IRIS Plus 2012-5: Must-carry: Renaissance or Reformation?

Author: Nico van Eijk and Bart van der Sloot, Institute for Information Law (IViR), University of Amsterdam

Published: 01/09/2012

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.