Candidates for Biel TV broadcast licence essentially equivalent

At the start of 2023, the Federal Office of Communications (OFCOM) put 38 radio and TV licences out to tender for the period 2025 to 2034. On 11 January 2024, the Federal Department of the Environment, Transport, Energy and Communications (DETEC) awarded a television licence for the “Biel/Bienne” coverage area to Mystik SA, a company operating as Canal B SA (in formation). DETEC took the view that Canal B SA (in formation) was the candidate best able to fulfil the performance mandate. On 12 February 2024, TeleBielingue AG lodged an appeal against this ruling with the Federal Administrative Court (FAC).

Three-step licencing procedure
The Radio and Television Broadcasting Act provides for a three-step licencing procedure. It describes the general requirements to obtain a licence. If the licencing authority has to decide between several candidates, the licence is awarded to the candidate that is best able to fulfil the relevant performance mandate. If several candidates seem essentially equivalent in this respect, preference is given to the candidate who best enhances the diversity of opinion and programming.

TeleBielingue AG argued that Canal B SA did not fulfill the licencing requirements and requested an improvement in the rating of its tender and the rating of Canal B SA’s tender to be reduced.

Essentially equivalent candidates
In its judgment, FAC confirms that Canal B SA fulfils the licencing requirements since financial viability only has to be credibly demonstrated and since the contributions are primarily produced in the coverage area. It corrects DETEC’s evaluation with regard to one selection criterion and two sub-criteria. First, the evaluation method for one sub-criterion is found to be inconsistent with federal law because it discouraged the employment of trainees. Second, FAC finds DETEC made a legal error in correcting the TeleBielingue offer and in considering an irrelevant element. Taking these corrections into account, the candidates are essentially equivalent. As a result, DETEC must determine which candidate best enhances the diversity of opinion and programming.

The Court partially upholds the appeal and refers the matter back to DETEC. To avoid jeopardising the security of supply, FAC grants the current licencee TeleBielingue AG an interim licence of five months from the date of the judgment.

This judgment is final and may not be appealed to the Federal Supreme Court.