Rethinking Must-Carry and Retransmission Consent Regulation in the Digital Era
| Autor | Clara Luz Alvarez |
| Cargo | Member of the Mexican National Researchers System (Level III) and researcher of the Universidad Panamericana (Mexico). She received the National Journalism Award for spreading democratic culture for her program Código Democracia at the Congress Channel (2014). Clara-Luz is author of the books Telecomunicaciones y Radiodifusión en México (2018),... |
| Páginas | 9-57 |
Rethinking Must-Carry and Retransmission Consent Regulation in the Digital Era (p. 9-57) 9
ALVAREZ, C. L.
Rethinking Mu st-Carry and Retransmissio n Consent in the Digit al Era
.
The Law, S tate and
Telecommunic ations Review
, Brasilia, v. 12 , n. 1, p. 9-56, May 2020. DOI: https://doi.org/
10.26512/lstr.v12i1.24914.
RETHINKING MUST-CARRY AND
RETRANSMISSION CONSENT REGULATION IN THE
DIGITAL ERA
Submitted
: 29/05/ 2019
Clara-Luz Alvarez *
Revised
: 15/07/ 2019
Accepted
: 25/07/2 019
Abstract
Purpose –
The emergence of new technological platforms to access onlin e services and
content have transformed the m edia landscape drama tically. Such transfor mation requires
policymakers to re examine the decades-old regulations traditionally addressed to
broadcasters and telecommunica tions providers a s must-carry and retransmission consent
rules. This paper reviews must- carry regulation and case law in the United States of
America, Mexico, and France. That is because each one of these countries has offered a
variety of justifications for suc h rules (compe tition, local content, view ers´ rights,
diversity). T he purpose of this rev iew is to analyze whe ther or not the origina l reasons for
must-carry re gulation are still valid in th e digital era.
Methodology/appr oach/design –
The r esearch was condu cted through document review
and analysis of nor ms and case law from each one of the s elected countries (USA,
Mexico, and France) based on information collec ted via academic researc h. Also,
analysis of statistical sources of information was attained to portray the penetrat ion status
of telecommunic ation services over the last decades in order to full y u nderstand the
context in whi ch must-carry rules were enacted.
Findings –
Policymakers should consider other regulatory mechanisms to achieve the
original reason s for must-carry rule s. The dramatic increase in the variety of device s (e.g.,
TV, tablet, mobile phones, smart TVs), service an d content distributors ( e.g., free -to-air
TV, c able TV, internet), and service providers (e.g., broadcaster s and ove r-the-top
*
Member of the Mexican Na tional Researcher s System (Level III) and research er of the
Universidad Panamer icana (Mexico). She received the National Journalism Award for
spreading democratic culture fo r her prog ram Código Democraci a at the Congress
Channel (20 14). Clara-Luz is author of the books Telecomun icaciones y Ra diodifusión en
México ( 2018), Telecomun icaciones en la Constitución (2017), El Regulador de
Telecomunicac iones (2017), Derecho de la s Telecomunicaciones (3rd e d., 2014) and
Internet y Derechos Fundamenta les (2011), and coordinator of the book
Telecomunicac iones y Tecno logías de la Información (201 2). She was rapporteur for the
International Telecommun ications Un ion's study group of ICT accessibili ty for persons
with disabilities (2006-2011), and Commissioner for the M exican Te lecommunications
Commission (Cofete l, 2003 -2006). Addres s: Universidad Panamericana . Facultad de
Derecho. Aug usto Rodin 498, México, Ciudad de México, 0392 0, México. ORC ID:
https://orcid.or g/0000-0002-5906-445 0. E-mail: claraluzalvarez@gmail.com,
calvarezg@up.edu.mx. Website: www.claraluzalvarez.org.
10
Rethinking Must-Carry and Retransmission Consent Regulation in the Digital … (p. 9-57)
ALVAREZ, C. L.
Rethinking Mu st-Carry and Retransmis sion Consent in the Digita l Era
.
The Law, S tate and
Telecommunic ations Review
, Brasilia, v. 12 , n. 1, p. 9-56, May 2020. DOI: https://doi.org/
10.26512/lstr.v12i1.24914.
internet providers) strongly sug gests a reconsideration of the current approach. Yet any
amendment to the c urrent reg ulation wi ll depend on internet penetration and a ccess to
new video distributio n p latforms in a given geographic area. That is to say, withou t
internet acc ess, free-to-air TV might continue to be an important platform for serv ice and
content distrib ution.
Practical implications –
Iden tifying and analyzing the reasons for imposing must-carry
rules in connection with the telec ommunication services penet ration over the pas t
decades, provides the n ecessary framewor k to assess the conve nience and ne ed to
maintain such rules or to introduce changes and identify which modifications must be
done to further the objectives pursued in a given country.
Originality/value –
Th is research is original insofar as it analyses must -carry rules and
case law of three different countries with their own bac kground and objec tives. Mus t-
carry rules are being enacted in several c ountries inc luding in those in Latin Am erica.
This paper is useful for both po licymakers and re searchers to provoke an in-de pth
analysis as to whether must-carry r ules should be enacted, amen ded or elimina ted, based
on the specific context and objectives pur sued in a given country.
Keywords
: Must-Carry . Must-Offer. Broadcast ing. Pay-Tv. Competitio n.
INTRODUCTION
Free-to-air television has been considered an important service that
confers social value. This service h as provided access to information and
entertainment, as well as contributed to freedom of expression, civic
participation, and democracy.
Free-to-air television needs spectrum, a pub lic good that is scarce.
Therefore, spectrum scarcity1 has determined both the available broadcasting
stations and the justification for the so-called public trustee obligations or public
service obligations imposed on broadcasters. Public trustee obligation s bind
broadcasters to comply with certain public interest obligations, yet broadcasters
are also protected insofar as the social value of their service must be p reserved.
Must-carry, in general terms, means the retransmission of free -to-air TV
or radio channel programming by telecommunications network operators as in
the case of cable TV or satellite TV.2 The other side of the must-carry coin is the
1
Spectrum scarci ty occurs for several reasons, includ ing the nature of spectrum as a
limited natural resource, the existence (or not) of technology to exploit the spectrum,
together with regulatory decisions a s to whether to grant the use of the spectru m to one or
more persons . See Alvarez, C. L., 2 016.
2
Satellite TV is a distributio n service of audiovisu al content to subscriber s, provided by
an op erator through satellite co mmunication. In the USA, such ser vice is al so known as
direct broadca st via satellite or DBS.
Rethinking Must-Carry and Retransmission Consent Regulation in the Digital Era (p. 9-57) 11
ALVAREZ, C. L.
Rethinking Mu st-Carry and Retransmissio n Consent in the Digit al Era
.
The Law, S tate and
Telecommunic ations Review
, Brasilia, v. 12 , n. 1, p. 9-56, May 2020. DOI: https://doi.org/
10.26512/lstr.v12i1.24914.
must-offer rule, which obliges free-to-air TV or radio stations to provide their
programming for carriage by telecommunications networ k operators. Must-carry
regulation3 has had different backgrounds and ru les when enacted in each
country.
The main argum ent of this article is that new platforms to access content
may eliminate the justification for upholding the must-carry regulation as it
stands today. Therefore, alternative mech anisms should be assessed to promote
the original reasons for enacting the must-carry regulation. Any amendment to
the current must-carry regulation will depend on internet penetration and new
video distribution platforms in a given geographic area, as well as on whether
any or all of the reasons behind the must-carry regulation should be preserved in
the digital era.
For purposes of this article, the cases of the USA, Mexico, and France
were selected. The United States of America was chosen because it clear ly
presents a long evolution of the regulations for the retransmission of audiovisual
content through pay-TV network operators. On its turn, Mexico, as a Latin
American country, was picked – for the first time ever–, because it has no t only
established must- carry and must-offer regulations but also included them in its
Constitution in 2013. Lastly, France was selected because, as a Member State of
the European Union (EU), it is subject to the European framework, in addition
to its own national must-carry regulation set forth both in a law pertaining to
freedom of communication and in a code linked to local public services. Despite
their v ery different backgrounds and their own particularities, these three
countries have generated case law that reflects scrutiny of the must-carry
regulation, its underlying reasons, and objectives, as well as a refusal to
acknowledge that online video services are also subject to the must-carry
regulation.
In the USA, the must-carry regulation appears as a way to balance the
interests of broadcasters and those of telecommunications network operators,
with due consideratio n for viewers’ rights. Mexico´s must-offer rule for free-to-
air TV channels was far more important than the must-carry rule since the main
free-to-air TV channels held a major share of the television viewers and were
almost an essential element for any pay-television operato r package. In France,
where television was initially only provided by pub lic entities, must-carry
regulation em erged as a need to continue with the distribution of public
television on cable TV n etworks as a way to preserve public interest
programming.
3
For purposes of this article, must-carry regulation may also include mu st offer,
retransmissio n consent rules and the car ry one, carry all rule.
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