Must-carry: renaissance or reformation?

The European Audiovisual Observatory has published a new report on must-carry and regulating broadcasting networks in Europe, Must-carry: Renaissance or Reformation?.

In an increasingly fierce fight for market share in a fragmented market, public service channels, commercial broadcasters and niche market programming compete with each other. In the European context, legislators try to ensure some broadcasting space for content of general interest, usually provided for by public service channels, via so-called ‘must-carry’ legislation.

Last summer in Poland, for example, brand new legislation made it compulsory for all networks to carry the first two public service channels and one regional public service channel. The European Audiovisual Observatory, part of the Council of Europe in Strasbourg, analyses the must-carry situation in Europe in its brand new report: Must-carry: Renaissance or Reformation?
The authors of the lead article, Nico van Eijk and Bart van der Sloot of Amsterdam’s Institute for Information Law (IViR) kick off their analysis with a useful potted definition of the rationale behind must-carry and must offer legislation: “ Must-carry aims at guaranteeing access to certain (broadcasting) networks for specified channels.

The must-offer phenomenon has arisen from the idea that channels also need to make their content available to the networks, not only to make the (basic) package more diverse but also to guarantee the economic viability of certain distribution networks”.
Focusing on the European context, the authors explain that the must-carry issue in Europe is dominated by Article 31 of the EU’s Universal Service Directive, in the first instance, as well as certain precedents set by European case law.
In a useful summary of the Directive’s main constituent parts, the authors explain that must-carry obligations “can only be imposed on networks that are the principal means to receive radio and television broadcasts for a significant number of end-users” (the so-called quantitative requirement).

Furthermore, networks obliged by must-carry legislation to carry certain channels have a right to expect remuneration from these channels which must be “non-discriminatory, transparent and proportionate”.
According to the Directive, must-carry regulation is “technology neutral” in that it may apply to cable, satellite, terrestrial networks and also IPTV. Lastly the authors explain that this legislation applies only to “available distribution capacity” (i.e. broadcasting networks) and not to the content itself.
Turning to case law of the European court of Justice, the authors focus on two ground-breaking Belgian and one German case as an example of what happens when national disputes are brought before a higher, European legal instance.

The report then goes on to look at the implementation of European must-carry rules in the national legislation of Belgium (Flanders), France, Germany, the Netherlands, Sweden and the UK.
The Related Reporting section of this new publication offers short articles on the latest European legal developments in the field of broadcasting.
Rounding off the report is a Zoom section on the legislation governing Electronic Programme Guides (EPGs) and the prominence given to the various channels and content in the listings involved.

In this article, Bart van der Sloot of the IViR explains that the legislation of EPGs treads a fine line between the regulation of content and access, and between media-specific legislation and general competition law. Legislators in this context are faced with the contrast between maintaining a neutral position and, on the contrary, intervening to promote quality and diversity. The author concludes by raising the question as to whether future legislation will cover internet based EPGs such as smartphone apps or social network sites.
This publication finishes with a second Zoom section on must-carry legislation stateside by Jonathan Perl of the New York Law School. Perl explains that the primary motive behind must-carry legislation, introduced in the US in the early 1990s, was to ensure that local television channels (and thus local news) could also be carried by cable operators, a process known as “localism”.

However, a report published in summer of last year concluded that this legislation had not been instrumental in encouraging cable operators to carry local cable news operations.
Perl deduces that broadcasters will continue to argue that must-carry legislation in the US remains necessary and should even be reinforced, whereas cable operators argue that 20 years of must carry have not sufficed to produce localism. It is clear that the debate will continue as the interests of audiences and market players, as well as technology and market parameters continue to evolve.