Regulations on mandatory transmission, i.e., must carry, were first introduced through the European legislation with the emergence of cable distribution systems for fear of the cable network operators not wanting to distribute programs of the public media service. Accordingly, the first must carry regulations related only to the programs of the public media service and the operators of cable distribution systems.
In accordance with article 106, paragraph 1 of the Law on Electronic Media (hereinafter: ZEM), the Regulatory Authority of Electronic Media (hereinafter: Regulator) will periodically, and no less than once every three years, at the republic, provincial, i.e., narrower geographic relevant market level within the meaning of the regulations governing the protection of competition, determine a list of radio and television programs which the operators whose electronic communication network for the distribution and broadcast od media content is used by a significant number of end users as sole or primary means for receiving media content are obligated to transmit, for the purpose of realizing public interest and the protection of media pluralism.
For the proper implementation of this legal regulation, it is necessary to give answer to the following questions: what type of media service providers can be found on the list of the Regulator; for which areas is must carry determined; which electronic communication network operators is must carry applied to; which requirements must be fulfilled for the program to find itself on the list; who bears the expenses of must carry.
According to article 44 of ZEM, media service is provided by: a) a public service media institution; b) a commercial media service provider; v) a civil sector media service provider.
Additionally, a distinction can be made between media service providers which are under domestic jurisdiction and foreign media service providers whose programs are retransmitted on our territory in accordance with international documents.
We’ve mentioned already that the must carry regulation was created to ensure the distribution of public media service programs. However, the provision of article 106 of ZEM does not apply to the programs of the public media service, i.e., these programs will not be found on the list determined by the Regulator, for the simple reason that mandatory transmission of those programs has already been prescribed by law and applies to all platforms. The Law on Public Service Broadcasting, in that sense, prescribes must carry for the programs of the public media service by means of digital terrestrial transmission (article 15 paragraph 3), while ZEM provides that the operators of all other media content distribution networks are obligated to distribute basic programs of the public media service with no additional fee, and the programs classified as new media services only if the Regulator determines that this is necessary for the realization of the public interest (article 100, paragraphs 10 and 11).
Having the above in mind, we can conclude that the provision of article 106 of ZEM refers to the programs of commercial media service providers, as well as the programmes of civil sector media service providers.
We also feel that there are no obstacles for foreign programs to be found on the Regulator’s list along with the programs of domestic media service providers, following the fulfilment of legal requirements in such cases. That is, there could be an instance where the distribution of a specific foreign program would be of public interest in the Republic of Serbia. For example, for the purpose of information of national minority citizens in the Republic of Serbia in their native language, especially in the cross-border regions, the must carry regulation could be set for a foreign program produced in the language of that national minority.
Article 106 of ZEM prescribes that the list of radio or television programs be determined for the republic, provincial, i.e., narrower geographic market in the sense of the regulations governing the protection of competition.
The relevant geographic market represents the territory where the market participants participate in the offer or demand and with same or similar competition requirements which differ substantially from the competition requirements in neighbouring territories. In applying this criterium, we can divide the media service market into the republic, provincial, regional, and local market, considering that there are significant differences between these markets regarding the requirements for the provision of media services in question (the offer of program contents, means of financing, advertising market, obligations related to program production, public expectations, etc.).
Accordingly, the Regulator would need to determine, for each of those regions separately (republic, provincial, regional, local), a list of programs to be part of must carry, pending the fulfilment of legal requirements.
Article 106 of ZEM imposes the must carry regulation on operators whose electronic communication network for distribution and broadcast of media content is used by a significant number of end users as sole or primary means of receiving media content. The same rule is prescribed by article 101 of the Law on Electronic Communications.
Hence, the focus is not on a “specific type of platform” but on a platform which serves a significant number of users as a predominant method of reception. We could, therefore say, that for this issue the principle of “technological neutrality” has been accepted.
However, we have to keep in mind that the Regulator has the deciding role in our legal system in the choice of program in a multiplex, considering that the license for providing media services through terrestrial transmission can be acquired only through a public competition. Considering that the Regulator is already taking care of the public interest and the protection of media pluralism through the policy of issuing licenses in a public competition, there is no need for the implementation of the rule of must carry by means of terrestrial transmission. That is, should the they determine that it is necessary to distribute a specific type of program content in a specific region by means of terrestrial transmission for the protection of public interest or media pluralism, the Regulator will advertise a public competition for that region and issue a license to the media service provider whose program fulfils the specified requirements. The network operator for the terrestrial distribution of media content (ETV) is obligated to transmit the programs of all media service providers which the Regulator has issued the licence to through a public competition.
Therefore, the must carry regulation, by nature, applies only to those platforms where the Regulator has no control over the choice of program content, which are the cable, satellite, and IPTV distribution systems. In the case of terrestrial transmission, the must carry rule might be applied only in the instance where a foreign program would find its way on to the Regulator’s list, which are freely retransmitted on our territory in accordance with the current regulations. In fact, only a fraction of European countries have prescribed the rule of must carry for operators of terrestrial platforms, and those are mainly countries where licenses for the provision of media services by means of terrestrial transmission are not issued in a public competition, and instead the operators are left with the freedom of choice regarding the programs they will distribute through their network.
As for the fulfilment of requirement that the network for the distribution of media content be watched by a significant number of end users as sole or primary means of media content reception, that will be determined by the Regulatory Agency for Electronic Communications and Postal Services upon the submission of the request for determining the obligation of transmission by the Regulator, along with a list of programs which the rule of must carry is related to.
In the European country majority, must carry exists exclusively as a means of securing the distribution of programs of the public media service. The goal of that obligation in Serbia has been set more broadly, with the realization of public interest and protection of media pluralism occur set as the reasons for its imposition.
The definition of public interest in the public information is prescribed by the Law on Public Information and Media (article 15). In accordance with the specified provision, the Regulator will, in setting the list, ensure that the programs competing for their place on the list fulfil one or more of the defined interests (timely informing of all citizens, program in the language of national minorities, program adapted to the needs of persons with disabilities).
As for the second requirement, the broadcast of a specific program will contribute to the protection of media pluralism if the content of that program contributes significantly to the existence of diversity of opinion in the observed area, especially in relation to the rest of the offer on the given territory.
Save for the distribution of programs of the public media service, the question of expenses in connection with must carry is not regulated by law.
The operators are obligated to distribute all media services in a fair, transparent, and non-discriminatory manner.
The operator’s practice of treating those programs with high ratings (which the program package would not be appealing to the customers without) and programs which nave no attractive content differently, i.e., of paying some of them more while charging the others for the distribution of their content, does not mean that operators are being discriminatory towards media service providers.
Specifically, discrimination means making distinction between subjects that are equal, i.e., those that are in the same position. As programs with high and low ratings are not found in the same position on the market, one cannot say that unpopular programs are being discriminated because their distribution is being charged a fee.
The question of who needs to pay who complicates furthermore with the implementation of must carry, due to the occurrence of competition violation on the market, considering that the specified rules, even though they are guided by justified objectives, by nature limit the freedom of service provision.
In any case it would be unfair to impose a payment obligation on the operator for content which they are obligated to distribute through the system against their will. Equally, in countries where there is the rule of mandatory offer, i.e., must offer, it would be unfair for the provider of media service to pay a fee for the transmission of program which they are obligated to offer to the public.
Therefore, we feel that the media service provider should not require a fee from the operator who is obligated to distribute the provider’s program content through their distribution network as a result of the implementation of must carry regulation. Also, we feel that the operator should not request a fee from the media service provider in that same situation, considering that only those programs whose transmission is of public interest and whose presence in the offer contribute towards media pluralism will be found in the Regulator’s list.
The Regulator is obligated to respect the principles of proportionality and publicity in the process of determination of the list and to ensure that the obligations prescribed for the operator not be unreasonable (article 106 paragraph 2 of ZEM).
As we have already mentioned, in the process of compiling the list, the Regulator will take consideration of the fact that imposing a must carry regulation represents an act of violation of market competition, as well as certain freedom limitations for operators, for which reason the list should not be overly extensive, but rather include only those programs whose presence in the offer undoubtedly contributes to the realization of public interest and the existence of media pluralism.
Also, the public should be included in the determination process thereof in some way, either through a public deliberation, or though informal consultations with all interested parties, and especially with the subjects which are primarily obligated to implement the must carry regulation.
At the end, we would like to criticize the existing legal solution.
Namely, as we have already stated, in accordance with article 106 of ZEM, must carry can be imposed only on an operator whose electronic communication network for the distribution and broadcast of media content is used by a significant number of end users as sole or primary means of receiving media content. The same rule is prescribed by article 101 of the Law on electronic communications (that provision is taken from the Universal Service Directive).
However, it is unclear when this requirement would be fulfilled. Namely, in a situation where a minimum of 95% of the territory is covered by a digital terrestrial signal, it is hard to imagine that there is an area where one operator (cable, satellite, or IPTV network) would represent sole or primary means for receiving media content.
There is also the question of whether it is even necessary to prescribe must carry for programs from commercial media service providers. As we have already stated, in the European country majority must carry exists exclusively as a guarantee for the distribution of public media service programs, since those programs are what is closest to the defined public interest in the area of public information.
Having in mind that here there is already a legal must carry regulation in place for the programs of public media services and that it applies to all content distribution platforms, we feel that there is no additional need to introduce programs from commercial media service providers to the regime of obligatory transmission, particularly since the implementation of the must carry regulation leads to the violation of market competition, as these rules represent a limitation of the freedom of service provision.
