-1 he representation must be submitted to the Authority by no later than 06 March 2020 by post, hand delivery or electronically (in Microsoft Word) and marked specifically for attention: Mamedupe Kgatshe. Delivery address: 350 Witch -Hazel Avenue, Eco Point Office Park, Eco Park, Centurion, (Ground Floor at Block B). Where possible, written representations should also be e- mailed to and . Enquiries should be Interested persons are hereby invited to submit their written representations on the Discussion Document, which will also be made available on the Authority's website at http: / /www.icasa.org.za and in the Authority's Library at 350 Witch -Hazel Avenue, Eco Point Office Park, Eco Park, Centurion, (Ground Floor at Block B), between 09h00 and 16h00, Monday to Friday. In terms of Section 4B of the Independent Communications Authority of South Africa Act (Act No 13 of 2000), the Authority hereby conducts an Inquiry regarding the effectiveness of the Must Carry Regulations, 2008 ( "the Regulations ") and whether there is a need to amend them. This gazette is also available free online at www.gpwonline.co.za 210 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA NOTICE 650 OF 2019 650 Independent Communications Authority of South Africa (13/2000): Review of the ICASA Must Carry Regulations, 2008: Discussion document: Invitation for written representations 42902 N At the request of any person who submits written representations pursuant to this notice, the Authority may determine that such representations or any portion thereof is to be treated as confidential in terms of section 4D of the ICASA Act. Where the request for confidentiality is refused, the person who made the request will be given an opportunity to withdraw such representations. Persons requesting confidentiality are urged to acquaint themselves with the Guidelines for Confidentiality Request publishes in Government Gazette No. 41839 (Notice No. 849) of 17 August 2018. DR KEABETSWE MODIMOENG ACTING CHAIRPERSON DATE: " D'e'"`μ19f.7-919 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 211 W N N N N N N O, in 4 W N 1-, 1-1 D a ,' 1-1 --s CD 01 D a D C V) 1-1- -1 11, ñ' -P 4 W w w -P N l0 .1 N I tD tri ui -rs l .I This gazette is also available free online at www.gpwonline.co.za 212 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 The Independent Communications Authority of South Africa (hereinafter referred to as " ICASA" or "the Authority ") derives its mandate to regulate the South African broadcasting sector from the Constitution of the Republic of South Africa, 19961 ( "the Constitution "), the Independent Communications Authority of South Africa Act, 2002 (Act No. 13 of 2000)2, as amended ( "the ICASA Act "), the Electronic Communications Act, 2005 (Act No. 36 of 2005)3, as amended ( "the ECA ") and the Broadcasting Act, 1999 (Act No 4. of 1999)4, as amended ( "the Broadcasting Act "). In line with the provisions of section 4B(1) (a) to (e) of the ICASA Act, the Authority is undertaking an inquiry regarding the review of the ICASA Must Carry Regulations, 20085 ( "the Regulations "). 1 See section 192 of the Constitution which states that national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society. 2 See section 2 (a) of the ICASA Act which states that the object of the ICASA Act is to establish an independent authority which is to regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society, as required by section 192 of the Constitution. 3 See section 2 of the ECA. 4 See section 2 of the Broadcasting Act. 5 ICASA, 2008, Must Carry Regulations published in Government Gazette no.31500 of 10 October 2008 4 (a)The Authority cannot make a conclusive finding at this stage on whether the resultant implementation of the Regulations on costs carried by the Public Broadcasting Service (PBS) and Subscription Broadcasting Service (SBS) licensees warrant that the Regulations be amended. However, the figures provided by Multichoice on costs incurred (although one -sided) are indicative of a need to probe the matter further through an Inquiry. On 25 September 2018, the Authority conducted a Regulatory Impact Assessment (RIA) to determine whether or not the Regulations have fulfilled the intended objectives. In March 2019, the Authority published a RIA report on the Regulations which concluded that: This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 213 Provide for terms and conditions under which the SBS licensees will carry the programmes of the PBS licensee; Determine the transparent, equitable and reasonable terms and conditions under which the PBS licensee may offer its programmes to the SBS licensee; (c) Provide exemptions for certain SBS licensees from compliance with the regulations; and (d) Regulate all matters incidental to Must Carry. This gazette is also available free online at www.gpwonline.co.za 214 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 (a) determine the extent to which SBS must carry the tv programmes of the PBS; (b) determine whether it is still practical for the PBS Licensee to offer its television programmes, at no cost, to SBS licensees; (c) determine whether it is still practical for the SBS licensee to carry television programmes of PBS at no cost; (d) determine whether the exemption, as contained in regulation 5 of the Regulations, must continue to apply; and (e) determine whether the cost of Must Carry must be left to the PBS and SBS to negotiate, and if so, what are the recommended dispute resolution mechanisms to avoid delays in implementing Must Carry. The Broadcasting Digital Migration Policy of 20086 states in paragraph 2.3.5 thereof that "the "must carry" arrangements, which require broadcasting services to carry public broadcasting services, continue in the new digital environment, fulfilling the important aspect of providing public broadcasting services to all citizens." The Authority started the process of reviewing the Regulations by conducting a RIA which was concluded in March 2019. Following the RIA, the Authority conducted desktop research to benchmark the Regulations vis -a -vis Regulations in other countries that have Must Carry obligations. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 215 The countries which the Authority benchmarked for this process include the European Union, The United Kingdom, Australia, the United States of America, India and Ireland. The broadcasting industry of these countries are considered to be developed and to have advanced broadcasting policies. The information from these countries provide guidance in terms of regulation of Must Carry, including Must carry in a digital broadcasting environment. Like the Authority, the broadcasting industry in the said countries have three (3) tiers, namely public, commercial and community broadcasting. The work of the European Commission in 2015 provided an overview of different approaches to Must Carry across Europe. In Europe, most countries prescribe Must Carry rules to comply with Article 31 of the Universal Services Directives ( "US Directive "). Article 31 of the US Directive provides that Must Carry obligations should apply only to "networks that have a significant number of end -users using the service as their main means of accessing television broadcasts "8. There are many reasons provided for the requirement for Must Carry obligations by each European country9. In Denmark, the purpose of the rules is to provide access to specific public service broadcasting content, such as the Danish parliamentary television channel and specific services for the visually and hearing- impaired population of Denmark10. In Finland, it is to transmit services that are in the public This gazette is also available free online at www.gpwonline.co.za 216 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 In Hungary, Article 73(1) states that the purpose of the Must Carry rules is "to preserve, protect and further develop Hungarian and European culture and the culture of nationalities, support and sustain the languages of nationalities, satisfy the information needs of citizens and facilitate their participation in democratic public affairs and preserve diversity of opinions "17. In Sweden, it is to provide programme services that offer impartiality and objectivity and to ensure a diversified range of programmes that must include news coverage18. Furthermore, it is to achieve broad freedom of expression and information to the greatest possible extent. In Germany, article 52b states that the overall purpose of the Must Carry rules is to safeguard the plurality of opinion and variety of offers. 11 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 110. 12 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 145. 13 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 162. 14 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 165. 15 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 178. 16 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 103. 17 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 126. 18 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 182. 8 In Norway, the Must Carry rules are there to ensure the provision of programme services that are in the public interest13. In Poland they are there to ensure the transmission of public and specific commercial channels on all platforms, apart from DTT14. In the Republic of Serbia, Must Carry rules are based on the criteria of public interest and media pluralism15 On the other hand, the reason for the Must Carry obligation in Estonia is to guarantee the distribution of particular types of services, such as public service television channels and free digital terrestrial television ( "DTT ") channels on cable, Internet Protocol television ( "IPTV ") and DTT networks.16 interest." In Lithuania, the purpose of the Must Carry rules is to ensure the re- broadcasting of all unencoded national terrestrial television programmes of the Lithuanian public service broadcaster on all platforms regardless of the technology used12. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 217 In Latvia, the purpose of the Must Carry rules is to ensure the re- transmission of public television broadcasting programmes and free -to -air commercial television programmes on cable platforms20. Malta requires this obligation to ensure that television broadcasting networks that are viewed by significant numbers of end -users as their main source of receiving television broadcast reserve part of their network capacity for the re- transmission of television channels qualifying as meeting general interest objectives21. While in the Netherlands the requirement is there to maintain a sufficiently varied media offer in standard television packages and to ensure a level playing field between broadcasters22. Country Must Carry Obligations Channels that are Must Carry Costs/ payment 1. Bosnia and Herzegovina Yes - Art. 8 and 9 of Rule 56/2011 on Licences for the Distribution of Audio -visual Media Services and Radio Media Services23. All platforms, except DTT24. Silent on costs for Must Carry. 19 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 135. 20 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 150. 21 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 154. 22 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 159. 23 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 61. 24 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 61. 9 O -h This gazette is also available free online at www.gpwonline.co.za 218 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 2. Czech Republic Yes - Article 54(1) of Broadcasting Act of 200125. Public service channels and local channels. The four multiplexes in operation are required to carry seven public channels26. 3. Denmark Yes - Art. 1 -4 of the Executive Order on the distribution of television programmes in communal antenna systems27. DTT, cable and IPTV platforms28. However, they do not apply to satellite platforms. Channels that are Must Carry are the parliamentary television channel, TV FRA Folketinget and services for the visually and hearing- impaired population29. 4. France Yes - The Law no. 86 -1067 of 30 September 1986 Cable, satellite, ADSL and UPTS networks. Distributers Must 25 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 79. 26 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 82. 27 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, pp. 85 - 86. 28 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 100. 29 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 101. 10 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 219 Country Must Carry Obligations Channels that are Must Carry Costs/ payment on freedom of communication3o. Carry Arte and France Television that are transmitted by analogue terrestrial networks; TV5 channel; Reseau France Outre -Mer that are destined to the metropolitan public; local channels that so request; parliamentary channel and services for disabled people associated with the channels to be carried31. 5. Netherlands Yes. Art. 6.12 to 6.14d of the Media Act 2008 provide for Must Carry rules.32 All platforms. Each platform is obliged to include six national channels by the public service broadcasters of the W W W N 1--, O n n n o O o C C C O 7 7 r) n n O 0 0 -h -I, -, m ni m C C C O O O ß ß 13 (D (D (D D D ):;; n n n n n n (D (D (D in in in in in in r* r+ r+ O 0 O -I -I -I < < < 1:3 13 13 DJ 1:11 0.1 r* r+ r+ -h -h -h O 0 0 VI VI 3 3 3 VI 3 3 3 C C C v. v. VI r r+ r+ Ñ O O n) n) -.1 -I , ...-4.1 ..-1 -, , C C C (D (D (D e N H O) O) O) O 3 7 IZ IZ IZ O) O) O) n n n n n n (D (D (D in LA vl in in in r+ r+ r+ O 0 0 -h -h -h ...I .n (D (D (D (D (D 1 1 7I 13 ß 13 I-- I-- I-. Ui I-+ I-A I W W 1-- I--. -P This gazette is also available free online at www.gpwonline.co.za 220 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment Netherlands and the Flemish Community of Belgium, as well as the Dutch regional and local public broadcasters.33 6. Slovak Republic Yes- Section 17 of the Law 308/2000 on Broadcasting and Retransmission34. Cable broadcasting. The types of services that are Must Carry include:35 1. the programme services of a public service broadcaster; 2. licensed broadcasters that can be receive free of charge; 3. the programme service of a broadcaster licensed for local digital broadcasting of a television programme 33 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 159. 34 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, pp. 190. 35 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, pp. 190 - 191. 12 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 221 Jo4nqiJisip o4 Aidde aaJOaa leAol¡ sainJ kJeD 4snW ay4 'Me! lensin '17T 1-id Jo suaJa4 uI -oipny au -saA uiedS 'L 906e)!oed auauaeJóoJd oiseq ay4 ui oi!qnd ayi o4 alqeHene a6Jeyo Jo aaJj 6unseopeoJq leool J04 panJasaJ lauueyo auo apnpui A4i1ioej s uoneoiunuauaooala4 uo JO )1JOM4au S uoneoiunuauaooaia4 e ui slauueyo ay4 4ey4 aJnsua o4 pa6i!qo aq !legs Jo4eJado ay4 'apssod 4ou si uoisnpui yons 4! -fr pue : uonelsi6al ogioads o4 iuensJnd uondaoaJ Jo aoeld ayi ie ameHene xaldninua pool ay4 ui panJasaJ seM A4ioedeo oqgnd InIqM J04 'aolnJ2s luauaAed /slsoD /(.iaea lsnw we Imp siauueyD suone6Hqp Aaaep lsnw AJ unoD N w This gazette is also available free online at www.gpwonline.co.za 222 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 920/2006 and Art. 11 of Law 42/1995 of December 22, on Cable37. with more than 30 television channels in its service, at least 30% of the Spanish language channels should be from independent operators not owned by the distributer38. 8. Bulgaria Yes- Articles 37, 37a and 44 of the The channels should be Must Free /No cost Law on Radio and Television39. Carry on DTT platforms if they: 1. have a licence for national coverage for television or radio; 2. distribute their channels over the analogue terrestrial broadcasting system; 3. provide services to at least 50% of the population; and O O O 3 3 3 N N N 3 3 3 c c c N N V1 .-F rF r n n n 01 a) n) -I -I -% This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 223 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 4. unencoded form.4o The multiplex operator (NURTS Digital EAD) is obliged to distribute channels that fulfil the criteria of section 37 and 37a. First Digital EAD (multiplex operator) is obliged to distribute the public broadcasters (BNT1, BNT2, BNT HD). Article 44 obliges the N cn This gazette is also available free online at www.gpwonline.co.za 224 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment cable and satellite service providers to carry the programmes of the public service broadcasters (BNT and BNR) Free to air national coverage channels reaching at least 50% of the population over analogue terrestrial networks are must- carry only on DTT (not on cable and satellite)41. 9. Lithuania Yes. Art. 33 of the All unencoded Law on Provision national terrestrial of Information to television the Public42. programmes of the Lithuanian public service broadcaster LRT (e.g. LRT 41 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 76. 42 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 144. 16 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 225 Country Must Carry Channels that are Obligations Must Carry Costs/ payment televizija and LRT kultúra)43. 10. Romania Yes- Art. 82 of Audiovisual Law44. Cable broadcasting. The law specifies public and private television channels as Must Carry channels. The regulator develops the list of Must Carry channels based on audience shares45. 11. Albania Yes- The Law no. 97/2013 as well as in the AMA's Decision no. 4, dated 26.03.201446. Cable only for the carriage of public television and the two (2) main national free to air private channels47. 12. Finland Yes- Section 227 in Chapter 27 of the Information Society Code48. new Cable, IPTV, and joint antenna networks within a real estate (DU). Further, the rules 43 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 145. 44 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 173. 45 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 174. 46 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 53. 47 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, pp. 53 -54. 48 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 108. 17 This gazette is also available free online at www.gpwonline.co.za 226 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment apply to broadcasting services licensed for public interest television operations; public service television and radio programmes, which includes all the channels of the Finnish Broadcasting Company YLE that are receivable in the municipality through antenna n etwo rk49 13. Iceland Yes- Article 44 of Section VII of the Icelandic Media Law No. 38/20115°. Channels under Icelandic jurisdiction with the exception of teleshopping channels51 Must Carry cost may be determined by the National Regulator. 14. Portugal Yes- Electronic Communications Act52. Electronic communications networks used for 49 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 110. 50 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 135. 51 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 136. 52 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 169. 18 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 227 Country Must Carry Obligations Channels that are Must Carry Costs/ payment the distribution of radio or television broadcasts where such networks are used by a significant number of end -users as the principal means of receiving radio and television broadcasts. The television services that qualify as Must Carry are: services in original Portuguese language of general contents, with general information contents, or with a scientific, education or cultural nature, taking into account its coverage scope and conditions for access53. N lD This gazette is also available free online at www.gpwonline.co.za 228 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 15. Austria Yes - Section 20(1) of the Audiovisual Media Cable operators are obliged to transmit the ORF radio and 1. Cable operators (with regard to multiplex platforms Services Act - television the principle AMD -G54. programmes (including ORF Sport + and ORFIII applies that the distribution of the programmes of the - Culture and Information)55. ORF has to be done in exchange for a reasonable fee. 2. For satellite there is no corresponding rule with regard to costs56. 16. Belgium Yes- Art. 81, 82, 83 and 87 of the Broadcasting services for French 1. The Media Act is silent on costs AVMS Decree. Further, Art 185 Community, Flemish Community incurred as a result of compulsory of Media Act, Art. and German- transmission of 186 and Art. speaking services for the 18757. Community. The French Community. Must Carry rules apply to cable networks (Art. 82 Of the Act), satellite 2. Section 1 2 ° in Art. 186 of Media Act states that for the Flemish (Art. 87 of the Act) Community, local 5a Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 55. 55 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 57. 56 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 58. 57 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 63. 20 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 229 Country Must Carry Obligations Channels that are Must Carry Costs/ payment and any electronic communications network with significant number of end -users as their principal means to receive radio and television broadcasts58. broadcasters have to be transmitted free of charge. 3. The Act is silent on costs incurred as a result of compulsory transmission of services for the German -speaking Community.59 17. Switzerlan Yes- Articles 45 Wireless terrestrial 1. In terms of Art. d and 46 of broadcasting as 59, transmission by Ordinance on well as wire of access - Radio and broadcasting by entitled Television Articles wire. Further, Must programmes must 59 and 60 of Carry apply to the be free of charge Swiss Federal following services: 2. Further, the law Radio and 1. television states that in case Television Act programmes by of an unreasonable (RNA); and Article 52 of national /regional- linguistic public economic burden, access -entitled Ordinance on service broadcaster broadcasters have Radio and SRG SSR, as to pay appropriate Television defined in Art. 8 of compensation to (ORTV)60. the SRG licence: the SRF 1, SRF 2, TSR This gazette is also available free online at www.gpwonline.co.za 230 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 1, TSR 2, RSI LA 1, telecommunication RSI LA 2 9 s service provider. (throughout 3. With regard to Switzerland) and the carriage cost of SF Info (in the access -entitled German -speaking channels on part of terrestrial Switzerland). broadcasting Art. 2. foreign television 55(2) of the RIVA programmes which mentions that contribute "broadcasters pay especially to public the owner of a service objectives radio (Art. 59(2) RTVG). communication 3. television licence cost -based programmes based compensation for on a licence to fulfil the broadcasting of a public service access -entitled mandate (e.g. local programme channels in the services ". This is respective regions provided for in Art. according to Art. 4862. 59(1b) RTVG (13 in total) . 4. other television programmes, which contribute to the N N) This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 231 Country Must Carry Obligations Channels that are Must Carry Costs/ payment fulfilment of public service goals 5. services which are coupled with access -entitled television programmes (such as services for the visually and hearing impaired or information for EPGs)61 18. Germany Yes - Articles 51(b), 52(1), 52(b) and 52(d) of the Interstate Broadcasting Treaty63. The digital transmission of broadcasting to all forms of distribution by private platform providers that offer linear audiovisual media services via closed networks (e.g. cable and IPTV). The Must Carry rules only apply if the platform provider Cable operators are paid for retransmission of content instead of paying for it65. 61 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 78. 63 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 82. 65 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 84. 23 This gazette is also available free online at www.gpwonline.co.za 232 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment also operates the technical infrastructure64. 19. Estonia Yes- Articles 90 and 90 1 Of the Electronic Communications Act66. Cable, IPTV and DTT networks.67 The television channels under must -carry rules are the public service television channels ETV and ETV2, and channels having licences for provision of free access television services: Tallinn municipal Tallinna TV (TTV) and private commercial channels Kanal2 and TV368. In terms of the Electronic Communications Act, broadcasters offering FTA television services have the right to ask from cable operators a reasonable charge for re- transmitting their television programmes. However, there is no provision on how calculation of costs is done69. 20. Hungary Yes. The Act CLXXXV of 2010 on Media Services Cable television networks, satellite and terrestrial media service distribution The distribution platforms are obliged to carry "a total of four linear audiovisual media 64 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 84. 66 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 101. 67 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 103. 68 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 103. 69 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 104. 24 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 233 Country Must Carry Obligations Channels that are Must Carry Costs/ payment and Media70. Mass networks, as well as transmission systems allowing for transmission of media services by use of Internet Protocol. Further, in terms of Art. 73 (3- 4), the obligations extend to "providers and operators distributing media services on other transmission systems or networks, if this transmission system or network is the one which is widely used by subscribers and users as the main instrument for receiving radio and audiovisual media services "71. services and three linear radio media services of the public media service provider free of charge, with the exception of media service distribution performed by means of broadcasting transmission72. V V V N F+ O n n n o 0 0 c c c O 7 0 n n n O 0 0 -h -h -h m m m C C c 0 0 0 ß 73 a P (D (D D D D n n n n n n (D (D m N N N V1 V1 V1 rF rF r O 0 0 --I -I -I < C < 73 ú 13 fl) I:u CD r-F rF e-F -h fi -h O 0 0 3 3 3 V1 N V1 3 3 3 c c c V1 N N r-F rF rF n n n w Ol G) - , -, -, NG -.< ...G VI -N c c c (D (D (D N N N 0) N N = 0 7 Q Q O- W D) O) n n n n n n (D (D (D N N N V1 V1 N This gazette is also available free online at www.gpwonline.co.za 234 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 21. Italy Yes - The Decree Digital terrestrial In terms of Art. 27 Law no. 34 of 31 multiplex AGCOM Resolution March 2011, as converted by Law platforms. Digital terrestrial no. 353/11/CONS, with regard to the no. 75 of 26 May platforms are costs for transfers 2011 as well as obliged to transport of transmission the AGCOM local channels as capacity the Resolution stipulated by Art. regulation specifies 353/11/CONS 27 of the AGCOM the range of costs and the Decree Resolution no. (minimum of 0,010 Law no. 145 of 23 December 2013, as converted by Law no. 9 of 21 February 2014, as modified by Art. 1, comma 147, of Law no. 353/11/CONS74. Euros and maximum of 0,016 Euros per 1 M /bits per inhabitant) and stipulates that the price lists are to be made public on the website of 190 of 23 AGCOM75. December 201473. 22. Lithuania Yes- Art. 33 of the All unencoded In terms of Art. Law on Provision national terrestrial 33(3) of the Law on of Information to television Provision of the Public76. programmes of the Information to the Lithuanian public service broadcaster Public, re- broadcasters and 73 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 138 - 140. 74 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 141. 75 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 141. 76 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -Dir, p. 144. 26 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 235 Country Must Carry Obligations Channels that are Must Carry Costs/ payment LRT (e.g. LRT televizija and LRT kultúra).77 the LRT shall not pay each other for must -carry television programmes78. 23. Latvia Yes- Art. 19 of the Electronic Mass Media Law79. Cable operators, public television broadcasting programmes (LTV1 and LTV7) and also apply to national commercial television programmes available free -to -air (e.g. Riga TV 24, OW and Re: W)80 The Electronic Mass Media Law states that for the re- transmission of Must Carry services neither broadcasters nor re- transmission operators may request a fee for Must Carry 81. 24. Malta Yes- Regulation 49 of the Electronic Communications Networks and Services (General) Cable networks. The Broadcasting Authority identifies channels qualifying to meet general interest objectives. These channels are thus entitled for carriage on the Regulation 49 of the Regulations state that where Must Carry obligations place an excessive or undue burden on the operator of a particular network, " Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 145. '8 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 145. 79 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 149. 80 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 150. 81 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 150. 27 This gazette is also available free online at www.gpwonline.co.za 236 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment Regulations, 2011.82 free -to -air DTT broadcast network managed by Public Broadcasting Services Limited (PBS) and for Must Carry statu s83. the MCA will, where it deems appropriate, consider alternative measures for the General Interest TV (GI TV) channels to be seamlessly available to all end - users of that network provided that no undue burdens are placed on end -users. Further, when determining whether remuneration for the retransmission of the GI TV channels should be provided, the MCA will need to satisfy itself that any remuneration N 00 co co W N ^ n l 1 O o c c = = n n O O -.., -... m m C C O O -0 -0 (D P D D n n n n (D (D LA vs CA LA rr r+ O O -I -I < < ID -0 0.) Q1 r r+ -w -, O 0 LA CA 3 3 c c (/1 W r+ r+ n n 0) 0) ..-<1 ...-2 C c (D (D N e 0) 0) O O Q CI- 0) 0) n n n n (D (D LA CA V1 VI r-F r+ O O -ti -ti -L -% (D (D (D (D 1 1 13 -a 1--% I-- ln U'1 -P. W This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 237 Country Must Carry Obligations Channels that are Must Carry Costs/ payment provided can be justified84. 25. Norway Yes- Article 4.3 in Chapter 4 of the Norwegian Broadcasting Act, 199285. Cable networks only. In Norway, both the state- funded public broadcaster NRK and the private commercial public service channel TV 2 have a must - carry status86. The provisions stipulate that the retransmission of TV 2 shall be based on commercial terms87. 26. Poland Yes- Article 43 of the Broadcasting Act of 29 December 199288. All platforms, apart from DTT89. The law stipulates that broadcasters under Must Carry rules cannot demand fees from platform operators for the re- transmission of their services90. 27. Republic of Serbia Yes- The Law on Electronic Media, the Law on Public Media Services All platforms except DTT. The rules oblige operators to carry Art. 15 of Law on Public Media Services states that the public media 84 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 154. 85 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 161. 86 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 162. 87 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 162. 88 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 164. 89 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 165. 90 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 167. 29 This gazette is also available free online at www.gpwonline.co.za 238 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 Country Must Carry Obligations Channels that are Must Carry Costs/ payment and the Law on Electronic Communications91 the services of the public service media, and allow service broadcaster is obliged to pay fees to an operator . the regulator to create a list of other services that should be Must Carry on the basis of the criteria of public interests and media pluralism92. for transmission of these services. The fee and other important issues are regulated by contract93. 28. Sweden Yes- Section 1 of Cable and IPTV The provider has Chapter 9 of the networks. The the right to charge Swedish Radio and services that are a reasonable Television Act94. Must Carry are public service Company Swedish service and maintenance fee for the network. Television and its four channels95. However, audiences are protected from paying extra fees by section 1 of Swedish Radio and Television Act96. 91 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 177. 92 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 178. 93 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, pp. 178 179. 94 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 181. 95 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 182. 96 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 183. 30 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 239 Country Must Carry Obligations Channels that are Must Carry Costs/ payment 29. Slovenia Yes- The Mass Media Act. 97 Operators (terrestrial networks, satellites or cable distribution). The channels that are Must Carry are listed in an Official Gazette of the Republic of Slovenia98. Under cable /satellite platform and terrestrial broadcasting platform, television and radio channels with the status of special importance should be must carried free -of- charge.99 In the case of DU, television and radio channels with the status of special importance are obliged to pay the proportional costs of depreciation and maintenance expensesloo. 97 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 185. 98 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 186. 99 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 187. ioo Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 189. 31 This gazette is also available free online at www.gpwonline.co.za 240 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 jojpauie4ulew ale 6uiwwea6o.id jo Allsaanlp pue Olenb 4eyl 6uiansua ui 4uelodwi uaag seq aladwoD pue 4uawaldwoa ylog own saapinoad (gsd) 6unseapeoag aDinaaS oilqnd lo Aiileanld ay4 6uiuie4sns 4e41 sanallaq ivawwano6 >in ayl 6ulwwea6oad leuol6aa pue slie 'eweap 's.alege luaaana 'snnau se ypns saaua6 jo a6uea asaanlp e ssone 6uiwwea6o.id Amenb ON a4eaaua6 o4 6ulag alepuew aeliwls e aney slauueyo aalnaas allgnd asayl Di's pue S lauueyj 't, Iauueyj 'E lauueyp 'jgg 'AIaweu 'slauueyo aainaas 6unseapeoaq allqnd (s) anu seq bin) wop6uN pa4iun ayl 'slauueyo apinaas 6unseopeoaq oIlqnd (E) aaayl seq ypiynn eoIaly i441-10S anun The conditions for Must Carry obligations in the UK are provided for in terms of section 64 as well as sections 272, to 275 of the Communications Act102, to regulate electronic communication networks namely, cable, satellite, terrestrial networks, IPTV etc. The electronic communication networks are obliged to carry PSB television channels. In terms of section 64(2) of the Communications Act Must Carry rules should apply under the following conditions: when a network has a significant number of end -users that use its network as the primary source for receiving television programmes; and when services are included in the list of Must Carry services. a) v) This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 241 Before determining whether it is appropriate to amend the Must Carry list, the Secretary of State must consider the following: the public benefit in doing so; the extent to which a service would otherwise be made available even if not added to the list; the amount of spare network capacity of providers of electronic communications networks to whom the Must Carry obligations apply; and whether the burden of compliance is proportionate to the objective of securing that Must Carry services are made available to the public. The Communications Act has listed Must Carry services as: (a) any service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM has functions; (b) Channel 3 services so far as provided in digital form; (c) Channel 4 so far as provided in digital form; (d) Channel 5 so far as provided in digital form; (e) S4C Digital; and (f) the digital public teletext service 103 In carrying out the review the Secretary of State must consult OFCOM and other parties that are likely to be affected by a modification to the Must Carry list. Following such a review, the Secretary of State may, by order, amend the Must Carry list104 However, even though there is a list of Must Carry services, the Secretary of State has the power to review the Must Carry list from time to time, and any requirements according to the terms on which services in that list must be broadcast. This gazette is also available free online at www.gpwonline.co.za 242 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 On top of the obligation to carry, there is also an obligation to offer. Must offer obligations require relevant broadcasters to make their PSB channels available to every appropriate network and satellite services. The scope does not extend to PSBs' video -on- demand or portfolio services.1o5 The Communications Act set out must -offer obligation for electronic communication networks, and satellite respectively, for digital format. In terms of section 64 of Communications Act1o6 the must -offer obligations apply to every other licensed television service for the purposes of Must Carry obligations as obligated by Secretary of State107. The following must offer obligation objectives were identified to ensure that'°8: channel or other services are provided in digital format and are broadcast and distributed on appropriate networks; the channel or other service providers are to ensure that agreements entered into comply with the following principles: a) that the channel or other services, are broadcast and accessible to citizens in the UK; and b) that broadcasting is in accordance with agreed terms and is accessible to intended audiences. N 0 F-- Y.' -i = (D 0- 0) ST O n (D O - h -0 0) < This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 243 The arrangements that are to be entered into, or may be imposed, are arrangements that secure: (a)that a facility for receiving each must -provide service, is made available to every member of the intended audience for that service who is unable, without the use of that facility, to receive it an intelligible form and free of charge; (b)that the facility is one under which every such member of the intended audience for a must -provide service is entitled, free of charge, to receive in an intelligible form so much of a service broadcast from a satellite as includes that must -provide service; (c) that the cost of making that facility available is shared, in appropriate proportions, by all the persons providing must -provide services; (d)that procedures are established and maintained for dealing with complaints from persons claiming to be entitled, in accordance with the arrangements, to receive a service free of charge, and for resolving disputes about the existence or extent of such an entitlement; and (e)that the availability of those procedures is adequately publicised in accordance with guidance given from time to time by OFCOM. Must Carry obligations are the same in digital environment as it is in an analogue environment. According to section 64(2)(b) of the Communications Act, Must Carry conditions should be limited to networks by means of which public electronic communications services are used by a significant number of end -users as their principal means of receiving television programme. (a) the persons providing must provide services fail to enter into or maintain arrangements satisfying the requirements of this section; and (b) the person bound by the must provide conditions is required to act in accordance with arrangements imposed by OFC0M1o9. This gazette is also available free online at www.gpwonline.co.za 244 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 OFCOM gave directive to two terrestrial transmission providers namely National Transcommunications Limited (NTL) and Crown Castle to provide transmission of the Must Transmission Services (MTS), as they provide PBS and are considered to be appropriate networks because they have significant numbers of end -users"°. MTS refers to the broadcast or transmission of the Must Carry Services by NTL or Crown Castle through using equipment installed and operated by them for that purposelu. Moreover, the NTL and Crown Castle are required to provide MTS on fair and reasonable terms, conditions and charges. In terms of fair and reasonable terms, conditions and charges, OFCOM follows Article 31(2) of the Universal Service Directive which acknowledges that Member States should be able to determine appropriate payment, in respect of Must Carry obligations112. OFCOM is of the view that the cost of providing MTS is substantial, therefore, for the purpose of investment in infrastructure, other operational costs should be taken into account in order to encourage innovation113, as such, it is important for transmission service providers to charge for MTS that they provide. OFCOM is of the view that this would allow a reasonable opportunity to return of investments. OFCOM does not however determine the charges for MTS, but allows these to be determined in commercial agreements. 110 Provision of Managed Transmission Services to Public Service Broadcasters Proposal to give a Direction setting must -carry obligations on the terrestrial transmission network February 2005, page 2 111 !bid, page 3 112 Universal Services Directive http: / /eur- lex.europa.eu /legalcontent/ EN /TXT /HTML / ?uri= CELEX:32002L0022 &from =EN 113 Provision of Managed Transmission Services to Public Service Broadcasters Proposal to give a Direction setting must -carry obligations on the terrestrial transmission network February 2005, page 8 114 Communications Act of 1934, section 1. 36 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 245 The television market in the USA consists of public, commercial and community broadcasting transmitted through various platforms. The PBS is an American public broadcaster established in terms of the Public Broadcasting Act of 1967.115 There are four traditional commercial television service networks, namely; American Broadcasting Company (ABC), Columbia Broadcasting System (CBS), National Broadcasting Company (NBC) and FOX."6 In terms of section 611 of the Communications Act, local franchising authorities may require cable operators to set aside channels for public, educational, or governmental use."' Community television services that are available in the USA are provided through the cable television system.118 They comprise of Public- access television, Educational- access, Government -access and Leased access (pay per view) television 115 Public Broadcasting Act of 1967, section 396(b). 116 Hélène Palmeri, « U.S. public te evision in the digital era: from niche to "Greek marketplace " ?,Transatlantica [En ligne], 2010, mis en ligne le 13 avril 2011, consulté le 05 mai 2019. URL : transatlantica /5193, p 8. 117 Communications Act of 1934, section 611. 118 Communications Act of 1934, section 611(b). 119 Janes, BT. History and Structure of Public Access Television, Journal of Film and Video Vol. 39, No. 3, Community Access Cable Television (Summer 1987), p 14. 120 retrieved on 20 August 2019. 121 https: / /mtsu.edu/ first -amendment /article /1000 /must- carry -rules, retrieved on 13 August 2019. 37 Must Carry obligations in the USA were introduced in 1965 to require cable systems to carry local broadcast television stations.121 Cable television operators bear a statutory obligation to reserve up to one third of their channel capacity for the compulsory carriage of significantly viewed local, terrestrial broadcast television This gazette is also available free online at www.gpwonline.co.za 246 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 In the Quincy Cable TV Inc y FCC124, the court had to consider the Must Carry provision that required cable television operators, upon request and without compensation, to transmit to their subscribers every over -the -air television broadcast signal that is "significantly used in the community" or other considered local broadcasters under Commission's rules. Furthermore, the Act required a cable system to carry all commercial broadcasters within a 35 -mile radius of the communities served, in addition to providing the same service to other broadcasters in the same market and even others in various yet competing markets. Thus, cable broadcasting was to grow within the spirit that is consistent with the public interests that would preserve local content. The Circuit Court of Appeals for the District of Columbia found Must Carry rules to be impermissible content -based regulations in violation of the First Amendment to the United States Constitution.'25 The Cable Television Consumer Protection and Competition Act of 1992 ( "Cable Act "), enacted by Congress after extensive hearings and over a presidential veto, re- established the Must Carry rules for cable operators.126 In 1993 the new Must Carry requirements were immediately challenged in Turner Broadcasting System, Inc. y Federal Communications Commission127. Sections 4 and 5 of the Cable Act required cable systems to allocate a percentage of their channels to local public broadcast stations for Must Carry.128 The rules limited the channels available for exclusive 122 Closs W & Nikoltchev S "To Have or Not to Have Must -Carry Rules ", the European Audiovisual Observatory, p 21. 123 https: / /www.mtsu.edu/ first -amendment /article /1000 /must- carry -rules, retrieved on 13 August 2019. 124 Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C.Cir. 1985). 125 Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C.Cir. 1985). 126 https: / /www.mtsu.edu/ first -amendment /article /1000 /must- carry -rules, retrieved on 13 August 2019. 127 Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994). 128 Cable Television Consumer Protection and Competition Act of 1992. 38 stations.'22 In the mid- 1980s, as cable networks increased, cable operators found Must Carry rules to be increasingly burdensome because the operators were being forced to carry local broadcast stations in preference to the more popular and lucrative cable network channels.'23 This led cable operators to approach court for relief. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 247 The Australian Communications and Media Authority Act 2005 ( "ACMA Act ") established the Australian Communications and Media Authority (ACMA) for the purposes of regulating the broadcasting, radio communications and telecommunications sectors according to the provisions of relevant legislation. ACMA's mandate is to deliver a communications and media environment that balances the needs of the industry and the Australian community with regulation, education and advice.135 The Cable Act, specifically, section 4 provides for Must Carry rules and requires cable operators to carry local broadcasting stations.132 In terms of section 4(a) of the Cable Act, each cable operator shall carry, on the cable system of that operator, the signals of local commercial television stations and qualified low power stations as provided by this section.'33 Carriage of additional broadcast television signals on such system shall be at the discretion of such operator.134 129 129 https: / /www.oyez.org /cases/1993/93 -44, retrieved on 13 August 2019. 130 https: / /www.mtsu.edu/ first -amendment /article /1000 /must- carry -rules, retrieved on 13 August 2019. blic Policy, volume 15 Issue 1 Fall 2005, Article 2, Digital Must Carry and the Case otection and Competition Act of 1992. otection and Competition Act of 1992. blic Policy, volume 15 Issue 1 Fall 2005, Article 2, Digital Must Carry and the Case This gazette is also available free online at www.gpwonline.co.za 248 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 á p 7 trq 1 so ccording to the ABC Charter, it is required to provide informative, entertaining and educational services that reflect the breadth of the Australian nation. SBS is founded on the belief that all Australians, regardless of geography, age, cultural background or language skills should have access to high quality, independent, culturally -relevant Australian media "42. SBS operates under the Special Broadcasting Service Act and operates six free -to -air television channels, eight radio stations and World Movies, a subscription television channel. Although it provides a subscription television channel, SBS is considered to be a free -to -air public broadcaster143. so Australia has two subscription television services excluding Telstra which provides Netflix services. Galaxy is Australia's first subscription television service broadcaster138, there is also another subscription television service broadcaster being Foxtel. Foxtel acquired Galaxy customer subscriptions when Galaxy ceased operations.139 As of 2012, there were only 28% of Australian households subscribed to a pay television service, with Foxtel dominating most of the market. The second pay television provider in Australia is Fetchl4o. Australia has two national broadcasters, that is ABC and Special Broadcasting Service ( "SBS ").141 https: / /www.aph.gov.au /About Parliament /Parliamentary Departments /Parliamentary Library /pubs /rp /rp161 7 uick Guides MediaCommsResources htt s: www.acma. ov.au theACMA About Cor orate Res onsibilities re ulation -res onsibilities -acma https: / /www.finder.com.au /internet -tv /pay -tv https: / /www. finder .com.au /internet -tv /pay -tv https : / /www.acma.gov.au /theACMA/ About / Corporate / Responsibilities /regulation- responsibilities -acma htt s: www.a h. ov.au About Parliament Parliamentar De artments Parliamentar Librar ubs r r 161 7 uick Guides MediaCommsResources https: / /www.aph.gov.au /About Parliament /Parliamentary Departments /Parliamentary Library /pubs /rp /rp161 7 /Quick Guides /MediaCommsResources https: / /www.sbs.com.au /aboutus /our -story The Broadcasting Services Act No. 110 of 1992, as amended ( "BSA ") sets out the regulatory environment for the broadcasting industry in Australia136. Further, the Australian Broadcasting Corporation Act ( "ABC Act ") of 1983 provides for the establishment and operation of the Australian Broadcasting Corporation ( "ABC ").137 1--. Ó . 00 r UJ V This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 249 The purpose of a Must Carry regime is to provide a framework for commercial negotiations between free to air broadcasters and subscription television companies about payments for broadcasts retransmitted by the latter. A Must Carry regime would also ensure that, in future, free -to -air broadcasters are not forced to pay for carriage on subscription platforms (particularly if IPTV becomes a primary platform with the advent of Australia National Broadband Network) and prevent `cherry - picking' of channels where subscription television only retransmits some of the free - to -air broadcaster's channels'46. The Australian Law Reform Commission ( "ALRC ") undertakes research and provides recommendations to reform the law on topics selected by the Attorney -General of Australia144. The ALRC has suggested that a US -style 'Must Carry' regime should be implemented for Australia. Under Australia's Must Carry regime, free -to -air broadcasters have the option of either requiring that they be carried on cable or on satellite platform, or requiring that the free to air broadcaster be remunerated where the satellite platform chooses to re- transmit the signa1.145 During the Must Carry inquiry conducted in Australia, a number of stakeholders addressed the issue of Must Carry. Free -to -air television broadcasters were in favour of retransmission of free -to -air television broadcasts permitted with the consent of, and in accordance with commercial terms agreed with the broadcaster or with "Must Carry" obligations. The other submissions were in disagreement with the proposed Must Carry obligations especially the subscription television broadcasters. r+ r f A A A 01 lJl A This gazette is also available free online at www.gpwonline.co.za 250 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 The current Irish television landscape is a mix of national, regional and local services which can be public, commercial or community in nature, offering differing and varied content15o. The Irish state or public television service broadcaster is Raidió Teilifís Eireann (RTE) TV151. The Irish pay television services include EIR Sport, Virgin Media and Virginia Media Sports152. However, many other subscription television services from outside Ireland, such as Sky and Vodafone are available for interested viewers153. 8t,jsMe1 4t6itAdop Jo uatopt Aq uanitp ag 'wogs JO 'ueD 4eti sanssi 4ou ate pue ADHod suoneDiunuauaoo uo Aiiteutitd paseq ate sauai6at Atte3 4snW toj saieuonet ADHod at4 'tatptnj suopdaDxa 4t6itAdoo jo uonetado at4 utaDuop Aipatip 4ou saop anssi situ tapiot 4t6itAdoD atn jo 4satag at4 4e '(s4seppeotg) sieita4eua 4t6itAdop a4eoiunutuaoD oi suone6nqo asoduti oi a4etado pinonn suoisinotd AtteD 4snW 147 Copyright and the Digital Economy (ALRC report 122). 149 European Audiovisual Observatory for the European Commission - DG COMM, p 130. 150 , retrieved on 6 May 2019. 151 , retrieved on 6 May 2019 . 152 retrieved on 7 May 2019. 153 , retrieved on 7 May 2019. 42 = = = = 1-1. r+ e+ r+ rt ri ln r) = (D r) o This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 251 In terms of section 77(3) of the Broadcasting Act, in the case where the appropriate network is a digital system, the appropriate network provider shall ensure the re- transmission of the Houses of the Oireachtas Channel and the Irish Film Channel. Section 77(4) provides that an appropriate network provider shall ensure the re- transmission of each free -to -air television service provided for the time being by RTE ", TG4 and the free -to -air service provided under Section 70 of the Broadcasting Act by the television service programme contractor which that body requests the appropriate network provider to re- transmit. In total this includes the Houses of the Oireachtas Channel (Parliamentary channel) and the Irish Film Channel (not yet established) and the free -to -air services of public service broadcaster, i.e. RTÉ; TG4155. 1ay 6unseapeo.i8 ayl Jo(V)LL pUe (£) LL suonaas aapun pa4si! aae Aa.ieD lsnW ale ley4 slauueya au saainaas uoisinaia4 Aiiunuauaoa aoj uone6i!qo A.i.ieD lsnW e si aaayp 'amea le4i6ip jo asea ain ui Aa.ieD isnW aoj Amenb o4 leiaaieua auauaea6oad jo suoissiwsue.il 6uiniaaaa jo sueaua lediauiad aiay4 se saasn-pua jo aaquanu lueagiu6is e 4 pasn aq lsnua aapinoad >aonn4au a4eiado.idde uy Section 77 of the Broadcasting Act addresses the issue of the Must Carry rules.154 The Must Carry rules apply to "appropriate networks" and these are defined as follows: "an electronic communications network provided by a person ( "appropriate network provider ") which is used for the distribution or transmission of broadcasting services to the public': F- Ul Vt A This gazette is also available free online at www.gpwonline.co.za 252 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 To enforce Must Carry obligations in India, section 8 of Cable Television Networks (Regulation) Act, 1995 ( "Cable Act ") requires that specific channels be transmitted. Therefore, the Central Government in India, has a mandate to specify by notification in the government gazette the names of Doordarshan channels or the channels operated by or on behalf of Parliament, to be mandatorily carried by the cable operators on their cable services. Moreover, these channels are re- transmitted without any deletion or alteration of any programme transmitted on such channels. prejudice to the requirements imposed under section 77(4), RTE, TG4 and the television service programme contractor shall ensure that their Must Offer services are always offered for re- transmission (subject to agreement that is fair, reasonable and has non -discriminatory terms of use) by means of any appropriate network that is available for reception in an intelligible form by members of the public in the whole of, or in part of the State'56. The Public Broadcasting Corporation of India called Prasar Bharti was established under the Prasar Bharti Act, 1990. The main obligation of the Public Broadcasting Corporation of India'57 is to organize and conduct public broadcasting services to inform, educate, and entertain the public and to ensure a balanced development of broadcasting of radio and television's$. 156 Ibid. 157 Section 12 Corporation of India) Act, 1990 - An overview a, section 8 of Cable Television Networks (Regulation) Act, 1995, page 5 44 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 253 In India the Central Government may issue a government directive in the public interest to the Telecom Regulatory Authority of India ( "TRAI ") to specify, through notice in the government gazette, that one or more free -to -air channels must be included in the package of channels forming basic service tiers16o. Moreover, any one or more of such channels may be specified in the notice in terms of genre for providing a programme mix of entertainment, information, education and other programmes. Unlike other jurisdictions, the multi system operator ( "MSO ") enters into a written interconnection agreement with the local cable operator for providing signals of television channels to the local cable operator, in line with the model of interconnection agreement. PD LO CE rt O O 160 section 36, section 11, of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), 161 Section 36, section 11, of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), 162 Digital Addressable Cable Television Systems) Regulations, 2012 (9 of 2012 45 This gazette is also available free online at www.gpwonline.co.za 254 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 163 The Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (Seventh Amendment) Regulations, 2016 (No. 3 Of 2016) 164 Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations, 2012 (9 of 2012 165 Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations, 2012 (9 of 2012 166 The Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (Seventh Amendment) Regulations, 2016 (No. 3 Of 2016) 46 operator in accordance with its reference interconnect offer within sixty days from the date of receipt of such request. In case the request for providing signals of television channels is not agreed to, the reasons for such refusal to provide signals shall be conveyed to the local cable operator or to the person making a request within sixty days from the date of request163. Regulation 13B, states that every MSO shall, within a period of thirty (30) days from the date of receipt of a request from the local cable operator, to provide the signals of television channels, enter into an interconnection agreement in accordance with the terms and conditions of the model interconnection agreement or standard interconnection agreement165. The MSO shall make available signals of television channels to the local cable operator, on non -exclusive basis, to re- transmit the same to the subscribers in the territory, in terms of the agreement and as per prevailing norms, policies, the applicable laws and rules, regulations, directions and orders of the concerned authorities164. Regulation 5.2 states that the local cable operator shall carry signals of TV channels received from the MSO, on non -exclusive basis, for distribution to the subscribers in the territory166. It is compulsory for parties to transmit, re- transmit or otherwise carry any channel, content or programme only in encrypted mode through a digital This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 255 This gazette is also available free online at www.gpwonline.co.za 256 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 CONTINUES ON PAGE 258 - PART 3 No. 10177 Regulation GazetteRegulasiekoerant N.B. The Government Printing Works will not be held responsible for the quality of “Hard Copies” or “Electronic Files” submitted for publication purposes AIDS HELPLINE: 0800-0123-22 Prevention is the cure Government Gazette Staatskoerant REPUBLIC OF SOUTH AFRICA REPUBLIEK VAN SUID AFRIKA Vol. 65413 December Desember 2019 No. 42902 9771682584003 ISSN 1682-5843 42902 PART 3 OF 3 The benchmarking conducted indicates that must carry obligations in most countries, specifically, in Europe are prescribed to comply with Article 31 of the Universal Services Directive168 ( "US Directive "). Article 31 of the US Directive provides that Must Carry obligations should apply only to "networks that have a significant number of end -users using the service as their main means of accessing television broadcasts" 169, 167 Telecom Regulatory Authority of India, Consultation on Draft Tele - Communication (Broadcasting and Cable Services) Inter Connection (Addressable Systems) Regulations, 2016, p 116 -119 168 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 10. 169 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 10. 47 This gazette is also available free online at www.gpwonline.co.za 258 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 that qualify for carriage. The Authority indicated that the definition of "public broadcasting service" in the Broadcasting Act mirrors that contained in the ECA and specifically states that the "public broadcasting service" includes the commercially operated service of the public broadcaster, arguably casting the net wider than it is in terms of the ECA.170 As a result, all the television programmes comprising a channel and broadcast by a Public Broadcast Service licensee as part of its broadcasting service are subject to Must Carry obligations.'71 The Authority deemed it necessary to pronounce on the obligation to offer television programmes to make for a smooth process for the carriage of the television programmes of the Public Broadcasting Service. The Authority therefore mandated the Public Service Broadcasting Licensee to offer its television programmes to a Subscription Broadcasting Service Licensee upon a request from the Subscription Broadcasting Service Licensee. The Public Service Broadcasting Licensee must offer All free -to -air commercial broadcasting service licensees will have to negotiate their individual arrangements for access and carriage in a commercial agreement to be reached with the respective Subscription Broadcasting Service Licensees until such time that there is a different dispensation. The legislation only recognises the television programmes provided by a public broadcast service licensee for carriage. l'o ICASA Must carry Obligations: Position paper and Draft Regulations, published in Government gazette 31081 of 22 May 2008, page 30 -31 171 ICASA Regulations: Extent to which subscription broadcasting services must carry the television programmes provided by the Public Broadcast Service Licensee, Government Gazette 31500, published on 10 October 2008, page 5 48 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 259 The obligation on the Subscription Broadcasting Service Licensee to carry television programmes of the Public Service Broadcasting Licensee shall not be applicable to Subscription Broadcasting Service Licensees whose service offering has twenty -nine (29) channels or less. A Subscription Broadcasting Service Licensee must ensure that every twentieth (20th) channel added to its bouquet over the minimum thirty (30) is a must carry channel (being the 30th, 50th, 70th, 90th channels and so forth). 175 In terms of the current Must Carry Regulation, a Subscription Broadcasting Service Licensee must submit a request to carry the television channels of the Public Service Broadcasting licensee within six (6) months of the coming into effect of the Regulations or within six (6) months from the date of issue of the Subscription Broadcasting Service Licence. Retransmission of must carry channels must commence within three (3) months of the receipt of the must carry channels.174 In Ireland, RTE, TG4 and the television service programme contractor shall ensure that their Must Offer services are always offered for re- transmission (subject to agreement that is fair, reasonable and has non -discriminatory terms of use) by means of any appropriate network that is available for reception in an intelligible form by members of the public in the whole of, or in part of the State173 its programmes to a Subscription Broadcasting Service Licensee within three (3) months from the date of the request submitted by an Subscription Broadcasting Service Licensee. The Public Service Broadcasting Licensee must deliver its signal to the Subscription Broadcasting Service Licensee in an unencoded and compatible format. 172 172 Ibid, page 7 173 Broadcasting Act No. 18 of 2009, Section 77(4). 174 ICASA Regulations: Extent to which subscription broadcasting services must carry the television programmes provided by the Public Broadcast Service Licensee, Government Gazette 31500, published on 10 October 2008, page 5 175 Ibid, page 6 49 This gazette is also available free online at www.gpwonline.co.za 260 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 The wording requiring that the Subscription Broadcasting Service Licensees are required to carry the programmes of a Public Service Broadcasting Licensee at no cost is, at face value, in direct contradiction to section 60(3) of the ECA that requires ICASA to "prescribe regulations regarding the extent to which subscription broadcast services must carry, subject to commercially negotiable terms ... ". Thus, the SABC has identified this apparent inconsistency as rendering regulation 6(1) to be ultra vires.178 The countries benchmarked do not go into detail in respect of the above. In most countries, specifically, in Europe the must carry obligations are prescribed to comply with Article 31 of the US Directive. Article 31 of the US Directive provides that Must Carry obligations should apply only to "networks that have a significant number of end -users using the service as their main means of accessing television broadcasts ".176 The Authority decided that the Public Service Broadcasting Licensee must bear the costs of transmission of the broadcast signal to the Subscription Broadcasting Service Licensee. The Subscription Broadcasting Service Licensees are required to transmit simultaneously and without any alteration, the entire television programmes of the Public Service Broadcasting Licensee.17 176 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 10. 17 ICASA Regulations: Extent to which subscription broadcasting services must carry the television programmes provided by the Public Broadcast Service Licensee, Government Gazette 31500, published on 10 October 2008, page 7 178 ICASA Regulatory Impact Assessment Report on the Must Carry Regulations, published on the ICASA website in March 2019, page 6 179 ICASA Must carry Obligations: Position paper and Draft Regulations, published in Government gazette 31081 of 22 May 2008 50 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 261 promulgation of the Regulations and the submissions by stakeholders made thereto. The Position Paper shows that stakeholders, such as Multichoice, had foreseen the need for Public Service Broadcasting and Subscription Broadcasting Service to agree on each other's remuneration and a cost structure that is transparent, non- discriminatory and fair. This included a proposition that the Public Service Broadcasting Licensee must offer its channels to all broadcasters. However, the SABC disputed the must -offer aspect, as it is not an obligation in terms of legislation.'80 Furthermore, regulation 6 requires the Public Service Broadcasting Licensee to offer its television programmes, upon request from an Subscription Broadcasting Service Licensee, free of charge and deliver the signal to the Subscription Broadcasting Service Licensee at its own cost. The Subscription Broadcasting Service Licensees would however incur the cost of broadcasting the must carry channels. Any other cost in excess, which is not related to the delivery of the signal or carriage of To arrive at a position that catered for all parties, the Authority resolved in the Position Paper to ensure that there would be no discrimination amongst Subscription Broadcasting Service Licensees, the Authority would exempt both the Public Service Broadcasting and Subscription Broadcasting Service Licensees from paying a fee to the other or receivin financial corn ensation for must -carry or offer obligations. In asting Service Licensees ion programmes as part t a request to the Public Further, in relation to the discussion of the contractual terms, stakeholders highlighted that section 60(3) of the ECA did not grant the Authority powers to ascertain the commercial terms of Must Carry contracts between the Public Service Broadcasting Licensee and Subscription Broadcasting Service Licensees.'8' g P terms regulation 4 of the Regulations, all Subscription Broadc must carry the Public Service Broadcasting Licensee televis of their service offerings and are further required to submi Service Broadcasting Licensee to carry such programmes.182 180 (CASA Regulatory Impact Assessment report on the Must Carry regulations, published on the (CASA website in March 2019, pages 6 -7 181 Ibid, page 7 182 !bid, page 7 51 This gazette is also available free online at www.gpwonline.co.za 262 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 The Public Broadcast Service Licensees should offer their designated television programmes free of charge, and, should deliver the signal to the Subscription Broadcasting Service Licensees at its own cost in an acceptable quality. The Subscri tion Broadcasting Service Licensees will incur the costs of broadcasting the or must carry obligations. Any other cost over and above that delivery of the signal or the carriage of the channels) will be gotiations between the broadcasters themselves. Nonetheless, with regards to universal access, the Regulations have been effective and have ensured that Public Broadcasting Service Licensee's channels are universally accessible. The Regulations have enabled the public, who ordinarily would not have access to Public Broadcasting Service television programmes due to coverage deficiencies, to access Public Broadcasting Service television programmes.'85 The benchmarking conducted indicates that some regulators prescribe fees for must carry obligations. In Italy, for example, Article 27 AGCOM Resolution no. 353/11/CONS, with regard to the costs for transfers of transmission capacity the regulation specifies the range of costs (minimum of 0,010 Euros and maximum of "CD r r r+ 00 00 CO U1 A W Cr cr cr IZ Si: (Z This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 263 Germany cable operators are paid for retransmission of content instead of paying for it. In Estonia, the Electronic Communications Act states that broadcasters offering FTA television services have the right to ask from cable operators a reasonable charge for re- transmitting their television programmes. However, there is no provision on how calculation of costs is done187. In Hungary, the distribution platforms are obliged to carry "a total of four linear audio -visual media services and three linear radio media services of the public media service provider free of charge, with the exception of media service distribution performed by means of broadcasting transmission.188 In Bosnia and Herzegovina, Czech Republic, Denmark, France, Netherlands, Slovak Republic and Spain, the must carry obligations are silent on costs. On the other hand, in countries such as Bulgaria, Lithuania, Romania, Albania, Finland, Iceland, Portugal, Austria, Begium and Switzerland the must carry obligations state that the retransmission must be at no cost. In Lithuana, Article 33(3) of the Law on Provision of Information to the Public states that re- broadcasters and the LRT shall not pay each other for must -carry television programmes189. In Latvia, The Mass Media Law states that for the re- transmission of Must Carry services neither broadcasters nor re- transmission operators may request a fee for Must Carry 190. 'Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 141. 187 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 104. 188 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 128. las Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 145. 190 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 150. 53 This gazette is also available free online at www.gpwonline.co.za 264 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 In Sweden, the provider has the right to charge a reasonable service and maintenance fee for the network. However, audiences are protected from paying extra fees by section 1 of Swedish Radio and Television Act.195 In Slovenia, under cable /satellite platform and terrestrial broadcasting platform, television and radio channels with the status of special importance should be must carried free -of- charge.196In the case of DTT, television and radio channels with the status of special importance are obliged to pay the proportional costs of depreciation and maintenance expenses.197 In Norway, the provisions stipulate that the retransmission of TV 2 shall be based on commercial terms192. This is similar to section 60(3) of the ECA. In Poland, the law stipulates that broadcasters under Must Carry rules cannot demand fees from platform operators for the re- transmission of their services.193 In the Republic of Serbia, Art. 15 of Law on Public Media Services states that the public media service broadcaster is obliged to pay fees to an operator for transmission of these services. The fee and other important issues are regulated by contract.194 191 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 154. 192 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 162. 193 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 167. 194 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, pp. 178 179. 195 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 183. 196 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 187. 197 Council of Europe, "Access to TV platforms: must -carry rules, and access to free -DTT, p. 189. 54 Interest TV (GI TV) channels to be seamlessly available to all end -users of that network provided that no undue burdens are placed on end -users. Further, when determining whether remuneration for the retransmission of the GI TV channels should be provided, the MCA will need to satisfy itself that any remuneration provided can be justified.191 In the UK, the NTL and Crown Castle are required to provide MTS on fair and reasonable terms, conditions and charges. In terms of fair and reasonable terms, conditions and charges, OFCOM follows Article 31(2) of the Universal Service Directive which acknowledges that Member States should be able to determine This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 265 appropriate payment, in respect of Must Carry obligations.198 OFCOM is of the view that the cost of providing MTS is substantial, therefore, for the purpose of investment in infrastructure, other operational costs should be taken into account in order to encourage innovation199, as such, it is important for transmission service providers to charge for MTS that they provide. OFCOM is of the view that this would allow a reasonable opportunity to return of investments. OFCOM does not however determine the charges for MTS, but allows these to be determined in commercial agreements. 198 Universal Services Directive http: / /eur- lex.europa.eu /legalcontent/ EN /TXT /HTML / ?uri= CELEX:32002L0022 &from =EN ission Services to Public Service Broadcasters Proposal to give a Direction setting rrestrial transmission network February 2005, page 8 : Position paper and Draft Regulations, published in Government gazette 31081 of which subscription broadcasting services must carry the television programmes t Service Licensee, Government Gazette 31500, published on 10 October 2008, TV platforms: must -carry rules, and access to free -DTT, p. 162. 55 The Authority decided that the Subscription Broadcasting Service Licensee must submit to the Authority a copy of the Must Carry agreements within thirty (30) days of such signed201. The Authority will not scrutinize the commercial nature of the agreements as that is left to the parties to negotiate. oozsuopein6aa paqiaDsaad ay4 Aq papin6 si 4eyp a6eiaaeD Jo suaaa4 ayn pue 'saappya)le4s atp uaann4ag suoneno6au lepaauauaoD aoj auo atp 6uiag spepuoD Jo suJJOj onn4 ag pinoys aaatp 4ey4 papuinuoD si A4iaotpn`d atp 'A.iaeD 4snua Jo uone4uauaalduai Lpoouas ay4 aoj spepuoD atp Jo sanssi up N Ú 13 ON N N 3 'co' N CI) Q N O 0 ( "D Ç po a D 0.) K D r4 7 O = (D V) ..< v) < n fl- D N D iii: _ Cr 70oó o ó afDO oo O MI 3 C ó r+ C ° v 3 (D ao Ç ó M G re CD O .E0 O t/1 Ñ 3 CfQ D W rxm+ O ñ O (D 3 co O) O r+ r -1 o re Ñ r-F fD O VI O i^ fD 3 This gazette is also available free online at www.gpwonline.co.za 266 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 The Authority considered the size of the Subscription Broadcasting Service Licensee concerned in providing exemption from compliance with the Must Carry regulations. This ensures that the financial viability of the Subscription Broadcaster will not be compromised as broadcasters are encumbered in relation to the size of their operations and the obligation is discharged equitably and fairly as amongst broadcasters.2o3 oZ(iaoylny ay4 Aq lenoadde aoj uoiduaaxa 6uisanba.i aaiou e4ivagns 4snua aasuaoi! apinaas 6unseppeoas uopdia3sqns yssal .io slauueyD (66 auiu-A4uann4 seq 6uiaajjo aDinaas asoynn saasuapn apinaas 6upseppeoa9 uopdiaDsqns o4 alqeDgIde lou si aasuapn 6unseppeoa8 apinaas Dgind ay4 Jo sauauaea6oad uoisinala4 A.iaeo o4 aasuapn apinaas 6unseppeoas uondinsqns ay4 uo uone6i!go au 203 (CASA Must carry Obligations: Position paper and Draft Regulations, published in Government gazette 31081 of 22 May 2008 page 34 2°4 ICASA Regulations: Extent to which subscription broadcasting services must carry the television programmes provided by the Public Broadcast Service Licensee, Government Gazette 31500, published on 10 October 2008, page 6 -7 205 !bid, page 8 56 This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 267 Principles that can be drawn from the above research on the application of the Must Carry obligations are as follows: that even in a digital environment, channels or other services are provided in digital format, and are broadcast and distributed on appropriate networks; and Must Carry obligations are imposed to: meet public interest objectives; safeguard the plurality of opinion and to provide a variety of offers to the public; provide access to specific public service broadcasting content such as public service television channels and free digital terrestrial television channels and specific services for the visually and hearing- impaired population to; facilitate public participation in democratic public affairs; preserve, protect and further develop a country's culture, and to support and sustain the languages of that nation; achieve broad freedom of expression and information to the greatest possible extent; satisfy the information needs of citizens and facilitate their participation in democratic public affairs and preserve diversity of opinions; and provide a service to the extent to which it would otherwise have been made available even if not added. The research undertaken shows that the Must Carry obligations in most of the countries studied aim at ensuring public access to particular content or programme services. In several countries, the free -to -air commercial broadcasters may also be included as Must Carry and not only public broadcasting services, as is the case in South Africa. Furthermore, a range of other types of channels including local, community, regional channels may also be designated Must Carry. The issue of cost This gazette is also available free online at www.gpwonline.co.za 268 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 The key issues addressed above have been central to the broadcasting service licensees responsible for Must Carry Regulations. In the current review the Authority expects stakeholders to assess these mechanisms that have been used by the Authority and to suggest the way forward in terms of the regulation of Must Carry. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 269 6. If the Authority should not play a role in the negotiation of contracts, what are the proposed dispute resolution mechanisms and by when should the agreement be concluded subsequent to receiving a must -offer or must -carry request. 7. What are the compliance burdens associated with Must Carry regulations if any? How can these burdens best be addressed? 00 This gazette is also available free online at www.gpwonline.co.za 270 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019 10. What are the actual costs incurred associated with meeting the Must Carry obligations by the PBS and SBS licensees? To support assertions, kindly proviide a detailed breakdown of costs for the previous 3 financial years. In your response kindly ensure the following are answered: a. What are the cost drivers and associated costs for Must Carry? b. What are the costs (breakdown required) to the PBS licensee for offering must carry channels? c. What are the costs (breakdown required) to the SBS licensees of carrying the channels? This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 13 DESEMBER 2019 No. 42902 271 This gazette is also available free online at www.gpwonline.co.za 272 No. 42902 GOVERNMENT GAZETTE, 13 DECEMBER 2019

Review of the ICASA Must Carry Regulation, 2008 Discussion Document

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