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

On this platform, Jaime Rodríguez Díez, lawyer – partner of Díez & Romeo Abogados, shares the latest news on the state of DAB in Spain.

Between September and October 2022, he Constitutional Court has admitted to processing 16 Support Resources filed by several radio stations against the refusal to call for broadcasting licenses digital terrestrial sound (DAB). It is a step forward with respect to the situation of the DAB, since for several years we have been experiencing a notable stagnation in its development.

The events date back to 2018, when the radio stations asked the CCAA for call for public tenders of vacant digital radio licenses. Various reasons they promoted those requests: the growing private initiative due to the low number of licenses, the spectrum availability and the real implementation of press freedom in the digital world. Furthermore, there is a key element: the authorities had the legal obligation to tender for audiovisual licenses unallocated. However, many CCAA, salvo Extremadura, Balearic Islands and Navarra, se They refused to put the available licenses out to tender.

Given this, since Ten and Romeo The possibility of going to court was advised. In fact, many stations 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, the recognition of the duty to call for unallocated audiovisual licenses regardless of the reasons that gave rise to that situation, as well as the violation of media plurality by refusing to call audiovisual contests, leaving citizens without radio offers 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, just as they did exist autonomous communities, like Navarra, which sí que habían impulsado licitaciones de licencias.

Por parte de las CCAA, estas negaban la convocatoria admitiendo motivos como que, el transcurso de más de 1 año desde la planificación de frecuencias, las hace desaparecer y ya no pueden sacarse a concurso; las dificultades de implantación de la tecnología de radio digital; las dudas sobre la viabilidad económica radio digital en España, porque han pasado 18 años desde que se otorgaron las concesiones, y, finalmente, la aparente falta de interés de las emisoras.

Tras los trámites procesales, la mayoría de los TSJ fallaron a favor de las emisoras y dictaron sentencias condenando a convocar las licencias de radio digital disponibles. De ahí, que CCAA como Extremadura, Navarra and Catalonia They will abide by the sentences.

A Supreme Court decision questioned

Faced with this situation, the majority of the Autonomous Communities resorted to Supreme Court, which ended up setting a new jurisprudential doctrine in favor of the extinction of frequencies over time.

That is, the Supreme Court said the following: if in the course of a year Since the spectrum frequencies are planned, the competition for radio licenses that use those frequencies is not called, said planning declines and is excluded.

The Constitutional Court has indicated that the refusal to call for digital radio licenses raises a legal question of relevant and general social or economic impact

As expected, no media accepted the Supreme Court's approach 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 applying for licenses to broadcast."

The Constitutional Court enters the scene

The rulings of the Supreme Court were appealed before the Constitutional Court for being contrary to the precepts of the Constitution that affect the media freedom. To date, the Constitutional Court has examined the support resources and has agreed admit them to processing. To date there are 22, although expect some more.

The admission of appeals to the TC for processing is very complicated, but in this case the Senior Magistrates have appreciated that there is a special constitutional significance, since this dispute may give rise to a dispute change of position in the decisions of the Constitutional Court.

Furthermore, in the decisions admitting appeals, the Constitutional Court has indicated that the refusal to call for digital radio licenses raises a legal question of relevant and general social or economic impact.

A change in the DAB panorama in Spain

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

Coming soon, we will have a conclusion, which may (or may not) shed light on a complex situation and of wide interest for the entire 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 Sentences the Constitutional Court will analyze all actions that have occurred in the lower courts. Coming soon, we will have its conclusion, which may (or may not) shed light on a complex situation and of wide interest for the entire broadcasting in Spain.

Jaime Rodríguez Díez

Lawyer – partner of Díez & Romeo Abogados