§ 3.

(1) Where a television broadcaster has acquired exclusive broadcasting rights for an event referred to in an Ordinance issued under § 4 hereof, it shall allow the event to be seen on a television channel freely accessible in Austria by at least 70 % of licence-payers and viewers exempted from the licence fee, whereby the arrangements set out in the Ordinance (whole or partial live or deferred coverage) shall be complied with. For the purposes of this subparagraph, coverage shall be deemed “deferred” where no more than 24 hours elapse between the beginning of the event and the beginning of the broadcast. (2) For the purposes of this Act, “free-access television channels” shall mean channels which viewers are able to receive without any additional or regular payments for the use of technical equipment for decoding. “Additional payments” within the meaning of this subparagraph shall not include the licence fee (§ 2 of the Licence Fees Act (Rundfunkgebührengesetz — RGG)), the programme charge (§ 20 RFG), a cable network connection fee and the standing charge payable to a cable operator. (3) The obligation referred to in subparagraph (1) shall be deemed to have been met if evidence is provided that the television broadcaster did all that could be reasonably expected under normal market conditions in an attempt to enable the event as referred to in subparagraph (1) to be viewed on free-access television channels. A television broadcaster may, in order to reach an amicable agreement about what constitutes such conditions, refer the matter to the Federal Communication Senate (Bundeskommunikationssenat). The latter shall involve all parties in efforts to reach a settlement and shall draw up a written record of the negotiations and their outcome. (4) Where no agreement is reached, the Federal Communication Senate shall, at the request of one of the television broadcasters involved, decide whether the broadcaster concerned has adequately fulfilled its obligations under subparagraphs (1) and (3). In the event that the broadcaster has not adequately fulfilled these obligations, the Federal Communication Senate shall take the place of the broadcaster in determining what is meant by ’normal market conditions’ as referred to in subparagraph (3). In particular, the Federal Communication Senate shall lay down an appropriate market price for the granting of broadcasting rights. (5) A television broadcaster which has not adequately fulfilled its obligations under subparagraph (1) may be sued for damages in a civil action. The claim to damages shall also include compensation for loss of earnings. (6) Action for damages shall only be permissible once a decision has been given as referred to in subparagraph (4). Without prejudice to subparagraph (7), the court and the parties to the proceedings referred to in subparagraph (4) shall be bound by a non-appealable ruling. (7) Where, in proceedings referred to in subparagraph (6), the court considers that the decision is unlawful, it shall discontinue the proceedings and file a complaint with the Higher Administrative Court (Verwaltungsgerichtshof - VwGH) under Article 131 subparagraph (2) of the Federal Constitution (B-VG) requesting a declaratory ruling confirming the unlawfulness of the decision. When a ruling has been issued by the VwGH, the court shall continue its proceedings and rule on the dispute in keeping with the legal view of the VwGH.