SLP 07 (2014)

͸.͸ Licensing of Broadcasting The insertion of the expressive right of States to require licenses for radio and TV broadcasting into the body of Article 10 para 1 of the Convention corresponded to the circumstances of the period of drafting of the Convention: At that time, the majority of European States operated with State owned system of communications; the high costs of investment prevented any significant appearance of private actors in this area. Later on, the technical and legal developments, particularly the appearance of cable transmission, have resulted in the abolition of State monopolies in the Western European countries and in the establishment of private stations in addition to the public services. The requirement of licensing of broadcasting services both on European and national level remained, however, unchanged: National licensing systems are required not only for the orderly regulation of broadcasting enterprises but also to give effect to international rules, including the ITU framework. 13 This framework, especially the binding Radio Regulations (Article 4 of the ITU Constitution) and a clearly more ancient set of rules than the Convention 14 expressly require that “no transmitting station may be established or operated by a private person or by any enterprise without a license issued in an appropriate form and in conformity with the provisions of these Regulations by or on behalf of the Government of the country to which the station in question is subject” (18.1 RR). 15 However, pursuing different aims and purposes, the system of the ITU differs from the area of human rights in several aspects: It is substantially State-based; the rights of States to restrict or even suspend certain services are formulated unconditionally, without any test of proportionality: The regulation and control of national telecommunication systems belongs (despite of integration and harmonization efforts of the European Union in this sphere) still to the domestic jurisdiction of States – the fact that each country has the sovereign right to regulate its telecommunication is recognized in the Preamble of the ITU Constitution, para 1. International telecommunication provisions leave a substantial margin of appreciation to the national authorities. 16 Member States retain their entire freedomin relation tomilitary and radio installations [Article 48 (1) ITU Constitution]. Together with the rights derived from the ITU Constitution – the right of the public to use the international telecommunication service (Article 33 ITU Constitution) and the obligation not to cause harmful interference to the radio services or communications of other Member States (Article 45 ITU Constitution) – the Member States reserve the right to cut off, in accordance with their national law, any private telecommunications which may appear dangerous to the 13 ECtHR, Groperra Radio AG and Others v. Switzerland, op. cit ., para 60. 14 See 1906 Réglement de service annexé à la Convention radiotélégraphique internationale. 15 International Telecommunication Union, Radio Regulations, Version 2012. 16 ECtHR, Autronic AG v. Switzerland, op. cit., para 57.

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