for viewers who usually watch this type of event.

These criteria must be applied when selecting events for inclusion in a Norwegian list. Viewing figures are one of the factors to which the EU Commission has given weight when deciding whether an event is important enough for a Member State to have it approved for listing. Member States shall, when selecting events for inclusion, moreover ensure that regulatory measures have minimal competitive effects.

3.3 Proposed events to be included in the Norwegian list:

The Ministry proposes that the following events should qualify as events of major importance for society:

• The Olympic Summer and Winter Games
• The Football World Cup and European Football Championship for men, including qualifying matches involving the Norwegian national team
• The World and European Handball Championships for women
• The Norwegian Cup Final in football for men
• The World Ski Championships, Nordic disciplines
• The Alpine Skiing World Championships
• The Holmenkollen Ski Festival
• The Biathlon World Championships

Tournaments are in their entirety to be considered as an event of major importance for society unless otherwise indicated in the list. For all events, it is proposed that the provision includes both male and female athletes, unless the list specifies otherwise.

On notification to the EFTA Surveillance Authority, comprehensive justifications must be provided for all the events on the list, in accordance with the criteria mentioned in 3.3.  The Ministry of Culture therefore requests that any proposals to add entries to the list be accompanied by a comprehensive justification for each proposal, based on the said criteria.  

The Ministry of Culture emphasises that listing does not entail a requirement to the effect that broadcasters that fulfil the above criteria (qualified broadcaster) must acquire the rights to, and televise, listed events. The list does however provide qualified broadcasters with an option to purchase broadcasting rights from a non-qualified broadcaster (i.e. a broadcaster that is not being received by a significant proportion of the viewers on free television) that has acquired exclusive rights to an event on the list.

A qualified broadcaster may itself choose to televise in part or in its entirety an event that has been acquired by a non-qualified broadcaster. A situation may therefore arise where parts of certain events, for instance in the Olympics, are televised by a qualified broadcaster, while other athletic events are televised exclusively by a non-qualified broadcaster. Instances may also occur in which several qualified broadcasters televise the different sporting events that together constitute the same listed event.

Criteria for televising the event on a deferred basis

In accordance with article 3a of the TVwF-Directive, Member States when drawuing up a list of important events should determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage. The Ministry proposes that qualified broadcasters as a rule should televise the listed events via live coverage, unless the transmission takes place at night between 24:00 and 6:00 am; the event consists of several parallel events; or other reasons indicate that it would be in the public interest that the event be televised on a deferred basis. The latter point entails that the regulations shall be enforced in accordance with the principle of editorial independence.

The Ministry of Culture emphasizes that the proposed list is based on current viewing figures. The Ministry of Culture will review regularly whether the list should be amended as a result of changes in the viewing figures of the individual events.

Remuneration for broadcasting rights and conflict resolution

It cannot be ruled out that disagreement will arise between the parties over the pricing of broadcasting rights. The TVwF-Directive contains no provisions on the economic terms that qualified broadcasters should be offered. The European Commission has stated, however, that Member States may decide that rights shall be offered against fair remuneration.

In other countries where lists are in place under article 3a of the Directive, the parties themselves are expected to agree a fee for the transfer of broadcasting rights. In Ireland either party may petition the High Court for an order stipulating a fair market price for an event if the parties fail to reach an agreement. Where Austria and the United Kingdom are concerned, the regulatory bodies are responsible for determining a fair price in cases of price conflict. The Austrian regulator is empowered to establish a fair, market-based price for the transfer of broadcasting rights where the parties fail to reach an agreement.

The UK regulator Ofcom’s role is of an advisory nature. Ofcom designates fair remuneration for the transfer of rights taking account of the following factors:

• previous fees for the event or similar events
• time of day at which live coverage of the event takes place
• the revenue or audience potential associated with the live coverage of the event (e.g., the opportunity to sell advertising and sponsorship; the prospects for subscription income)
• the period for which rights are offered
• competition in the market place
• other factors that appear relevant to Ofcom in the particular case.

The Directive does not explicitly require Member States to establish separate bodies to assist in resolving possible price conflicts between licensees and broadcasters that satisfy the conditions. The European Commission accepts a variety of models for price resolution; cf. the fact that this has been resolved by various means in Member States which currently have lists in place pursuant to article  3a of the TVwF-Directive.

Section 2-8 of the Broadcasting Act provides for the adoption of regulations for resolving price conflicts with respect to important events. Where remuneration is to be fixed for the transfer of rights to broadcast events on a prospective Norwegian list, the Ministry of Culture considers it reasonable that agreements on remuneration should take as a point of departure the market price for similar television broadcasts; cf. Proposition no. 2 to the Odelsting (1999-2000) paragraph 4.4.5. This is in keeping with practice in other countries with lists in accordance with article 3a of the TVwF-Directive. In the instance that a conflict over remuneration arises that the parties are unable to resolve unaided, the case may be brought before the Media Authority for an assessment of what is to be considered as a reasonable market price. The Media Authority’s role shall merely have an advisory role. The Ministry of Culture presupposes that the Media Authority should draw up guidelines for the assessment of prices modelled on the system adopted by the UK regulator Ofcom.  

Procedural provisions

The Broadcasting Act section 2-8 entail that exclusive rights to a listed event may not be utilized in such a way as to prevent a significant proportion of viewers from following the event on free television. This may be solved in a number of ways, in practice. One solution is to leave to the parties themselves to ensure that events be televised by a qualified broadcaster. The authorities may alternatively assume a more active role by overseeing procedures between the parties as well as resolving potential conflicts by individual decisions.

The Ministry of Culture considers that the parties themselves are best qualified to reach agreement in accordance with the rules. The Ministry of Culture does, however, recognise the need for a procedure to effectively ensure that an event may be televised by a qualified broadcaster. Such a procedure may be appropriate both to ensure that the transfer of rights takes place prior to the event, and to give non-qualified broadcasters a degree of predictability as to the utilisation of rights they have acquired. The Ministry moreover proposes that each party may request of the Media Authority an advisory opinion on what is to be considered as a reasonable market price should the parties fail to reach agreement on the price.

The Ministry of Culture proposes the following procedural rules:

•    A qualified broadcaster must at the latest 10 months before the event takes places request the non-qualified broadcaster for acquisition of a listed event. In the event that no such requests have been placed before this deadline, the non-qualified broadcaster may exercise its exclusive rights.

In the experience of the Ministry, most sales of rights are concluded considerably earlier than 10 months before the event takes place. It can, however, not be excluded that rights to important events may be sold by rights-holders to broadcaster later than 10 months prior to the event. In such instances, the Ministry proposes that the procedural rules shall not apply. This entails that a qualified broadcaster may address a non-qualified broadcaster with a request to acquire the rights, in principle, up to the time at which the event commences. The Ministry assumes, however, that it will be in the parties’ interest to conclude rapidly any sale of rights even if no deadlines are applicable to such instances

In the opinion of the Ministry, transitional provisions may be called for, so that exclusive rights that have been acquired to important events taking place prior to 10 months after the Regulations have entered into force are encompassed by the proposed rules for a limited period. The Ministry will assess the need for transitional provisions continuously and specifically requests the consulted bodies’ opinions on this issue.

•    A non-qualified broadcaster upon receiving a request from a qualified broadcaster must within a month (9 months prior to the event) submit to the qualified broadcaster a written offer concerning the acquisition of rights to the event, alternatively a justification detailing how the non-qualified broadcaster will ensure with other means that a substantial proportion of the viewers will gain access to the event on free television.
•    The qualified broadcaster must within a month (8 months prior to the event), after having received an offer, notify the non-qualified broadcaster whether it wishes to acquire the television rights. 
•    In the event that the parties differ on the price for the transfer of rights, each of the parties may within a month at the latest (8 months prior to the event) after the qualified broadcaster has received an offer from the non-qualified broadcaster request of the Media Authority an advisory opinion on what is to be considered a  reasonable market-price
•    The Media Authority must issue an advisory opinion at the latest 6 months before the event takes place.

It cannot be ruled out that the parties are unable to reach an agreement even after the advisory opinion has been issued by the Media Authority. In such an event, the parties will be obliged to file a lawsuit.  The Ministry of Culture assumes that it will be in the best interest of the parties to clarify possible disputes as rapidly as possible and in good time before the event takes place. It is presumed that the procedure described above will effectively safeguard the intentions underlying section 2-8 of the Broadcasting Act.

The Ministry however, requests that the parties consulted give their opinion on whether the proposed measures are appropriate, inter alia whether the Media Authority should be given a more active role in the event of disputes between the parties. Such a role may for example entail that the Media Authority is given the authority to resolve disputes and/or order non-qualified broadcasters to sell television rights to qualified broadcasters.

Obligation to report

In order for the Media Authority to effectively enforce the provisions regulating important events, and in order for qualified broadcasters to be informed about who has acquired the rights to important events, the Media Authority should be given information about boradcasters’ acquisition of rights to listed events. Pursuant to section 5-3 of the Broadcasting Regulations, a broadcaster that acquires exclusive rights in its entirety or in part to events that are represented on other EEA Member States’ lists of important events shall report said acquisition to the Media Authority without delay. The wording of this provision involves listed events in other EEA Member States. When the introduction of a Norwegian list of important events now is being proposed, it is only natural that the obligation to report should be extended to also encompass the acquisition of exclusive rights in its entirety or in part to events included in the Norwegian list. The Ministry therefore proposes to extend section 5-3 of the Broadcasting Regulations to include also the acquisition of exclusive rights to events on the Norwegian list.

4.             Sanctions

According to the current regulations, the Media Authority may sanction infringements of the proposed provisions by issuing a warning cf. section 10-2 of the Broadcasting Act; a standardised financial penalty cf. section 10-3 of the Broadcasting Regulations cf. section 10-3 of the Broadcasting Act; or a coercive fine cf. section 10-4 of the Broadcasting Act. The Media Authority decides on case-by-case basis what type of sanction is to be applied. 

In the Ministry of Culture’s opinion, standardised financial penalties are inappropriate as a means of sanctioning infringements of the provision regulating important events.  The Ministry therefore proposes that the legal basis for imposing financial penalties pursuant to section 10-2 of the Broadcasting Regulations is extended to infringements of the provision regulating important events. The fine is fixed based on a discretionary assessment of the individual case based on what the broadcaster’s profit related to the infringement, the nature of the infringement and its gravity. The Ministry proposes to repeal the provision in section 10-3 of the Broadcasting Regulations providing legal basis for a standardised financial penalty for infringements of the provisions issued pursuant to section 2-8 of the Broadcasting Act.

5.             Economic and administrative consequences

The Ministry of Culture presumes that the Media Authority will need to procure assistance from external sources to be able to issue advice on what is to be considered reasonable market prices for the rights to important events. The ministry presumes that broadcasters will have strong incentives to reach agreements on reasonable remuneration, and hence that only in exceptional cases will it be necessary for the Media Authority to issue such advisory opinions.  The proposal to draw up a list of events of major importance to society will therefore not have significant administrative or economic consequences for public administration.

The Ministry furthermore emphasizes that the objective of the regulatory measure is not to reduce prices for the rights. However, it may not be ruled out that the regulatory measure may to some degree affect market prices, because non-qualified broadcasters will be aware that there is a possibility that other broadcasters will step in and acquire the rights. In what manner this will manifest itself in practice will probably vary on a case to case basis, amongst other things depending on to what degree the concrete rights are commercially or strategically important to non-qualified broadcasters.

6.             Proposed amendments to the Broadcasting Regulations of 28 February 1997

I

The following amendments are made to Regulations no. 153 of 28 of February 1997:

New section 5-1 shall read:

“Section 5-1   List of events of major significance for society”

The following events are considered to be of major importance for society

• The Olympic Summer and Winter Games, organised by the International Olympic Committee (IOC)
• The Football World Cup and European Football Championship for men organised by the FIFA and UEFA, including qualifying matches involving the Norwegian national team
• The World and European Handball Championships for women, organised by the International handball Federation (IHF) and the European Handball Federation (EHF), including qualifying matches involving the Norwegian national team
• The Norwegian Cup Final in football for men, organised by the Football Association of Norway The World Ski Championships, Nordic disciplines, organised by the International Ski Federation(FIS)
• The Alpine Skiing World Championships, organised by the International Ski Federation(FIS)
• The Holmenkollen Ski Festival, organised by the International Ski Federation(FIS)
• The Biathlon World Championships, organised by the International Biathlon union (IBU)

New section 5-1a shall read:

“Section 5-1a Scheduling of events”

The events specified in § 5-1 shall be televised via live coverage. The broadcaster may choose to televise the event via whole or partial deferred coverage if:

1.      The event takes place at night (24:00-06:00 GMT+1)

2.      The event consists of several sporting events

3.      Other aspects imply that it would be in the public interest that the event is televised on a deferred basis

New section 5-2 shall read:

"Section 5-2   Definitions”

A broadcaster is being received by a substantial proportion of the viewers on free television if:

1. The television transmission is de facto being received by at least 90 per cent of the viewers
2. The television transmission can be received by the viewer without additional payment, excluding licence fee, basic tier fee or basic fee

The Media Authority establishes a list of broadcasters that are being received by a substantial proportion of the viewers on free television.

 New section 5-2a shall read:

“Provisions on procedure and the role of the Media Authority as advisory body in cases involving disagreement on remuneration for transmission rights”

a)    A broadcaster that does not fulfil the criteria in section 5-2 and that has acquired the exclusive right to televise an event as specified in tha list in section 5-1is obliged to submit to broadcasters that fulfil the criteria in section 5-2, and that have requested the right to televise the event, in part or in its entirety, a written quotation concerning remuneration for  transferring in part on in its entirety the rights to broadcast the event or a justification for how the broadcaster will ensure that the event will reach a substantial proportion of the viewers on free television

b)     An offer or justification as detailed in paragraph a) must be submitted at the latest one month after reception of a request from a broadcaster fulfilling the criteria in section 5-2

c)     A broadcaster having received an offer pursuant to paragraph a) must accept the offer at the latest one month after reception of the offer

d)     Should the parties fail to reach agreement on the remuneration for the television rights to the event listed in the list in section 5-1, each of the parties may within a month after reception of an offer pursuant to paragraph  a) request of the Media Authority an advisory opinion on what is to be considered the market-price for the television rights

e)     The Media Authority must issue an advisory opinion at the latest 6 months before the event takes place

f)       A broadcaster may exploit its exclusive rights to an event as detailed in section 5-1 provided it has not received any request pursuant to paragraph a) at the latest ten months before the event listed in section 5-1 takes place.

g)     This section does not apply if exclusive rights to a television transmission of an event included in the list in section 5-1is transferred from a rights-holder to a broadcaster later than 10 months prior to the event included in the list in
section 5-1.

Section 5-3 shall read:

Section 5-3     Reporting of purchase

A broadcaster who purchases exclusive rights to entire events or parts thereof that figure in the list in section 5-1 or in other EEA states’ lists of important events approved by the EU Commission or EFTA’s Surveillance Authority and published in the Official Journal of the European Union shall immediately report the purchase to the Norwegian Media Authority.

Section 10-2 first paragraph shall read

“Financial penalty – discretionary determination”

In the event of infringement of provisions of Chapter 3 of the Act or rules laid down in pursuance of Chapter 3 other than those mentioned in section 10-1 of these Regulations, infringement of section 6-4 of the Act, or sections 1-4, 2-5, 2-6, 5-1a, 5-2a, 5-3 and 7-6 paragraph 1, the Norwegian Media Authority may impose a financial penalty determined by discretionary assessment. The same applies to infringements of licence conditions, given pursuant to section 2-1 of the Broadcasting Act, that detail clearly assigned obligations

Section 10-3, the first sentence of the first paragraph shall read:

In the event of infringement of section 2-1 first and third paragraph, section 2-2 first paragraph and conditions given pursuant to section 2-2 second paragraph of the Act, sections 2-4, 2-5 of the Act, or sections 1-3, 1-7, 2-1, 2-2, 2-4, 5-3, 5-4, 7-1 second paragraph, 7-6 no. 2 and 4, 7-7, 7-8, 7-9 second and third paragraph, 7-10 and 7-11 of these Regulations, the Norwegian Media Authority may impose a coercive fine in accordance with the following rules:

II

The Regulations shall enter into force on a date to be decided by the King in Council.

7.             Closing date for submissions etc

We request the consulted bodies to send any comments to the Ministry of Culture by September 27 2011. An electronic copy of submissions should be sent before the closing date to: postmottak@kud.dep.no.

Addressees are requested to forward the consultation document to relevant subordinate bodies etc not included in the address list.

Yours sincerely,

Bengt O. Hermansen
Acting Director General

Harald Høiby
Adviser

Annex: 1

From the Broadcasting Act:

Section 2-8                 Events of major significance

A broadcaster who has purchased the exclusive right to televise events of major importance for society may not exercise such exclusive right in such a way as to deprive a substantial proportion of the public of the possibility of following such events on free television.

Where a broadcaster under Norwegian jurisdiction has purchased the exclusive right to televise events which a country that has acceded to the EEA Agreement has declared to be of major importance for society and which have been approved by the European Commission or the EFTA Surveillance Authority, the broadcaster may not exercise such exclusive right in such a way as to deprive a substantial proportion of the public in the country concerned of the possibility of following such events on free television.

The first paragraph encompasses agreements on the exercise of exclusive rights entered into after 30 July 1997 in respect of events taking place after the commencement of this Act. The second paragraph encompasses agreements on the exercise of exclusive rights entered into after 30 July 1997 in respect of events taking place after the commencement of this Act and after a country that has acceded to the EEA Agreement has implemented provisions corresponding to the first paragraph of this Section.

The King may issue regulations containing further rules on the implementation of the first, second and third paragraph, including rules requiring the drawing up of a list of events that are of major importance for society and rules concerning the resolution of price conflicts.

From the Broadcasting Regulations:

Chapter 5       Utilisation of rights to televise events of major importance for society

Section 5-1     Substantial proportion of the viewers

“Substantial proportion of the viewers” means 90 per cent of the viewers.

Section 5-2     Free television

“Free television” means television channels which can be received by the public without additional payment. Licence fees and annual subscription fees to a cable network or communal aerial installation for reception of channels in accordance with section 5-2 are not regarded as additional payment.

Section 5-3     Reporting of purchase

A broadcaster who purchases exclusive rights to entire events or parts thereof that figure in other EEA states’ lists of important events approved by the EU Commission or the EFTA Surveillance Authority and published in the Official Journal of the European Union shall immediately report the purchase to the Norwegian Media Authority.

Section 5-4     Broadcaster’s obligations in relation to other EEA states’ lists of important events

Broadcasters may only utilise broadcasting rights in another EEA state in accordance with the rules that this EEA state has notified to, and for which it has obtained approval from, the European Commission or the EFTA Surveillance Authority.

From the Television Without Frontiers Directive :

Article 3(a)

1.

Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage.

2.

Member States shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph 1. Within a period of three months from the notification, the Commission shall verify that such measures are compatible with Community law and communicate them to the other Member States. It shall seek the opinion of the Committee established pursuant to Article 23a. It shall forthwith publish the measures taken in the Official Journal of the European Communities and at least once a year the consolidated list of the measures taken by Member States.

3.

Member States shall ensure, by appropriate means, within the framework of their legislation that broadcasters under their jurisdiction do not exercise the exclusive rights purchased by those broadcasters following the date of publication of this Directive in such a way that a substantial proportion of the public in another Member State is deprived of the possibility of following events which are designated by that other Member State in accordance with the preceding paragraphs via whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage on free television as determined by that other Member State in accordance with paragraph 1.