A judgement in the case concerning a complaint from the Polish Chamber of Information Technology and Telecommunications (PIIT) about amendment to a general exclusive frequency licence granted to INFO-TV-FM sp. z o.o.
On 18 August 2011, a judgement of the Provincial Administrative Court in Warsaw (further referred to as the WSA) was published. It referred to a complaint from the Polish Chamber of Information Technology and Telecommunications about a decision of the President of UKE dated 1 March 2011 Ref: DZC-WAP-5176-7/09 (164) maintaining in force a decision of the President of UKE dated 10 December 2010 Ref: DZC-WAP-5176-7/09 (131) on amendment to a general exclusive frequency licence granted to INFO-TV-FM sp. z o.o., covering radio channels with 8 MHz bandwidth in the 470-790 MHz frequency range allocated to the provision of mobile audiovisual media services, including radio or TV broadcasting in the entire country area in the radiocommunication broadcasting service. The amendment consisted in introducing technological neutrality by means of resignation from indicating a particular technology (DVB-H) for the provision of services, however maintaining their mobile nature and adding two programmes to the list of radio and TV programmes offered within a mulitiplex signal.
The WSA dismissed the complaint from PIIT
Quoting the reasons for its ruling orally, the WSA stated that it had found no breach to the procedural and material law in the issuance of appealed decisions of the President of UKE.
The Court stressed that the case was not about the amendment of a general exclusive frequency licence (which was suggested by PITT ), but merely about amendment to the way in which frequencies can be used.
The Court shared the current line of the Supreme Administrative Court's case law (a judgement of 20 January 2011 file ref: II GSK 106/10 was quoted) according to which all amendments to a general exclusive frequency licence, as in this case, not leading to more spectrum in possession of a given undertaking, do not require a tender (competition) and therefore the provision of Article 116 (7) of the Telecommunications Act does not apply. Amendments with respect to the technology mean amendments to the way in which previously granted frequencies can be used, without extending the spectrum granted to INFO-TV-FM sp. z o.o. under the licence. Therefore, in the Court's view, the President of UKE was allowed to make this amendment without a competition.
Moreover, the Court found that the powers of the President of UKE as an authority responsible for frequency management, included, inter alia, introducing amendments to previously granted general exclusive frequency licences, according to the current market conditions. The President of UKE correctly applied Article 155 of the Code of administrative proceedings to the amendment in the frequency usage methods by means of introducing technological neutrality, without holding another competition.
The Court also indicated that one of the main objectives of the Telecommunications Act is to create conditions for ensuring technological neutrality (Article 1 (2) (5) of the Telecommunications Act). Therefore the parties were able to take into account the fact that the conditions and frequency usage methods as initially approved, can be amended in the future according to market demands or social interest.
In the WSA opinion, PIIT objections referring to wrong assessment of the facts of the case by the President of UKE and breaches to the Telecommunications Act, are groundless. Possible threat of interference referred to in the PIIT complaint should be eliminated at the stage of granting radio licences by the President of UKE, while failure to meet obligations under a general exclusive frequency licence by an authorised entity may result even in its withdrawal by the President of UKE.
Moreover, in the Court's view, the parties to competition (tender) proceedings on the general exclusive frequency licence, do not automatically become parties to administrative proceedings in the case of amendment to this licence.
Broader reasons for the Court's ruling will be presented in a written justification.
The judgement is not valid.File Ref: VI SA/Wa 879/11