“It’s possible that the business has changed, as suggested by the private channels, and that the measure of ‘must-carry’ needs to be assessed in this new context. However, the National Television Authority of Colombia should not depart from its legal mandate in order to make that modification.”
Carlos Cortés*/ Colombia, october 2014
After a prolonged wait, the National Television Authority of Colombia (ANTV) took a decision on the inclusion of free-view channels in television subscription services. However, this decision did not resolve the situation: using convoluted language and raising new questions, and where it had offered some level of clarity, it chose to reinterpret a law that in one way or another has been applied since 2001.
But let’s start with an overview: ever since the private free-to-air broadcasting channels (RCN and Caracol) began to operate more than ten years ago, subscription television operators have included their signals in their program schedules without providing any compensation. They have done so under the obligation of ‘must-carry’ in accordance with Law 680 issued in 2001 This legislation, as its name suggests, provides that pay-TV should include private and public free-to-air TV in order to ensure greater choice and greater dissemination of national content.
However, in April 2014 RCN and Caracol demanded a monthly payment from the pay-to-view companies (based on their number of subscribers) for their high-definition signal. RCN requested 40 cents per subscriber, and Caracol approximately 30 cents. With almost 4.7 million subscribers, this would add up to US$3.3 million per month.
The pay-to-view firms refused, which led to the HD signal being withdrawn from their services. It was reestablished during the World Cup, but once Germany lifted the trophy, it was again withdrawn from the subscription channels, and the companies also threatened to remove their standard signal (for a more detailed explanation of this issue see www.tvabiertaparatodos.com).
On 22 September, ANTV published Resolution 2291 which, in theory at least, resolved the situation. First, it ordered pay-TV operators to distribute open broadcasting channel signals, and at no extra cost to subscribers. Secondly, it stated that this obligation should be conducted “with the contents of the main digital channel in the format chosen by the free-to-air operators” (i.e. RCN and Caracol) «in accordance with the technology of each user of pay-TV.” And thirdly, it stated that the free-to-air channels, in accordance with the reimbursement of economic rights, «could not reverse the prior and express consent they had given to pay-TV operators» to transmit their signals.
Let’s try to understand the decisions taken by ANTV. The first seems clear: the ‘must-carry’ obligation remains. According to Article 11 of Law 680 of 2001, “subscription television operators must ensure, and at no cost to subscribers, the reception of free-view Colombian broadcast television of a national regional and municipal nature.” In 2003, the Constitutional Court reviewed this regulation and stated that it was in accordance with the country’s Constitution. This particular measure is of general interest to secure media pluralism and is not disproportionate to any of the affected parties. In the case of subscription TV operators, they do not have to purchase a signal, but simply retransmit it. It would appear that in principle, this is the interpretation adopted by ANTV.
The following points, however, not only contradict said regulation, they are also quite ambiguous. On the one hand, ANTV decided that the ‘must-carry’ obligation would be met with the main channel of RCN and Caracol in the format that they choose. Where did that come from? From a regulation that ANTV must have stumbled upon and which bears no relation to ‘must-carry.’ According to Agreement 002 of 2012 of the National Television Commission (a body that preceded ANTV), free-view private TV channels, along with multiplex operators, can transmit their signals in the configuration that they consider pertinent. RCN and Caracol, for example, transmit their main signal in HD. This standard does not have any bearing on the ‘must-carry’ regulation, which makes no distinction of either format or technology. ANTV simply introduces this rule, incidentally providing the free-view channels with the power to decide which signal should be used.
Even more confusingly, the decision on the format must be “in accordance with” the technology that each user of pay-TV has at their disposal. Does that mean that if I have an HD service with Directv, RCN or Caracol can oblige that company to provide me the signal in HD, regardless of the service I may have contracted? Does it mean that these private channels can make exclusive agreements with one or other operator to authorize the transmission of their signal in HD?
The issue becomes even more convoluted with the third point. ANTV did not expressly state, as it should have done, that the transmission of the signal does not generate an economic recompense, which is the central point of this entire debate. Instead, it indicated, and almost in code, that free-view channels can not refuse to authorize the transmission of the signal on the pretext of economic rights. So they can not charge? Or they can charge, but without suspending authorization?
Subjecting the ‘must-carry’ regulation to the power of free-view channels and to exclusive charges and agreements is equivalent to its derogation. And this is what RCN and Caracol wish for today, even if they never would have taken such a stance in the late nineties and early part of the new millennium. That subscription services included their signal at that period was critical for these firms in order to build their huge audience base and obtain high revenue. And in the case of national and regional public channels, this has been the best platform to ensure dissemination, which would have been denied them if they had been subject to commercial criteria. For the general public, 81% of whom watch pay-TV, and for whom digital terrestrial television is accessible only in some cities, ‘must-carry’ has been a policy that favors access to a wide range of content.
Of course it’s possible that the business has changed, as posed by the private channels. Perhaps TV regulation needs to be updated, and the measure of ‘must-carry’ needs to be assessed within this new context (I personally believe it should be maintained). But it is not for ANTV to distance itself from its legal mandate in order to make such an alteration. And much less acceptable have been the coercive tactics used by RCN and Caracol, which since the beginning of this conflict have been failing in terms of their legal obligations. If there is any place where this discussion should be held, it is in the Congress, and in full transparency before civil society. Television is a business, of course, but is also a public service and a development of freedom of expression.
* Researcher at the Freedom of Expression and Access to Information Studies Centre (CELE) at the University of Palermo; adviser on media and technology regulation.