Rethinking Must-Carry and Retransmission Consent Regulation in the Digital Era

• Main Author: Clara Luz Alvarez
• Format: Article
• Language: English
• Published: Universidade de Brasília 2020-03-01
• Series: Revista de Direito, Estado e Telecomunicações
• Subjects: must-carry; must-offer; broadcasting; pay-tv; competition
• Online Access: https://periodicos.unb.br/index.php/RDET/article/view/24914/25491
• ISSN: 1984-9729; 1984-8161

Purpose – The emergence of new technological platforms to access online services and content have transformed the media landscape dramatically. Such transformation requires policymakers to reexamine the decades-old regulations traditionally addressed to broadcasters and telecommunications providers as 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 such rules (competition, local content, viewers´ rights, diversity). The purpose of this review is to analyze whether or not the original reasons for must-carry regulation are still valid in the digital era. Methodology/approach/design – The research was conducted through document review and analysis of norms and case law from each one of the selected countries (USA, Mexico, and France) based on information collected via academic research. Also, analysis of statistical sources of information was attained to portray the penetration status of telecommunication services over the last decades in order to fully understand the context in which must-carry rules were enacted. Findings – Policymakers should consider other regulatory mechanisms to achieve the original reasons for must-carry rules. The dramatic increase in the variety of devices (e.g., TV, tablet, mobile phones, smart TVs), service and content distributors (e.g., free-to-air TV, cable TV, internet), and service providers (e.g., broadcasters and over-the-top internet providers) strongly suggests a reconsideration of the current approach. Yet any amendment to the current regulation will depend on internet penetration and access to new video distribution platforms in a given geographic area. That is to say, without internet access, free-to-air TV might continue to be an important platform for service and content distribution. Practical implications – Identifying and analyzing the reasons for imposing must-carry rules in connection with the telecommunication services penetration over the past decades, provides the necessary framework to assess the convenience and need 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 – This research is original insofar as it analyses must-carry rules and case law of three different countries with their own background and objectives. Must-carry rules are being enacted in several countries including in those in Latin America. This paper is useful for both policymakers and researchers to provoke an in-depth analysis as to whether must-carry rules should be enacted, amended or eliminated, based on the specific context and objectives pursued in a given country.