95 / 148
and development of digital terrestrial television, and phase 2, in which new digital multiplexes
will be planned, and adjustments will be established so that the radioelectric channels 61 to
69, which were being used by the digital multiplexes in the previous phase can be replaced by
others in phase 2. This will conclude before 1 January 2015 with the allocation of the definitive
digital multiplexes to each qualifying company, thereby ending the shared use of digital
multiplex capacity by the national terrestrial public service concession operators.
On 16 July 2010, the Spanish Cabinet adopted a resolution to allocate a national digital
multiplex to each national DTT concession operator: Antena 3, Gestevisión Telecinco,
Sogecable, Veo Televisión, NET TV and Gestora de Inversiones Audiovisuales La Sexta. The
digital multiplex is composed of four digital television channels that can be operated twenty-
four hours a day.
The allocation was made upon request and after the switch-off of analogue broadcasting, once
it had been verified that the digital terrestrial television service concession operators had met
the obligations relating to the drive and development of digital terrestrial television that they
had assumed in the framework of the Spanish Technical Plan for Digital Terrestrial Television
and the Royal Decree governing the specific allocation of DTT multiplexes, following the
switch-off of analogue terrestrial television broadcasting.
A judgment handed down on 27 November 2012 by Chamber Three of the Spanish Supreme
Court rendered void the resolution of the Spanish Cabinet of 16 July 2010 which allocated to
each of the Digital Terrestrial Television (DTT) licence holders, including Antena 3 de
Televisión, S.A. and Gestora de Inversiones Audiovisuales La Sexta, S.A., the capacity
equivalent to a digital multiplex with national coverage composed of four channels.
This allocation had been made pursuant to a set of rules which, since 1997, upon approval of
the National Plan for Digital Terrestrial Television, and particularly upon enactment of Law
10/2005, of 14 June, governed the transition from analogue terrestrial television to DTT,
which was completed in 2010. The allocation was made once the Government had verified that
the licence holders had complied with all the requirements and obligations incumbent upon
them to foster transition to DTT, as a condition for gaining access to the multiplex.
The judgment of the Spanish Supreme Court annulling the allocation was based primarily on
the fact that the allocation was made after the General Audiovisual Communications Law came
into force (which had been enacted one month before the Spanish Cabinet adopted the
annulled resolution), which stipulates that the licences must be granted through a tendering
procedure. The Supreme Court inferred from this that "the licences must reflect the content
which existed upon entry into force of the Law, with no more channels being allowed", while
the General Audiovisual Communications Law does not provide for any safeguard permitting
the regulations to be applied prior to their entry into force.
The judgment of the Spanish Supreme Court noted at the time that the matter would have
been resolved had the General Audiovisual Communications Law included a provision
envisaging that the rules in force prior to its enactment should continue to be valid. The
obstacle posed by the judgment of the Spanish Supreme Court is therefore basically formal,
because neither the conceptual basis of DTT, nor consequently its completion through the
allocation of a multiplex to each operator, have ever been questioned.
On 22 March 2013, the Spanish Cabinet approved a decision to comply with the judgment of
the Supreme Court handed down on 27 November 2012, indicating that the channels affected
had to cease broadcasting, and linking this process with that of the liberalisation of the digital
dividend.
Subsequently, on 18 December 2013, the Spanish Supreme Court issued a writ of execution
for the aforementioned judgment, referring, inter alia, to the channels affected by its
judgment, which would include three of the channels currently being operated by Atresmedia.