Cable Television Union of Georgia studied the European practice with regard to Must Carry principles. The Union surveyed the cooperation between the broadcasters and cable operators on transmitting the signals and commercial conditions of the service in EU countries. The Union contacted its partners in Latvia, Lithuania, Poland and petitioned to one of the most authoritative organizations in Europe, the Cable Europe. The necessity of studying the EU practice was caused by the current situation in Georgia. As it was already reported, six Georgian TV-Channels – Rustavi 2, Imedi, Maestro, GDS, Marao and Comedy Channel, on behalf of the Ltd Media Rights Georgia, requested remuneration from the cable operators in exchange of transmitting their signals. 3 out of those channels – Rustavi 2, Imedi and Maestro are national broadcasters, which enjoy the right under the Must Carry principle. The cable operators do not agree with the requirement of the TV-Companies and believe the national broadcaster, which is available for the Georgian population free of charge, shall not become paid for the cable operators. For that reasons, we decided to study the experience of other countries, which we share with Georgian operators and all interested parties.

In the European Union (EU), must-carry is regulated under article 31 of the March 7, 2002 Universal Service Directive # 2002/22/EC on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), which regulates main principles with regard to Must Carry conditions.  Article 31 of the Directive directly refers to the Must Carry and obliges the states to regulate the issue related with Must Carry on the national level. “EU Member States can impose reasonable must-carry obligations on electronic communications networks for the transmission of specified television (and radio) channels, particularly to ensure access of disabled subscribers to the organizations under their jurisdiction, which ensure access to radio and TV broadcasters, considering that a significant number of end- users use such networks as the principal means to receive such broadcasts. Must-carry obligations must be necessary to meet clearly defined general interest objectives as well as be proportionate and transparent.”

Must Carry was introduced in Georgian legislation, when there were deadlocked situation in the telecommunications market. Televisions forbade one of the biggest cable operators to transmit their signal, while some of the operators used to switch off signals of concrete TV-channels. To address this problem, in 2012, the notions of Must Carry and Must Offer were introduced.

In accordance to the Article 31 Part 2 of the Universal Service Directive: “Part I of the Article 31 and Article 3(2) of the №2002/19/ЕС allows the EU Member States to determine appropriate remuneration, if any. If doing so, Member States must ensure that there is no discrimination in the treatment of providers of electronic communications networks and that remuneration is applied in a proportionate and transparent manner.”

According to the individual interpretation of the member states, the cable operators can request the remuneration/compensation from the broadcasters in exchange of their obligation to air their signals, which are already regulated under the Must Carry principle based on the national legislation. If not the law requirement, an operator may not decide to insert any concrete broadcaster in its package. Considering the restricted business interests of the operator, the EU member state is authorized to determine the rule of remuneration for the cable operator. In accordance to the Law of Georgia on Broadcasting, we received completely different understanding of the Must Carry principle, which allowed the broadcasters to claim remuneration that, according to our evaluation, does not meet the European standards.

The Directive regulates such important issues like the principle of technological neutrality. The EU Directive reads: “Care should be taken in any change of the scope of universal service obligations to ensure that certain technological choices are not artificially promoted above others, that a disproportionate financial burden is not imposed on sector undertakings (thereby endangering market developments and innovation) and that any financing burden does not fall unfairly on consumers with lower incomes.”

For more clarity, we will clarify the meaning of the principle. If distribution of any TV-Channel becomes paid for the cable operators in Georgia, only one option will be left, that is open multiplex platform, which transmits the TV-Channels for the population for free. Similar case will necessarily cause technological discrimination of already performing cable operators, because naturally the subscriber will choose the free providers that promote development of concrete technology. It is noteworthy to mention that multiplex platform operator will become authorized on the transit of broadcasting and it offers paid service together with free channels. It creates risk to establish monopolist and discriminative environment in the market.

Georgian legislation also recognizes the principle of technological neutrality. In accordance to the Law of Georgia on Electronic Communications, the technical neutrality is defined as follows: “The principle, according to which, when making the regulation decisions, preference is granted to the way of provided the end-user with the electronic communication service rather than the technologies used for providing the service.” In accordance to the same law, in the field of electronic telecommunications, the activities are carried out in accordance to those main principles of the state policy, as: “inadmissibility of monopoly in the activities of electronic communication networks and liberalization of the service market; development of free industry and competition; inadmissibility to grant exclusive authorities to authorized persons and to sign exclusive contracts with regard to electronic communication network activities; maximum publicity, objectivity, non-discriminatory approach, transparency and technological neutrality of the commission when making the regulatory decisions.” Considering the above-listed commitments, it is inadmissible to differentiate the authorized persons depending on the technologies they use to provide the end-users with the signal even if the service equal.

Currently operating broadcasters have sent out request letters on paid transit to all authorized persons except multiplex operator.

Based on our petition, Cable Europe notified us in their letter that majority of cable operators in EU member states do not pay for the transmission of the TV-channels regulated under the Must Carry principle. Nowadays, the acting Universal Service Director and in particular the Article 31 of the Directive, are being revised. The Cable Europe is asking the EU legislators for clarity on the issue of remuneration. According to the Cable Europe, ideally, the revised rules should lay out an obligation for broadcasters to pay adequate remuneration for the transport.”

The Cable Television Union of Georgia studied the national legislative regulations of EU member states.

Must Carry and Must Offer regulations operate in Poland too. The operators do not pay the broadcasters for the transmission of their programs. In accordance to the Article 43.1 of the Law of Poland on Broadcasting, the operator is authorized to re-transmit the programs of the TV-Channels, specified under the law. Apart to that, the broadcasters are authorized to allow the operator to air their programs for free. Directive №2002/19/ЕС is being implemented in Poland and they clarify the Article 31 of the Directive in the following way – that the EU member states are allowed to impose remuneration on the broadcasters for the re-transmission of the programs regulated under Must Carry, though it is not done in practice. As for the broadcasters, they are not allowed to claim remuneration from the cable operators.

The process in Latvia is regulated by the Law on Electronic Mass Media. In accordance to the Article 19.6 of the Law, “The relevant electronic mass media shall not collect a fee for the provision of retransmission of the television programmes from such electronic mass medium the programmes of which it is re-transmitting, as well as the electronic mass medium, the programmes of which are being re-transmitted shall not collect a fee from the electronic mass medium which is re-transmitting its programmes.” Nowadays, there are two programs of the public broadcaster operating in Latvia.

Article 6¹ of the same article:”The electronic mass media which re-transmits television programmes utilising cable television shall ensure the supply of television programmes of the public electronic mass media distributed in Latvia to all subscribers of the relevant cable television in unchanged form, as well as the supply of such television programmes of the national electronic mass media to all subscribers of the relevant cable television in unchanged form which are available for an end-user via terrestrial broadcasting technical means free of charge. A retransmission permit shall not be necessary for the distribution of such programmes in the relevant public electronic communications networks.”There are 3 similar programs of the commercial TV-channel and 2 local programs in the public electronic mass media network in Latvia. Field representatives in Latvia believe Must Carry rights shall be granted only to those programs, which are free for subscribers, otherwise it means to sell the product to the end-users, which they were not going to buy.

Similar regulations operate in Lithuania too. The broadcasters’ signals, which operate under the Must Carry, are free for cable operators.

In Georgia, the Must Carry conditions are regulated under the Article 40¹ of the Law of Georgia on Broadcasting. The Cable Television Union of Georgia has already petitioned to the Parliament of Georgia to introduce relevant changes in the law. We hope, the Georgian legislation will become coherent with the EU legislation and competitive and non-discriminatory environment will be guaranteed in the Georgian telecommunications and media market.

Cable Television Union of Georgia continues defence of the interests of the companies authorized on the transit of broadcasting.