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of the definitive digital multiplexes to each qualifying company, thereby ending the shared use
of digital multiplex capacity by the national terrestrial public television 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 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 DTT service concession operators had met the obligations relating
to the promotion 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 Atresmedia
Corporación de Medios de Comunicación, 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 entry into force of the General Audiovisual
Communications Law (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.