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Must-Carry: Renaissance 2012-5 Or Reformation?

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Must-Carry: Renaissance 2012-5 Or Reformation? Must-carry: Renaissance 2012-5 or Reformation? LEAD ARTICLE Must-carry Regulation: a Must or a Burden? European context Article 31 Universal Service Directive Case law of the Court of Justice of the European Union National regulations Belgium (Flanders), France, Germany, The Netherlands, Sweden, United Kingdom RELATED REPORTING Must-carry on the March Control New provisions ZOOM Due Prominence in Electronic Programme Guides The Retransmission of Broadcast Programming on Cable Television in the USA IRIS plus 2012-5 Must-carry: Renaissance or Reformation? ISBN (Print Edition): 978-92-871-7550-2 ISBN (PDF-Electronic Edition): 978-92-871-7553-3 Price: EUR 24,50 Price: EUR 33 European Audiovisual Observatory, Strasbourg 2012 IRIS plus Publication Series ISSN (Print Edition): 2078-9440 ISSN (PDF-Electronic Edition): 2079-1062 Price: EUR 95 Price: EUR 125 Director of the Publication: Wolfgang Closs, Executive Director of the European Audiovisual Observatory E-mail: [email protected] Editor and Coordinator: Dr Susanne Nikoltchev, LL.M. (Florence/Italy, Ann Arbor/MI) Head of the Department for Legal Information E-mail: [email protected] Editorial Assistant: Michelle Ganter E-mail: [email protected] Marketing: Markus Booms E-mail: [email protected] Typesetting: Pointillés, Hoenheim (France) Print: Pointillés, Hoenheim (France) Conseil de l’Europe, Strasbourg (France) Cover Layout: Acom Europe, Paris (France) Publisher: European Audiovisual Observatory 76 Allée de la Robertsau F-67000 Strasbourg Tel.: +33 (0)3 90 21 60 00 Fax: +33 (0)3 90 21 60 19 E-mail: [email protected] www.obs.coe.int Contributing Partner Institutions: Institute of European Institute for Moscow Media Law Media Law (EMR) Information Law (IViR) and Policy Center Franz-Mai-Straße 6 Kloveniersburgwal 48 Moscow State University D-66121 Saarbrücken NL-1012 CX Amsterdam ul. Mokhovaya, 9 - Room 338 Tel.: +49 (0) 681 99 275 11 Tel.: +31 (0) 20 525 34 06 125009 Moscow Fax: +49 (0) 681 99 275 12 Fax: +31 (0) 20 525 30 33 Russian Federation E-mail: [email protected] E-mail: [email protected] Tel.: +7 495 629 3804 www.emr-sb.de www.ivir.nl Fax: +7 495 629 3804 www.medialaw.ru Please quote this publication as: IRIS plus 2012-5, Must-carry: Renaissance or Reformation? (Susanne Nikoltchev (Ed.), European Audiovisual Observatory, Strasbourg 2012) © European Audiovisual Observatory, 2012 Opinions expressed in this publication are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. 2012-5 p.1 Must-carry: Renaissance or Reformation? © 2012, European Audiovisual Observatory, Strasbourg (France) 2012-5 p.3 Foreword On 11 July 2012, the Tribunale Amministrativo Regionale per il Lazio, an Italian administrative court in Rome decided on a case involving the Italian public service broadcaster RAI (TAR Lazio Decision n. 6320). It found RAI guilty of having violated its charter by encrypting its free-to-air TV channels, which made it impossible for Sky Italia to carry RAI channels on its platform. In its decision, the details of which you may find in issue 2012-8 of our electronic newsletter IRIS (http://merlin.obs.coe.int/newsletter.php), the court stresses the importance of public service content which must be “universally accessible via all technology platforms”. For this very reason public service content continues to be the prime object of the so called “must-carry” rule, roughly summarized as the obligation of certain transmitting services to make broadcast channels serving clearly defined general interest objectives available to the public. This rule dates back to the emergence of commercial television, when it was introduced as a means to secure the diversity of content offers. It is recognized by Art. 31 of the EU’s Universal Service Directive and part of many national laws. The history and today’s reality of the must-carry rule are explained in the Lead Article of this IRIS plus. As the RAI case demonstrates, however, times have changed in that providers of content serving these general interest objectives are not always keen on making their content available. A certain number of these dislike the obligation to do so free-of-charge as has been the tradition under must-carry. As a consequence, the idea of a corresponding must-offer obligation for certain content providers emerged. This gained prominence as the number of competing transmission services increased, which meant that the demand for content – especially content serving public interests – went up as well. The Lead Article of this IRIS plus also touches briefly on the must offer issue and it includes reflections on the future of must-carry/must-offer regulation given the multiplication of media outlets and transmission services and their increasing convergence. The Related Reporting-section offers examples taken from seven different countries concerning the introduction, modification, application and enforcement of must-carry and/or must-offer rules taken from the past 18 months of IRIS newsletter reporting. Some of the goals and reasoning justifying must-carry obligations are also valid for the so called “due prominence” rules, which require EPG providers to give public service content an equal or even favoured visibility in their page ranking. As with must-carry, these rules find a legal basis in EU law, namely the Access Directive, and have been introduced into national laws. Based on this parallelism, the first part of the ZOOM-section describes the European framework for EPG regulation and explains the relevant national rules of the United Kingdom and Germany. The second part of the ZOOM contrasts the EU rules on must-carry with those of the United States. Contrary to the drive for diversity that motivated European legislators to intervene in favour of public content, the US concern was one of promoting local content. This part of the ZOOM guides the reader through the history of US must-carry rules and linked thereto are some major differences between the European and the US approaches to broadcasting regulation. In addition it also sheds light on market forces which keep the must-carry debate on the boil in the US and which – in one or the other variant – matter just as much on the European side of the Atlantic. © 2012, European Audiovisual Observatory, Strasbourg (France) 2012-5 p.5 TABLE OF CONTENTS LEAD ARTICLE Must-carry Regulation: a Must or a Burden? by Nico van Eijk and Bart van der Sloot, Institute for Information Law (IViR), University of Amsterdam....7 ...........................................7 ........................................8 .....................................14 .........................................19 . .20 Must-carry on the March by Rayna Nikolova (New Bulgarian University), Eugen Cojocariu (Radio Romania International), Páll Thórhallsson (Legislative Department, Prime Minister´s Office, Iceland and Reykjavik University in Media Law), Andrei Richter (Faculty of Journalism, Moscow State University), Jurgita IešmantaitĖ Radio and Television Commission of Lithuania), Małgorzata PĘk (National Broadcasting Council of Poland) ........................25 ............................................26 ............................................26 ..............................................27 ...........................................28 ............................................28 ..............................................29 ............................................30 .....................................31 © 2012, European Audiovisual Observatory, Strasbourg (France) 2012-5 p.6 ZOOM Due Prominence in Electronic Programme Guides by Bart van der Sloot, Institute for Information Law (IViR), University of Amsterdam ...........33 ..........................................33 ................................34 ........................................35 ............................................36 ...........................................37 The Retransmission of Broadcast Programming on Cable Television in the USA: When Interests Collide by Jonathan D. Perl, Media Center, New York Law School, New York, NY ..................39 .....................................39 .............................41 ...........43 .........43 .........44 ............................45 ...........................................46 © 2012, European Audiovisual Observatory, Strasbourg (France) LEAD ARTICLE 2012-5 p.7 Must-carry Regulation: a Must or a Burden? Nico van Eijk1 and Bart van der Sloot2 Institute for Information Law (IViR), University of Amsterdam. The first must-carry rules date back to 1990, the time when space on analogue broadcasting networks was limited and when supply grew quickly due to the introduction of private broadcasters. To ensure that channels of general interest would still be transmitted, countries introduced rules to regulate the scarcely available cable capacity. The major reason for introducing these must-carry rules was to guarantee access to public service broadcasting and ensure a diverse choice of programmes. The option in the European regulatory framework of reserving distribution capacity for selected channels, is characterised by its technology-neutral formulation. A distinctive feature of these European rules is that must-carry obligations can only be imposed if the respective networks are the principal means of receiving radio and television channels for a significant number of end-users of these networks.
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