Regulatory framework for orderly execution of the must-carry rule as applied to cable and satellite operators

• Main Author: Uy, Lancaster L.
• Format: text
• Language: English
• Published: Animo Repository 2008
• Subjects: Cable television—Law and legislation; Direct broadcast satellite television—Law and legislation; Communication; Law
• Online Access: https://animorepository.dlsu.edu.ph/etd_masteral/7134
• Institution: De La Salle University

The must-carry rule mandates that cable companies must carry various local and public television (TV) stations within a cable provider's service area. The purpose behind it is not to favor nor disadvantage speech of any particular content, but rather to avoid unfair competition and to ensure access to free TV programming. It is the State's police power measure to greatly favor the constitutional assurance of freedom of speech by preventing cable and satellite operators from cherry picking local TV stations, and at the same time, it also provides TV viewers with more choices in programming. Under present circumstances, the gall applications of the must-carry rule provides a blanket authority for cable and satellite operators to rebroadcast local TV broadcasting companies' program without prior consent from the originator. When filed with a copyright infringement suit, cable and satellite used the must-carry rule to justify their illegal acts. They asserted that its rebroadcasting activities were only made pursuant to the mandatory carriage requirement imposed upon them. On the other hand, local TV broadcasters anchored its claim on the fact that it owns its broadcast signals and should be sufficiently compensated if any other entity intends to broadcast the same. After a thorough research on the issues presented, it is the conclusion of this study that local TV broadcasting companies possess the exclusive right to prevent, prohibit, or authorize the retransmission of their broadcasts. More specifically, Section 177.7 of Republic Act No. 8293, also known as the Intellectual Property Code of the Philippines, provides that this exclusive right of TV broadcasters extends to all types of "communication to the public." As defined, it includes the act of making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them. These provisions in law make the prevalent practice of cable and satellite operators in retransmitting local TV broadcast signals to its paying subscribers a direct infringement into the exclusive rights of the local TV broadcasting companies and, hence, prior consent is a prerequisite to the retransmission of its signals. However, a distinction must be made between a) non-distant signals and b) distant signals of local TV broadcasters. The difference lies in the fact that while cable and satellite operators are required to carry non-distant signals by the must-carry rules, they are not expected to carry distant signals. It is the view of the researcher that in rebroadcasting of non-distant signals, prior consent is obtained through the local TV broadcasters' acquiescence to be included under the must-carry rule. Under this scheme, local TV broadcasters may not ask for any retransmission consent fees because cable and satellite operators are performing activities in furtherance of public interest. However, having said earlier that local TV broadcasters have the exclusive rights over their broadcasts, they must be given an equal alternative to opt-out from the coverage of the must-carry rule and have the right of retransmission negotiated separately with any interested cable or satellite operator. For the second type of signals, the distant signals, it is imperative that local TV broadcasters be sufficiently compensated, in the form of retransmission consent fees. Cable and satellite operators open new markets where the local TV broadcasters did not intend to enter into. Most importantly, cable and satellite operators would now be providing for added service without necessarily having to defray additional costs for the sourcing of the programs. The main output of this study is a joint memorandum circular that may be implemented by the National Telecommunications Commission (NTC) and the Intellectual Property Philippines (IPP). The recommended regulatory framework limits the application of the must-carry to put into consideration the intellectual property rights of TV broadcasters and the resultant obligations on the part of cable and satellite operators (Section 3). The recommendation also carries with it the imposition of compulsory licensing regime in case the parties fail to agree (Section 4) and specific provisions implementing and penalizing unauthorized retransmission which are based on Section 177.7, 171.3, and 216.1 of the Intellectual Property Code of the Philippines (Section 5).