Council’s Standpoint on the ‘must carry’/ ‘must offer’ rule

25.09.2013
Following the Council’s standpoint of 30th July 2013, IP TV operators shall be included in the group of entities authorised to exercise the rights stated in Art. 43 Section 1 of the Broadcasting Act.

The analysis of legal regulations in other EU countries has shown that many countries have acknowledged that the ‘must carry’/ ‘must offer’ rule should be applied also with respect to IP TV operators.

Following various media releases on the Council’s Standpoint of 30th July 2013 “on the interpretation of Art. 43 Section 1 of the Broadcasting Act, the Council wishes to explain that the Council’s Standpoint of 30th July 2013 has resolved any and all doubts as regards the IP TV operators and their access to the ‘must carry’/ ‘must offer’ programmes.

Art. 43. Section 1. of the Broadcasting Act obligates the retransmitting operator to comply with the ‘must carry’/ ‘must offer’ rule i.e. to retransmit TVP1, TVP2, the regional programme transmitted by TVP S.A., POLSAT, TVN, TV4, TV PULS. The retransmission duty with respect to regional television programme services applies to the regional television programme service relevant for the specific area.

Pursuant to Art. 43 Section 2 of the Broadcasting Act, a broadcaster who is in charge of transmission of the programme provided in Art. 43 Section 1, may neither refuse its consent to any operator retransmitting the programme via a telecommunication network to retransmit that programme nor make its consent dependent upon paying any fee, including in particular a fee for granting licence to use the transmitted content.

The broadcaster’s obligation to provide access to the programme will be evaluated by the Council in the light of the rule ‘nemo plus iuris ad alium transferre potest quam ipse habet’ (i.e. no one may transfer more rights onto another person than he himself is holding).

In order to clear any doubts concerning the obligation of retransmitting the programmes referred to in Art. 43. Section 1 of the Broadcasting Act of 29th December 1992, and with regard to the practice of the operators offering packages with differentiated programme content and therefore representing different price levels, on 17 November 2011 the National Broadcasting Council adopted a Standpoint saying that programmes subject to the ‘must carry’/ ‘must offer’ rule should be available within each package offered by the operator.

The Broadcasting Act does not refer to any obligation to offer any services free of charge – including free carrying of the programmes provided in Art. 43. Section 1 of the Act. Neither does it require that all programmes transmitted by digital terrestrial broadcasting should be included in the offer.

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