Must-carry

Authors: Luã Fergus and Laila Lorenzon

Must-carry legislation is one of the instruments used in the regulation of cable TV to promote diversity and ensure the broadcast of channels that would not normally be included in the operators’ bundle (Perry, n.d.)¹. The must-carry rules appeared in 1965, in the face of the expansion of the cable TV service, to avoid the growing power of the cable TV providers from ending up suppressing the local broadcasters (Valente, 2018)². Historically seen as a guarantee that broadcasters would be distributed by cable television providers, the must-carry rules became more complex over time. In 1968, the U.S. Court of Appeal issued the first decision (Black Hills Video Corp. v. FCC, 1968)³ declaring the legitimacy of the must-carry, according to which it understands that its rules preserved local broadcasting without thereby violating the freedom of expression guaranteed by the First Amendment to the United States Constitution. From then on, a longstanding debate was launched on the importance of must-carry rules (Pieranti, Festner, 2008)⁴.

This discussion recalls the debates on net neutrality and the obligation for internet services providers to ensure that all information that runs over the network must be equally treated. Here we can draw a parallel between the power of cable TV services and the power of ISPs, where both have the technical capacity and economic incentives to restrict their competitors and/or favor their own business or partners (Belli, 2017)⁵. That is why the debates on freedom of expression and monopolistic tendencies are so inherent in both must-carry discussions and those of network neutrality (Patrick, Scharphorn, 2015)⁶.

References

1. Perry, Audrey. (n.d.). Must-Carry rules. Available at: https://www.mtsu.edu/first-amendment/article/1000/must-carry-rules
2. Valente, J. (2018). Regulação democrática dos meios de comunicação. São Paulo: Fundação Perseu Abramo.
3. Black Hills Video Corp. v. FCC 8th Cir. Aug. 7, 1968.
4. Pieranti, O., Festner, S. (2008). Estudo comparativo de regras de must carry na TV por assinatura. Agência Nacional de Telecomunicações, ANATEL.
5. Belli, L. (2017). Net Neutrality, Zero-rating and the Minitelisation of the Internet. Journal of Cyber Policy, 2(1), 96-122.
6. Patrick, A., Scharphorn, E. (2015). Network Neutrality and the First Amendment. Mich. Telecomm. & Tech. L.   Rev.,22, 93. Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1209&context=mttlr.