2016Nu36903 Revocation of the disposition of refusal to renew the license for CATV broadcasting business

A Broadcasting Corporation A

B Representative Director

Law Firm LLC et al., Counsel for the defendant-appellant

Attorney Park Jong-sung, Attorneys Park Jong-sung, Park Ho-sung, Hong-sung, and yellow

The Minister of Science, ICT

Law Firm LLC, Attorney Park Jae-soo

Attorney Kim Jin-young, Kim Jin-hwan, Man-su, Man-si

Seoul Administrative Court Decision 2015Guhap69348 decided January 28, 2016

November 15, 2016

December 6, 2016

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s renewed license for CATV broadcasting business on July 23, 2015 to the Plaintiff on July 23, 2015

The rejection disposition shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The court's explanation on this case is consistent with the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, this court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Chapters 14 through 10 of the decision of the first instance court shall be as follows.

B) Comprehensively taking account of the overall purport of the arguments in evidence Nos. 2 and evidence Nos. 10, 11, 12, 15, 40, 41, 42, 59, and 9 and 26 of the Reasons for Disposition No. 2, the Plaintiff was the Plaintiff’s shareholder and the representative director C at the time of the Plaintiff’s lease of part of the above building **---***** the lessee who leased part of the above building at a price lower than the usual unit price leased by the Plaintiff. The Plaintiff was deemed to have submitted a lease agreement to the Defendant around 207 between the Plaintiff and D, but it is insufficient to recognize that the Plaintiff unfairly supported D by the method of paying a deposit and rent higher than the surrounding market price, and there is no other evidence to acknowledge otherwise. No reason for Disposition No. 2 is recognized.

000 won, “1,87,824,000 won,” on No. 8 of the first instance judgment No. 10,065,14,000, shall be deemed to be “1,187,824,000 won,” and, on the 10th day of the first instance judgment, the second to 17th day of the second instance judgment shall be deemed to be as follows:

D) Comprehensively taking account of the purport of the Plaintiff’s evidence No. 4 Disposition No. 136, No. 16, and No. 16, and No. 30, respectively, the Plaintiff’s actual investment in a local channel from 2006 to 2008 was an average of KRW 4,483,000 per annum, and real investment including personnel expenses was about KRW 120 million per annum. The investment plan was about KRW 12,100,00 per annum from the first data submitted by the Plaintiff. The annual average of KRW 126,000 per annum was 126 hours per year. Of these, the Plaintiff’s own production was 55 hours per annum. The Plaintiff asserted that the real investment was provided with stage, sound, and lighting equipment from K-Korea, KRW 100,000 per annum, the average annual average of KRW 100,000 per annum and KRW 25,000 per annum, and the total annual amount of KRW 100,515,29.

In light of the following circumstances, which can be seen by comprehensively considering the purport of the entire pleading in the above facts, i.e., the Plaintiff’s broadcast records, investment records, the status of contribution to community development, the participation records of public works, and the participation records of viewers production programs, etc., which are considerably low compared to other CATV broadcasting business operators subject to review for renewal of the same period; even if the Plaintiff reflects the portion of free provision of K-Korea, which the Plaintiff claims that is the investment records, compared to other television broadcasting companies, there is no objective data to confirm whether the portion of free provision of K-Co is used as the amount claimed by the Plaintiff; and there is no objective data to confirm whether the portion of free provision of K-Co has been used as the amount claimed by the Plaintiff; the reduced or exempted amount of fee was reported to have been excessive compared to the number of self-governments; and the fact that the Plaintiff was responsible for the exercise of the local event or produced the local program (Evidence evidence No. 17, 18, 19, 32, 44, 61).

○ The third page of the 13th judgment of the first instance court stated that the following contents are added (the plaintiff, for about one year from the end of the year 2004, referring to the high quality and high-speed Internet, and the bilateral transmission network for digital services in the future, and constructed the facilities to prevent any problem in digital broadcasting. However, the plaintiff did not invest in the facilities, etc. related to digital broadcasting after the renewed permission in 2006, and the above transmission network was installed by the plaintiff while converting from the leased network to its own network, so it is not only having the nature of investment for digital broadcasting, and therefore the above transmission network needs to be replaced in addition to the digital transmission network, it cannot be said that all facilities for digital broadcasting have been installed due to the installation of the above transmission network).

○ Up to 14 pages 13 of the judgment of the first instance court, as follows:

H) Sub-decisions

Among the grounds for the rejection disposition of this case, the grounds for the first, third, fourth, 5, 6, and 7 are recognized, and the grounds for the second disposition are not recognized.

3) Whether the discretion is deviates or abused or not

A person who intends to engage in CATV broadcasting business shall prepare the facilities and technologies in conformity with the standards prescribed by Presidential Decree and obtain prior consent from the Korea Communications Commission (Article 9 (2) of the Broadcasting Act); the defendant or the Korea Communications Commission shall, when granting permission, determine whether to implement the public responsibility, fairness and public interest; the appropriateness of management plans, such as planning, programming and production of broadcast programs; financial and technical capabilities of organizations and human resources; and other matters necessary for the implementation of the programs; and shall examine the implementation of the said measures; and then publicly announce the results thereof (Article 10 (1) of the Broadcasting Act). In addition, if a broadcasting business operator intends to continue broadcasting after the expiration of the term of validity of the permission, it shall apply mutatis mutandis the said standards to the defendant or the Korea Communications Commission; and if the defendant or the Korea Communications Commission intends to obtain the said permission, it shall examine whether the implementation of the measures for restricting CATV broadcasting business is inconsistent with the guidelines set forth in the subparagraphs of Article 10 (1) and Article 31 (1) of the Broadcasting Act; and if it intends to obtain the said permission or renewed permission, it shall examine the implementation of the guidelines for broadcasting business operator’s.

The Plaintiff’s ground for rejection is as follows: (a) it is difficult for the Plaintiff to submit more than 2 years’ revised permission to the Plaintiff on the grounds that it was difficult for the Plaintiff to verify that the Plaintiff had been subject to 6 years’ revised permission based on 20 years’ revised permission based on 20 years’ revised permission, and that it was difficult for the Plaintiff to submit 6 years’ revised permission based on 5 years’ revised permission based on 6 years’ revised permission, and that it was difficult for the Plaintiff to find that there was no other ground for rejection orders based on 12 years’ revised permission based on 5 years’ revised permission, and that there was no other ground for rejection orders based on 6 years’ revised permission, 60 days’ revised permission based on 5 years’ revised permission, and that there was no other ground for rejection orders based on 12 years’ revised permission, as the Plaintiff did not have any other ground for rejection orders based on 9 years’ revised permission.

3. Conclusion

If so, the plaintiff's claim of this case is without merit, and it shall be dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed.

The presiding judge, the highest judge

Judges fixed-term machines

Judges Cho Yong-chul