DAB in Spain, getting closer? The tender reaches the Constitutional Court

In this rostrum, Jaime Rodríguez Díez, lawyer – partner of Díez & Romeo Abogados, share the latest news on the state of DAB in Spain.

In between September and October 2022, the constitutional Court has accepted the procedure 16 Amparo Resources filed by various radio stations against the refusal to summon broadcasting licenses digital terrestrial sound (DAB). It is a step forward with respect to the DAB situation, since for several years we lived a notorious stagnation in their development.

The facts date back to 2018, when the radios requested the CCAA the call for public tenders of vacant digital radio licenses. Various reasons prompted those requests: the growing private initiative given the low number of licenses, the spectrum availability and the real implantation of press freedom in the digital world. In addition, there is a key element: the authorities had the legal obligation to tender audiovisual licenses without adjudicating However, many CCAA, salvo Extremadura, the Balearic Islands and Navarre, se they refused to put out to tender the available licenses.

Given this, from ten and romeo the possibility of going to court was advised. In fact, many broadcasters put it into practice by going to the different Superior Courts of Justice of the CCAA.

Freedom of the press vs. administrative obstacles

The arguments of the court battle were based, on the part of the radio stations, in four fundamental principles. Among them stands out the recognition of the duty to convene audiovisual licenses without awarding regardless of the reasons that gave rise to this situation, as well as the media plurality violation by refusing to call audiovisual contests, leaving citizens without a radio offer and the audiovisual market blocked. However, it must also be taken into account that the Legislation has not regulated the radio spectrum so that it can remain unused, as well as that they did exist autonomous communities, like Navarra, which Yes, they had promoted license bids.

by the CCAA, they denied the call, admitting reasons such as that, the passage of more than 1 year since the frequency planning, makes them disappear and they can no longer be removed contest; the difficulties of implementation of digital radio technology; las Doubts about the economic viability of digital radio in Spain, because 18 years have passed since the concessions were granted, and, finally, the apparent lack of interest from broadcasters.

After the procedural procedures, the majority of the TSJ ruled in favor of the broadcasters and issued sentences condemning to summon the available digital radio licenses. Hence, CCAA as Extremadura, Navarra and Catalonia They will abide by the sentences.

A challenged Supreme Court decision

Faced with this situation, most of the CCAAs resorted to the supreme court, which ended up setting a new jurisprudential doctrine in favor of fading of frequencies by the passage of time.

That is, the T. Supreme said the following: if within a year since the spectrum frequencies are planned, the competition for radio licenses that use those frequencies has not been called, said planning decays and is excluded.

The Constitutional Court has stated that the refusal to summon digital radio licenses raises a legal question relevant and general social or economic repercussion

As expected, no media accepted the approach of the Supreme Court considering that violates freedom of information and communication of art. 20.1 a) and d) of the Constitution. In fact, from his defense lawyers, it was pointed out that: "It is not possible that the loss of a deadline to call the contests, which corresponds to the CCAA, ends up leaving the radio stations without opting for licenses to broadcast."

The Constitutional Court enters the scene

The judgments of the T. Supremo were appealed before the constitutional Court for being contrary to the precepts of the Constitution that affect the media freedom. To this day, the T. Constitutional has examined the protection resources and has agreed admit them to the procedure. To date there are 22, although it is expect some more.

Admitting appeals to the TC for processing is very complicated, but in this case the High Magistrates have appreciated that there is a special constitutional importance, as this dispute may result in a dispute occurring. change of position in the decisions of the Constitutional Court.

In addition, in the decisions to admit appeals, the Constitutional Court has indicated that the refusal to summon digital radio licenses raises a legal question relevant and general social or economic repercussion.

A change in the DAB landscape in Spain

They are more and more numerous stations what they intend to legalize, despite the difficulties set by the CCAA They do not call for licensing contests. That affects the plurality of radio offers, prevents the listeners have more press freedom y blocks the hiring of journalists and radio technicians. Hence the important socio-economic repercussion mentioned by the Constitutional Court.

Very soon, we will have a conclusion, which may (or may not) shed light on a complex situation and of broad interest for the entirety of the broadcasting in Spain.

Las CCAA affected by this decision, for having refused the call, are Asturias, Canary Islands, Cantabria, Castilla y León, Castilla La Mancha, Basque Country and La Rioja.

Before issuing the Judgments the Constitutional T. will review all actions that have been given in the lower courts. Very soon, we will have its conclusion, which may (or may not) shed light on a complex situation and of broad interest for the entirety of the broadcasting in Spain.

Jaime Rodriguez Diez

Lawyer – partner of Díez & Romeo Abogados

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