Must Carry and EPG Regulation in the Spotlight

The European Commission has asked the European Court of Justice to impose a fine on Belgium because it has failed to correctly implement EU telecom rules when awarding ´must-carry´status to broadcast content. ¨Must-carry¨ rules spring principally from Article 31 of the EU’s Universal Service Directive. They are intended to ensure that consumers have access to the most important public access content via networks that a significant number of consumers rely upon as their principal means of reception. In Europe, therefore, ´must-carry´ legislation is designed to ensure that sufficient broadcasting space is set aside for broadcast content of a general interest, eg, the public service channels. In the case of Belgium, an earlier decision by the Court of Justice was made in March 2011. Now, the Commission has suggested a lump sum penalty calculated on the basis of €5397/day for the period between the first and eventual second Court ruling and a daily penalty payment of €31 251.20 for each day after the second Court ruling until Belgium complies with the judgment.
Analysing the shifting situation across the whole of Europe, the European Audiovisual Observatory has recently published a new report, ¨Must-Carry: Renaissance or Reformation? 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 authors of the main article, Nico van Eijk and Bart van der Sloot of Amsterdam’s Institute for Information Law (IViR) explain that 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”. They address in detail two important court cases, the Belgian one mentioned above and another German case, as examples 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.

According to the Universal Service Directive, must-carry regulation is “technology neutral” in that it may apply to cable, satellite, terrestrial networks and also IPTV, so it should be interesting to see how Member States move this concept forward in the context of scope decisions relating to implementation of the Audiovisual Media Services Directive (AVMS), particularly in the context of IPTV and internet-delivery of content.

Updates on the Regulation of Electronic Programme Guides

Also included in the same European Audiovisual Observatory report is an update on the regulatory landscape and the latest legal developments related to the regulation of Electronic Programme Guides (EPGs). The regulation of EPGs principally addresses the issue of how ´prominence´ is allocated to channels and content in terms of both listings and presentation.

Bart van der Sloot of the IViR explains that EPG regulation treads a fine line between the laws that pertain to 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. Another view of this topic, from a US perspective, is provided by Jonathan Perl of the New York Law School, who explains the background and deduces that broadcasters will continue to argue that must-carry legislation in the US remains necessary and should even be reinforced. US cable operators on the other hand argue that 20 years of must carry have not sufficed to produce localism.

Bart van der Sloot concludes by raising the question as to whether future legislation will cover internet based EPGs such as smartphone apps or social network sites. Indeed with shifting content navigation paradigms, away from ´grid format´ listings, and looking at how personalisation and recommendation services are evolving in the context of new ´content discovery´ services, it is difficult to see how the issue of ´prominence´can be sustained except for those delivery networks which are indeed the most heavily relied upon by the public.  It is also clear that the debate will continue as the interests of audiences and market players, as well as technology and market parameters continue to evolve.