1. INTRODUCTION
2. EUROPEAN UNION

2.1 Whats is the Scope of European must carry rules
2.1.1 Networks concerned
2.1.2 Associated facilities
2.1.3 Broadcast channels and services
2.2 What is not covered by the Directive.
3. Requirements applicable to national must-carry rules covered by Article 31
3.1 Limited to what is necessary
3.2 Proportionate
3.3 Transparent
3.4 Requirements in case of remuneration
4. MUST-CARRY IN SWEDEN
5. MUST-CARRY IN THE UK
6. MUST-CARRY IN ITALY
7. MUST CARRY IN GERMANY (NORDRHEIN-WESTPHALEN)
7.1 Must-carry rules regarding digital cable networks

7.2 Must-carry rules regarding analogue cable networks
8. MUST-CARRY IN BELGIUM
8.1 Must carry in the Flemish community of Belgium

8.2 Must carry in the French community of Belgium

8.3 Must-carry obligations in the capital Brussels

9. MUST-CARRY IN SPAIN
10. MUST-CARRY IN THE NETHERLANDS

1. Introduction

Must-carry obligations which are in place in most Member States require certain television and or radio channels to be carried over certain networks. They can be of benefit to both public and private broadcasters. Traditionally these rules were applicable only to cable networks but some Member States are now considering extending (or have already done so) ‘must-carry’ or similar rules to other networks. As an alternative or in addition to must carry obligations, some Member States, impose ‘must-offer’ requirements on public service broadcasters i.e. an obligation to provide certain channels to certain network operators.

Must carry rules restrict operators’ ability to use their own capacity freely. This inevitably has cost implications for commercial network operators. Such rules may have been accepted in the past when network operators had 'special or exclusive rights’ and or a monopoly for (cable) retransmission of television programmes in a given region.

However, following the implementation of the new directive 2002/77CE covering competition in the markets for electronic communications networks, Member States must remove ‘special or exclusive rights’ for the provision of all electronic communications networks, not just for the provision of electronic communications services.

The definition of electronic communications networks means that Member States are not permitted to restrict the right of an operator to establish, extend and or provide a cable network on the grounds that such networks could also be used for the transmission of radio and television programmes. It is now considered that, ‘special or exclusive rights’ which restrict the use of electronic communications networks to the transmission and distribution of television signals are contrary to European Competition rules because they allow a dominant undertaking to limit "production, markets or technical development to the prejudice of consumers.”

At the same time, must-carry obligations may be appropriate in the absence of alternative delivery mechanisms, including situations where subscribers are locked-in to a given platform.

In this respect, the new regulatory framework for electronic communications networks and in particular the Universal Service Directive included in the 2002 package is of particular importance for national must-carry obligations, since it includes a provision on ‘must-carry’ obligations bearing on network operators (Article 31 of the Universal Service Directive).

While recognising the ability of Member States to impose or maintain reasonable must-carry rules on network providers under their jurisdiction, Article 31 aims to ensure that these rules are proportionate, transparent, kept limited to what is necessary to meet clearly defined general interest objectives and is reviewed regularly. Additional conditions are also prescribed for the cases where remuneration is provided for. These different conditions are analysed in the EU section of this bulletin. The current status of the must carry rules in each main European jurisdiction is outlined in each country section of the bulletin.

2. European Union

2.1 What's is the Scope of European must carry rules

2.1.1 Networks concerned

Article 31 applies to networks used for the distribution of radio or television broadcasts to the public where a significant number of end-users of such networks use them as their principal means to receive radio and television broadcasts”. Currently the principal means to receive radio and television broadcasts are via the traditional “broadcast” platforms, namely cable, satellite and terrestrial broadcasting networks. The vast majority of households will continue to use a traditional “broadcast” platform for reception of broadcast channels in the foreseeable future. Extension of must-carry rules to other networks (such as 3G mobile phone) would only be legitimate if a significant number of endusers were to use such networks as their principal means to receive radio and television broadcasts.

2.1.2 Associated facilities

Article 31 does not give broadcast content providers access to associated facilities, e.g.conditional access systems (CAS). Access to such facilities is already covered by Articles 5 and 6 of the Access Directive, which grants any broadcast content provider access to CAS under fair, reasonable and non-discriminatory conditions.

2.1.3 Broadcast channels and services

Must-carry obligations may be adopted for the transmission of radio and television broadcast channels and services. The “broadcast services” category may include e.g. teletext and services designed to enable appropriate access by disabled users. Recital 43 explicitly states that “Must-carry” obligations may include the transmission of services specifically designed to enable appropriate access by disabled users”. Article 31 excludes services which are not broadcast.

2.2 What is not covered by the Directive.

Article 31 covers rules imposed on undertakings providing electronic communications networks but does not cover the content of the services delivered such as the issue of which broadcasters benefit from 'must carry' obligations or the presentation of broadcast navigation facilities, such as the prominence or visibility given to certain broadcasters' services within an electronic programme guide (EPG). These are content issues, which while remaining subject to non-discrimination and proportionality principle, are not addressed by the new framework.

3. Requirements applicable to national must-carry rules covered by Article 31

While explicitly recognising the ability of Member States to impose reasonable must-carry rules on network providers under their jurisdiction, Article 31 ensures that these rules are reviewed regularly and kept (i) limited to what is necessary to meet clearly defined general interest objectives (ii) proportionate and (iii) transparent.

3.1 Limited to what is necessary

Must-carry obligations must be limited to what is “necessary to meet clearly defined general interest objectives”. Such objectives would normally include considerations linked to pluralism or cultural diversity. These rules are not per se limited to radio and television broadcasts of public broadcasters. Recital 43 notes that “such obligations should only be imposed where they are necessary to meet general interest objectives clearly defined by Member States in conformity with Community law”. In line with relevant case law of the European Court of Justice, economic considerations would not be considered general interest obligations11. Clear definitions of the general interest objectives at stake will also facilitate the test as to whether the rules bearing on network operators are necessary to meet these objectives.

3.2 Proportionate

Must-carry rules should be proportionate, ie the means used to attain a given end should be no more than what is appropriate and necessary to attain that end: the means must be the minimum necessary to achieve the aim. While the question of what channels and services actually benefiting from must-carry is not an issue dealt with by Article 31, the high number of channels and services benefiting may however constraint capacity to an extent which would be disproportionate.

3.3 Transparent

Transparency increases legal certainty. The requirement that the radio and television broadcast channels and services benefiting from must-carry must be specified”, i.e. that they should be clearly identified in advance, should be viewed in this context. National practices for imposing must-carry vary considerably and the proposed framework merely require the procedures to be made more transparent.

3.4 Requirements in case of remuneration

There is no obligation on Member States to ensure remuneration for network operators in return for must carry obligations. However, where remuneration is provided, Member States will have to ensure that there is no discrimination between network operators, and that it is applied in a proportionate and transparent manner. Some form of remuneration should be provided in order for the must-carry obligation to be considered proportionate or reasonable. In any event, must-carry rules must respect Community law, including state aid rules where applicable.

4. MUST-CARRY IN SWEDEN

Who is concerned?

According to Chapter 3, Section 1 of the Swedish Freedom of Expression Act, which has constitutional status, any Swedish citizen or Swedish entity is entitled to broadcast radio and TV through an wire installation. There are hence no requirements for a permit or license in order to own or broadcast radio or TV through a cable network. For wireless broadcasting on the other hand, a permit is needed. However, Sub-paragraph 2 of the same section of the Swedish Freedom of Expression Act referred to above states that the fundamental right to freely broadcast radio or TV through a cable network does not prevent obligations to be imposed on a cable network owner or operator to include certain broadcasts in his network, if such broadcast are considered necessary to fulfil the public’s interest of all-around and versatile information (must carry obligation). The Swedish Radio and Television Act contains such must carry obligations.

According to Chapter 8, Section 1 of the Radio and Television must-carry obligations may be imposed to “everyone who owns or otherwise has at his or her disposal an installation for wire transmission where television programmes are retransmitted to the public and from which the transmissions reach more than ten households”.

Under Swedish law, must-carry obligations may be imposed on the cable operators and are applicable for both digital and analogue networks.

What is the scope of must-carry obligations?

Under the must carry rules, a cable operator must procure that the end-receivers (viewers), may receive broadcasts that are made with permission from the government. By this is meant the wireless broadcasts for which a certain broadcasting licence has been granted. No additional cost may be imposed on the receivers for the possibilities to receive such broadcast. Among these “permit” broadcasts, a maximum of three channels financed by the TV licence fee and one other channel (commercially financed), must be included. At the moment there are only two TV licence fee financed channels in Sweden, Channel 1 and TV 3 (both broadcasted by the state owned Swedish Television), and one other (commercial) channel broadcasted with permission from the government, TV4. They are hence all included in the must carry obligations imposed on cable operators.

A digitally broadcasted channel, qualifying as a must carry broadcast, must only be included in the network if the cable operator already provides other digitally broadcasted channels in the network. The digitally broadcasted channel must then only be provided in digital form, not analogue.

What are the sanctions for failure to comply with must-carry obligations?

The Broadcasting Commission has to observe that cable operators comply with the provision of the Act. Failure to comply with must-carry requirements may amount to administrative sanctions, such as fines.

5. MUST-CARRY IN THE UK

Who is concerned?

At present, under the Broadcasting Act 1990 (as amended) must-carry obligations apply to analogue services provided under pre-1991 diffusion (PDSL) licences, including cable TV licences. The Independent Television Commission ("ITC") is required to "do all that they can" to secure that every service provided by a person in any area under such a PDSL licence includes the relevant services provided for reception in that area.

As regards digital services, the ITC can at present impose similar obligations on operators of local delivery services which are delivered in digital form. The ITC must then "do all that they can" to ensure that every such digital local delivery service provided by any person in any area including the relevant services. (A local delivery service is a service for the delivery of television services to private houses by means of a telecommunications system.) However, to date the ITC has not designated any service provided by existing PDSL or local delivery services licensees to be a digital service; consequently, no UK operator is yet subject to digital must-carry obligations.

In each case, the relevant services are to be provided by means of reception and immediate retransmission. Broadcasters are in each required to provide any person providing such PDSL or local delivery services with such assistance as he may reasonably require in relation to the technical arrangements for re-transmission of such relevant services.

There are no must-carry obligations for analogue services provided under a local delivery services or cable TV licence granted since 1990.

All of the above provisions will be repealed and replaced when the Communications Bill is adopted and entered into force, probably in late 2003. This will enable the Office of Communications ("OFCOM") to impose general conditions for the provision of electronic communications networks or services, requiring that specified digital services be included in broadcasts or transmissions made by electronic communications networks, where specified conditions are satisfied.

What is the scope of the must-carry obligations?

The must-carry obligation applies in each case to the programmes included in the relevant service. The relevant services the subject of the must-carry obligations for both analogue and digital services under the Broadcasting Act 1990, are the BBC, Channel 3 and Channel 4 television broadcasting services and the BBC teletext and Channel 3 and Channel 4 teletext services, and also (as regards analogue services) S4C and (as regards digital services) Channel 5.

In each case, the ITC may exempt the licensed services in question from the requirement to carry any such relevant service, if it appears to the ITC that, in relevant area, the relevant service is not capable of being received at a level satisfying the appropriate technical standards to be determined by the ITC from time to time.

When the Communications Bill is adopted and enters into force, the relevant must-carry services will (at the outset) comprise only BBC television services and any Channel 3, Channel 4, Channel 5 and S4C services insofar as each of them respectively is provided in digital form, and the digital public teletext service.

OFCOM can only impose the must-carry obligations in respect of such services under the Communications Bill (when enacted and enforce) in respect of electronic communications networks which are used by a significant number of end users as their principal means of receiving television programmes.

Under the Communications Bill (when enacted and in force), the Secretary of State will be able to expand the list of must-carry services, but only where he or she considers it appropriate, having regard to:

  • the public benefit to be secured by adding a service to the must-carry list;
  • the extent to which the service would in any event be made available to an acceptable technical standard by means of the relevant network;
  • the capacity left available for broadcasts or transmissions by means of each such networks; and
  • the need to secure that the burden of complying with any must-carry conditions is proportionate to the objective of securing that the must-carry services are available for reception by as many members of the public in the UK as practicable.

What are sanctions for failure to comply with the must-carry obligations?

Breach of any of the must-carry obligations imposed under the Broadcasting Act 1990 constitutes a breach of the relevant licence condition. The ITC can impose a financial penalty or a reduction of the period of the licence, or, where the ITC considers it justified, revocation of the licence. (The limits of financial penalties which can be imposed are 3% of the annual qualifying revenue where such a penalty has not previously been imposed during the period of the licence, and in other cases 5% of the annual revenue).

Infringement of a relevant condition under the Communications Bill (when enacted and enforce) can result in imposition by OFCOM of a financial penalty of up to 10% of the relevant operator's annual turnover.

6. MUST-CARRY IN ITALY

There is no must carry legislation in Italy.

7. MUST CARRY IN GERMANY (NORDRHEIN-WESTPHALEN).

Broadcasting is subject to the legislative competence of the 16 German States. Therefore, no federal laws regarding must-carry rules exist in Germany. Must-carry rules are governed by the Inter-State Agreement on Broadcasting Services ("Rundfunkstaatsvertrag" or "RStV") of the 16 Länder.

This agreement distinguishes between must-carry rules for digital and for analogue cable networks.

7.1 Must-carry rules regarding digital cable networks

The Inter-State Agreement on Broadcasting Services, in its fifth amendment, came into force on 1 January 2001. This amendment introduced the regulation of must-carry rules for digital terrestrial broadcasting. These rules are imposed on the operator of cable networks. The aim of these rules is to ensure the balance between the operator’s economic interests and the constitutional requirement for protecting diversity of opinion in the media sector.

  • Pursuant to section 52 para. 3 RStV the operator must ensure that

- the necessary transmission capacity for the public broadcasters stipulated for each German State and their programme bouquets is available.
- transmission capacity is available for one channel for regional and local television stations and for the “Open Channel” (i.e., Television programmes in which citizens can broadcast their own contributions).

  • Pursuant to section 52 para. 4 no.1 RStV the allocating of one third of the total capacity for the digital transmission has to observe the following criteria:

- Interests of the connected subscriber.
- Offering a multitude of broadcasting providers.
- Offering a diverse programme of: full-covering programmes, Free-TV programmes, specialised programmes, foreign language programmes and Media services.

  • The cable operators are free to allocate the remaining capacity in accordance with the general law. (see sec. 52 para. 4 no. 2 RStV)

Pursuant to section 49 para. 1 (2nd set) no. 5 RStV, non-compliance with the above mentioned must-carry obligations constitute an administrative offence, which may trigger a fine up to 500.000 €.

In this case, the Media Agency ("Landesmedienanstalt") of the respective Land is pursuant to section 52 para. 5 RStV entitled to determine the order of priority in allocating cable channels in accordance with the respective state law.

For example the new Broadcasting Act of Northrhine-Westphalia ("Landesmediengesetz NRW"), which came into force on 31 July 2002, stipulates in Section 21 basically the same criteria for the order of priority in this case such as for the analogue cable networks (see below).

7.2 Must-carry rules regarding analogue cable networks

Section 52 para. 1 RStV stipulates that the priority in allocation analogue cable channels is governed by the law of the Länder. Accordingly, rules on allocating of programmes to scarce capacity are addressed under the different Broadcasting Acts of the 16 Länder. These Broadcasting Acts follow, regarding the must carry obligations for analogue cable networks, a similar pattern.

Taking again Northrhine-Westphalia as an example, section 18 Broadcasting Act stipulates the following system of priority:

  • Public broadcasters, local broadcasting programmes within their dissemination area and the “Open channel”.
  • If the capacity of the cable network is not sufficient to transmit all other broadcasting programmes, the Media Agency (Landesmedienanstalt) decides on the priority in allocating the cable for at most 17 channels. Pursuant to section 14 Broadcasting Act of Northrhine-Westphalia the Media Agency decides on the priority according to criteria such as e.g. the variety of the content in particular the proportion of information, education, entertainment and local influences on the programme. At least one programme has to be a Tele-shopping channel.
  • In regions close to the German border at least one programme has to be a foreign broadcaster, which also can be received terrestrially across the border by an ordinary antenna.
  • The Media Agency may determine up to two additional foreign language programmes designed for foreign citizens to be transmitted on the cable network in regions where such foreign citizens constitute a significant proportion of the population.
  • With regard to the remaining capacity, channels are allocated by the Media Agency using criteria including:

- Plurality of the programmes, special interests and opinion.
- The extent to which events and political, economic, social and cultural domain are presented and the programme contributes to the plurality of opinion.
- Contribution of the programme to the cultural and language diversity.
- Minority and target group interests.
- Proportion of own productions or productions from the German speaking or European environment.

If an operator of a cable network failures to comply with the rules of the Broadcasting Act of Northrhine-Westphalia, the fine may amount up to 500.000 € pursuant to section 125 para. 2 Broadcasting Act.

8. MUST-CARRY IN BELGIUM

Article 2 of the Belgian Constitution, as amended in 1994[1] divides Belgium into three Communities: the Flemish Community, the French Community and the German-speaking Community. Each Community has the competences as conferred to it by the Constitution.

Article 127[2] provides that the Communities have the power to impose, by decree, the rules concerning “cultural affairs”. Article 8 of the Law on institutional Reforms[3] further specifies that the latter encompass “radio and television distribution, except for the emissions of communications of the Federal Government”.

Consequently, there is no uniform Belgium law on the distribution of radio and television programmes; indeed, the matter is ruled by (i) a Flemish “Media” Decree as far as the Flemish Community is concerned, (ii) a Walloon decree for the French Community and a (iii) Federal law for the Region of the Capital of Brussels.

8.1 Must carry in the flemish community of Belgium

Who is concerned?

Must-carry obligations are governed by the Coordinated Decrees on Radio and Television of 25 January 1995 of the Flemish Government (“the Media Decree”)[4].

The obligations are thus imposed at regional level, on the entity of the cable distributor.

In order to be entitled to install and exploit a cable network, the cable distributor must be in the possession of a license granted by the Flemish Media Commission (hereinafter ‘FMC’), which indicates the territory of exploitation and is valid for 9 years[5].

Since the obligations are imposed by a decree of the Flemish Community it is primary legislation.

What is the scope of must-carry obligations?

Must-carry rules

According to article 112(1) of the Media Decree, a cable distributor is obliged to transmit , simultaneously and in their entirety:

  • all of the radio and television programmes of the Flemish public broadcaster (VRT – Vlaamse Radio en Televisie) destined for an audience located in the operational area of the cable distributor, provided that they are partly in the Dutch language;
  • all of the television programmes of authorised private broadcasters destined for the entire Flemish Community, provided that they are partly in the Dutch language;
  • the television programmes of authorised regional broadcasters, provided that they are partly in the Dutch language and take account of their broadcasting area;
  • two radio programmes and two television programmes of the French public broadcaster (RTBF) and the radio programme of the public broadcaster of the German Community; and
  • two radio programmes and the television programmes of the Dutch public broadcaster

Furthermore, article 112 (3) provides that, if it considers that the programmes of the private broadcasters recognised by her have a certain importance, and taking into account the financial and technical conditions of the use of the network, the FMC is entitled to impose on a certain cable operator the obligation to transmit these programmes or to lay down the conditions under which they must be re-transmitted. However, it should be noted that the criteria on the basis of which the FMC can impose this, are not defined by the Decree.

May-carry rules

Under Article 112 (2) of the Media Decree, aside from its “must carry” obligations, a cable operator may also carry the following programmes over its cable network:

  • the television programmes of the private broadcasters authorised by the FMC which are not covered by Article 112(1);the radio programmes of the private radio broadcasters authorised by the FMC, which comply with the requirements of the relevant authorisations;
  • the radio programmes and the television programmes of the public broadcasters of the French and German Communities which are directed towards the whole relevant Community and which are not covered by Article 112(1);
  • the television programmes of the private television broadcasters of the French and German Communities which are directed towards the whole relevant Community;
  • the pay-television programmes of these Communities provided that it has been determined by the Flemish Media Commission that the pay-television programmes of the Flemish Community are transmitted over the cable networks located in the French and German Communities;
  • the radio and television programmes of broadcasters falling under the jurisdiction of another EU Member State;
  • the radio and television programmes of broadcasters falling under the jurisdiction of a third country, provided that the Flemish Media Commission has given prior consent (the authority may also impose specific conditions in this respect);
  • a maximum of two self-generated radio programme provided that they exclusively and continuously contain music; and
  • the cable radio broadcasters which addresses the entire Flemish Community and the programmes of national, regional or local radio broadcasters, authorized by the FMC.

Article 113 recalls that, unless it has received permission of the FMC that can impose conditions to it, it is prohibited for a cable network to transmit other programmes or services through the network than those of which the transmission is allowed under this law.

However, a cable distributor is entitled to use one channel for the provision of information on the programmes and the services offered by that cable network as well as for making announcements related to any difficulties or problems that may have an impact on the functioning of the network.

What are the sanctions for failure to comply with must-carry obligations?

Under Article 111, the FMC is entitled to control at any moment whether the network and its exploitation comply with the provisions of the Decree. Moreover, new radio or television programmes are subject to a prior notification to the FMC.

The failure to meet the provisions of the said Decree may amount to[6]:

- the cessation of any infringement
- the obligation to broadcast or to publish any decision of the FMC,
- an administrative fine which may vary from 1.250 Euro to 125.000 Euro
- the suspension and/or withdrawal of the authorisation granted.

8.2 Must carry in the French community of Belgium

Who is concerned?

Must-carry rules are governed by article 22(1) of the Decree of 17 July 1987 on the audio-visual sector of the French Community[7], as amended by the Decree of 4 January 1999.

The obligations are thus imposed at regional level, on the entity of the cable distributor.

However, a cable distributor cannot exploit a radio or television distribution network without a license, granted by the Government[8], which mentions the territory of exploitation and covers a period of 9 years[9].

What is the scope of must-carry?

(i) Must carry rules

According to article 22(1) of the Media Decree, must-carry obligations are imposed on the distributor authorised to operate a cable TV network and concern:

- the television programmes of the public service broadcasting company of the French Community (RTBF);
- the television programmes of authorised local and regional television channels in their own authorised area;
- the television programmes of international organisations in which the public service broadcaster of the French Community participates;
- the television programmes of any authorised private broadcasting company whose programmes are directed towards the whole of the French Community;
- two television programmes transmitted by the television channels of the public service broadcasting company of the Flemish Community;
- one or more television programmes of the public service broadcasting company of the German-speaking Community if reciprocity
[10];
- the television programmes of authorised pay-TV broadcasters;
- the television programmes of broadcasters established in the European Union and which have concluded an agreement with the French Community on the promotion of cultural productions in the French Community or in the European Union, including a provision on direct financial contribution;
- other authorised services (thematic channels) which have concluded an agreement with the French Community on the promotion of audio-visual production in the French Community.

May Carry Rules

Article 22 (1 bis) states, that aside from its ‘must carry ‘ obligations, a cable distributor can also transmit:

- television programmes of any broadcaster established in a Member State of the European Union;
- television programmes of any broadcaster established outside the European Union, but who makes use of a satellite frequency or capacity approved by a Member State or of an earth-satellite connection that is established in a Member State of the EU.

What are the sanctions for failure to comply with must-carry obligations?

Pursuant to article 22 of the Decree of 24 July 1997 of the French Community[11], the High Authority of the Audio-visual is entitled to monitor infringements of legislation and contractual obligations as well as to impose sanctions.

Hence, the failure to comply with the Media Decree may amount to:

- the suspension of the authorisation for a maximum of 6 months;
- the withdrawal of the authorisation; and
- an administrative fine which may not be inferior to 250 EURO, nor be higher than 3% of the yearly turnover, with a maximum of 1.240.000 EURO
[12].

8.3 Must-carry obligations in the capital Brussels

Who is concerned?

Under articles 13, 16 and 19 of the Federal Law of 30 March 1995[13], concerning the cable and broadcasting activities in Brussels, as last amended on 8 July 2001, must-carry obligations are imposed on the entity of the cable distributor.

It should be noted that, as far as Brussels is concerned, the must-carry obligations are governed at national level and imposed by the Federal State.

Moreover, as they are imposed by the Federal Law of 30 March 1995 and further defined by the Ministerial Decree of 17 January 2001[14], they are imposed by both primary and secondary legislation.

What is the scope of must-carry obligations?

According to articles 13, 16, and 19 of the Federal law concerning cable distribution and broadcasting activities in Brussels, the cable operator is required to broadcast the following programmes:

- the television programmes transmitted by the television channels of public service broadcasters of the Flemish (VRT) and the French Community (the RTBF);
- the television programmes of any other broadcasting company falling within the jurisdiction of the Flemish or French Community and authorised by the competent Minister
[15],
- radio programmes broadcast on FM by public broadcasters of the Flemish and French Community.

Moreover, it is provided that the cable operator has to reserve at least 10 channels for radio programmes broadcast by non-public broadcasters and which have been designated by the federal State.

More specifically, article 1 of the Ministerial Decree of 17 January 2001 confers a “must-carry” status to the following broadcasters:

- Vlaamse Media Maatschappij NV;
- TV Brussel VZW;
- Belgian Business Television NV;
- Media ad Infinitum NV;
- Tvi SA;
- Télé Bruxelles ASBL;
- Canal+ Belgique SA;
- Satellimages SA;
- Event TV Vlaanderen;
- YTV SA.

May-Carry

Aside from its “must-carry” obligations, article 14 of the Law provides that the distributor can also transmit:

- television programmes emitted by any broadcasting company that is recognized by the French/Flemish or German-speaking Community;
- television programmes emitted by a broadcaster authorised by another Member State of the EU as far as: (a) the programmes are directed to the public of that Member State and controlled by the competent instance; (b) this instance controls the compliance with European and national law and (c) the programmes do not endanger the public order or security in Belgium;
- television programmes of any broadcaster established outside the European Union but that makes use of a satellite frequency or capacity approved by another Member State or an earth-satellite connection that is established in another Member State of the European Union.

What are the sanctions for failure to comply with must-carry obligations?

The failure to comply with must-carry rules is a criminal offence and may amount to:

- the suspension or the withdrawal of the authorisation if the cable distributor has not remedy infringement within a period of 30 days;
- a fine of between 1.000 and 100.000 Euro.

9. MUST-CARRY IN SPAIN

Who is concerned?

Under Spanish law, must-carry obligations are imposed on the cable operators and are applicable on both digital and analogue networks.

Being a cable operator is restricted in Spain as the cable operator must be a public company whose object is the provision of telecommunications services via cable in one or more areas and must possess a minimum share capital.

What is the scope of must-carry obligations?

Must-carry obligations in Spain are governed by the Cable Telecommunications Act (article 11) and the Royal Decree 2066/1996.

According to these regulations, the cable operator is required to broadcast the following programmes:

- the television programs transmitted by the two channels of the public service broadcasting company RTVE;
- the television programs transmitted by the three channels of private broadcasting companies;
- the television programs transmitted by the channels of public service broadcasting companies of the autonomous regions; and
- eventually, the television programs transmitted by local television channels, if they so request.

Moreover, Spanish law also contains a “may-carry if” as article 11(g) of the Cable Telecommunication Act provides that the cable operator has the obligation “to distribute to all subscribers connected to the network in each Municipality, the local television service of that Municipality, if its holders so request”.

What are the sanctions for failure to comply with must-carry obligations?

According to the Spanish Cable communications Act, the secretariat for communication is authorised to sanction the failure to comply with must-carry requirements (e.g revocation of the licences).

The General Telecommunication Law is presently being in the process of being amended. However, the current draft of the new General Telecommunication Law does not appear to have an impact on the current legal framework regarding Must Carry Obligations or Rules.

10. MUST-CARRY IN THE NETHERLANDS

Who is concerned?

Must carry obligations for television and radio broadcasting are imposed in the Media Act on all providers of broadcasting networks.

The definition of a ‘broadcasting network’ is not included in the Media Act, but in Article 1.1 under o) of the Telecommunications Act, which defines a broadcasting network as follows:

technical installations, or parts thereof, that are used to broadcast programmes by means of cable or radio connections between points, to one or more pieces of land, dwellings or non-residential buildings.

What is the scope of must-carry obligations?

Article 82i Media Act requires that all operators provide at least 15 television programmes andat least 25 radio programmes, including the following:

  • the (three) national public television channels and the (five) national public radio channels;
  • the regional public (radio and/or television) channel(s) in the province in which the operator is located;
  • the local public (radio and/or television) channel(s) in the municipality in which the operator is located;
  • the (two) Belgian public television channels in the Dutch language;
  • two Belgian public radio channels in the Dutch language;

This package of 15 television programmes and 25 radio programmes is usually referred to as the statutory basic package. The statutory basic package constitutes about 50% of the total (analogue) supply of television channels by the average cable operator.

At the moment, a proposed amendment to the Media Act is pending in Parliament, in which the government suggests to amend the statutory basic package for television programmes. After amendment, the must-carry obligation in Art. 82i Media Act relates not only to the main programmes of national, regional and local public channels but also to (a maximum of two) so-called secondary programmes broadcasted by the local public channel, provided that such secondary programme contains at least 50% informative, cultural or educational content aimed at the municipality concerned.

In the Media Act, only 7 of the 15 channels which must be carried by the operator of a broadcasting network are defined. For the choice of the other 8 must-carry channels, Article 82k Media Act provides for the institution of so-called ‘programme councils’ by each municipality.

The programme councils render advice to the operators of the broadcasting networks in the respective municipality on the composition of the statutory basic package for the next broadcasting season (September – August). Programme councils are required to compose a multiform basic package, taking into account the social, cultural, religious and spiritual needs of their municipality. This means that the programme council advises the network provider which 8 channels should be included in the statutory basic package together with the 7 channels defined in the Media Act. The network provider can only deviate from the programme council’s advice for important reasons. According to the legal history of Article 82k, such important reasons may be inter alia:

  • violation of statutory rules;
  • endangering the financial-economical exploitation of the network;
  • an insufficiently multiform composition of the basic package;
  • the advice contains too many expensive channels.

If there is an argument between a programme council and a network provider with respect to the composition of the statutory basic package, the programme council concerned or the broadcaster of the programme of which carriage has been refused by the operator in deviation of the programme council’s advice, may request the Media Authority (Commissariaat voor de Media) to enforce Article 82k Media Act.

What are the sanctions for failure to comply with must-carry obligations?

On the basis of Article 135 Media Act, the Media Authority can order the network provider to comply with the advice of the programme council and impose an administrative fine of maximum NLG 50,000 (€ 22,500) on the network provider.

Footnotes

Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.


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