Who is obliged to comply with the must-carry obligation and what is it about?
The reshaped must-carry obligation is applicable not only to cable operators, but to all the operators who retransmit channels, including satellite, Internet and mobile operators. The must-carry obligation imposes on each operator an obligation to retransmit seven channels listed in the broadcasting law i.e. three public channels, including TVP1, TVP2 and a regional channel of Telewizja Polska S.A., and four commercial channels, including TVN, TV4, TV Puls and TV Polsat. These seven channels are still broadcasted via analog frequencies but shall be available soon via digital multiplexes.
What is a must-offer obligation?
Broadcasters of the channels covered by the must-carry obligation are obliged to give operators access to their channels upon the request of the operator within 14 days (must offer obligation). The broadcaster may not ask the operator to pay any licence fee or stipulate other conditions.
Broadcasters and operators may be in a difficult position
Both, operators and broadcasters must comply with the new broadcasting law regulations; if they don't, the Chairman of the National Broadcasting Council may impose hefty fines (of up to 50% of the fee paid by the broadcaster for the use of frequencies or 10% of their income generated in the last tax year). On the other hand, broadcaster claim that they do not always have copyrights for retransmitting programmes e.g. via Internet or mobile technologies. If that is so, then the broadcasters (and operators) might be in a difficult position: either they will fail to comply with the broadcasting law or they could be held liable for a copyright infringement.
Why the obligation was imposed?
This is to note that the Member States are allowed to impose a must-carry obligation on the basis of Directive 2002/22/EC on Universal Services. The Polish regulators decided to adopt the must-carry/must offer obligation as part of its analog switch off strategy - as the abovementioned 7 channels will soon be available only via DVB-T standard, the viewers that do not have a suitable device for DVB-T (a TV or set top box) may still be able to receive the signal via operators.
