Will the issue of must carry become an anomaly in the digital broadcasting era? Some believe it will. After all, once scarcity is no longer an issue for cable operators and with competing networks in place, it seems highly unlikely that a network will refuse transmission or retransmission of broadcasting channels that can only increase the attractiveness of its package. Therefore, must carry obligations ensuring access of certain (primarily public) broadcasting channels to transmission networks are no longer needed. Commercial negotiation, it is argued, can do the job.

This idea is present in European Commission circles. The wording of article 31 of the Universal Service Directive (�reasonable obligations�, �necessary to meet clearly defined general interest objectives�, �proportionate�, �subject to periodical review�), suggests that the intention was to limit must carry obligations, even to let them gradually �die out�, rather than to support their maintenance.

Consequently, it might have come as an unpleasant surprise to the Commission that some Member States � where must carry obligations didn�t exist before � actually seized the opportunity of the implementation of the 2002 regulatory package to introduce must carry rules. (For the UK approach see Ofcom�s proposals setting must carry obligations for terrestrial transmission). Moreover, article 31 also failed in achieving the harmonization it pursued. The comparison of the must carry regimes in the various Member States demonstrates that large differences still exist when it comes to the number and nature of must carry channels, the kinds of networks subject to must carry obligations and the financial conditions for must carry (in terms of transport fees as well as copyright arrangements).

Defenders of the must carry rules point to the fact that in Europe, the view is still widely upheld that governments should ensure the universal coverage of general interest contents (and isn�t indeed the current debate on PSB showing that Member States are very reluctant � if not fully opposed � to abandon the idea of publicly supported contents?). For them, must carry obligations seem like a logic and necessary measure in the transmission layer to achieve public policy goals set at the content level . In other words, in the digital age must carry obligations could be seen as part of a larger concept of “universal service obligations with regard to content”.

This idea is not without controversy and many are fundamentally opposed to the very notion of must carry, which they perceive as an illegitimate and highly intrusive intervention on market freedom all the more unnecessary in a multi-platform digital environment. It is also argued that must carry obligations should be countered with �must offer� obligations on the side of the content providers. All in all it seems that, for better or worse, must carry will remain an important topic in the coming years.

These and other exciting issues with regard to must carry (including a comparison with the US regime) were raised during a workshop that we attended last Saturday in Amsterdam and that was jointly organized by the Institute for Information Law (IViR) and the European Audiovisual Observatory. The proceedings of this workshop will be published in a forthcoming issue of the EAO publication IRIS. Don�t miss it�!

Monica & Peggy