It has been several weeks now that the so-called “must-carry” principle has been a focus of wide public discourse. Must-carry rules in force in other countries impose an obligation on cable and satellite television networks to retransmit to their customers the signals of terrestrial TV broadcasters. Several Georgian non-governmental organizations have drawn on that experience of foreign countries and submitted a package of relevant legislative amendments to the Parliament. For his part, U.S. Ambassador to Georgia John Bass also emphasized this principle in one of his addresses.
Local advocates explain the indispensability of must-carry regulation by the need to support media pluralism in the run-up to the parliamentary elections and to protect customer rights. They bolster their argument, as is customary in Georgia, by citing the practice of developed countries. Their logic flows from the notion that “since developed countries have it that means that that is how it must be here because those countries are much more advanced.”
All this talk about must-carry regulation started after two private TV broadcasters – Rustavi 2 and Imedi – withdrew their programs from the digital Global TV network. Moreover, for several months now, packages offered to customers of the two most popular cable networks in the Tbilisi market – Silknet and Caucasus Online – have not included programming of TV companies Maestro and 9th Channel. With high probability, the created situation smacks of politics and the Georgian civil sector is following its tradition of trying to “ennoble” the existing reality with the introduction of yet another regulation.
The obligation to include a channel in packages offered to cable network customers is a crude infringement on the rights of owners of those cable networks. A cable network owner should be able to decide for itself which channel seems preferable/profitable and which does not. Apart from commercial considerations, an owner has the right to refuse to retransmit this or that channel based on political viewpoint – or any other consideration for that matter. The same holds true for private broadcasters. If owners of private broadcast companies do not want their programming to be retransmitted by a cable or digital network, that is their right. At the end of the day, those broadcast companies will suffer because they will lose a segment of their audience – politically motivated decisions are, as a rule, economically damaging.
Cable network owners will suffer as well because a segment of customers who want to watch Maestro and 9th Channel will find alternative ways to access those TV channels. On the other hand, if must-carry regulation is imposed, any fascist-type group would have the right to demand that its programming be retransmitted too by a cable network operator. It is not clear why any network owner should be stripped of the right to deny the use of its own infrastructure to such an odious group or why a network owner should be forced to act against its conscience.
Supporters of the new initiative believe that media pluralism serves the “public good” and that ownership rights are not absolute. In their view, it is not only acceptable but necessary for the state to restrict the ownership rights of private broadcasters and cable network owners in order to deliver “public good” to the people. When an issue is presented in such a way, we should take into account several, in my opinion, important aspects:
First, the reference to foreign practice in advocating for must-carry regulation is not that compelling because there is significant variance in regulations adopted in Europe and the United States. Of those countries that have adopted must-carry rules, the most interesting experience is that of the United States. The main reason for introducing must-carry rules there, however, was not to ensure media pluralism. Rather, must-carry obligations were imposed primarily to protect smaller local TV broadcast stations which faced stiff competition in the 1970s when cable network operators began offering their own programming to customers through increasingly aggressive promotional campaigns.
In the 1980s, several U.S. cable network operators challenged the constitutionality of the must-carry regulation. After the lower federal courts ruled that the must-carry obligation violated the First Amendment guarantee of a free press, the U.S. Congress in 1992 enacted the Cable Consumer Protection and Competition Act which substantially modified the earlier “must-carry” rules. Under the new law, a local broadcaster either could insist that the cable operator retransmit the broadcast station’s signal to cable subscribers or could forbid the cable operator from retransmitting the broadcast signal unless the cable operator paid a retransmission fee or some other form of compensation. Thus, private broadcasters for the first time were given the option of demanding compensation and negotiating so-called retransmission consent agreements with cable network operators. That means that, in the United States, it is still up to a private broadcaster to decide whether or not to include its own programming in any cable network line-up. Hence, U.S. practice is very different in principle from what non-governmental organizations are demanding in Georgia.
Although cable network operators also challenged the provisions of the 1992 legislation, the U.S. Supreme Court ultimately upheld the new law as constitutional. The Supreme Court ruled that must-carry regulation can be justified on the basis of protecting local over-the-air broadcasting, promoting a diversity of programming sources, and maintaining fair competition in the TV market.
The experience of the United States shows that cable operators after a certain period of time start creating their own channels and programs. According to a recent decision of the Constitutional Court of Georgia, cable broadcasting in Georgia no longer requires a corresponding permit (license) from the state. That means that anyone who so wishes can produce its own television product and build its own cable network without meeting any requirements set by the state.
The introduction of new regulations under such conditions would only impede the development of the cable broadcasting business, which operates on a rudimentary level for now. It is important to bear in mind that it is highly probable that a license will not be required even for satellite broadcasting in the near future (which is something we should demand if we have to demand anything at all). Furthermore, the must-carry principle will lose any sense in 2015 when Georgia plans to switch over to digital broadcasting, thereby allowing transmission of incomparably more channels via one frequency. Given these circumstances, the best chance for achieving broader media pluralism is by further deregulating the communications market.
It is an illusion that introducing must-carry regulation will raise the level of media pluralism. If anyone has a desire to watch both Rustavi 2 and Maestro, there are simple ways of doing that. Indeed, many citizens succeed every day in satisfying such “conflicting” programming desires. Television is not the only source of information. Anyone who wants to receive any kind of information, including political news, can do that by means of the Internet or by reading a neighbor’s copy of Asaval Dasavali newspaper. Those who are not interested in political events also are not likely to care what channels are transmitted by which cable network operator.
But even if we were to concede that the state has the right to restrict the rights of private owners for the sake of the “public good,” then where is that line to be drawn? At what point is such a restriction acceptable and where is it not? Any government can claim any initiative constitutes a “public good” and then disregard private ownership rights to achieve that aim. If the right to private ownership is not absolute, then any democratically elected government would have (conventionally) a mandate to do whatever it likes.
In recent years, we have repeatedly seen how the rights of private owners have been encroached in the name of “state interests.” For the aim of building a major highway, local populations have been evicted from their homes; for the aim of constructing important facilities, land has been confiscated from its owners, and so on and so forth. Even though the state offered certain compensation to most of these displaced citizens, some of them were still against handing over their property to the state.
It is interesting that local non-governmental organizations used to step in to support those same citizens whose ownership rights were infringed by the state. Why is the ownership right of a cable network or a private broadcaster lower in rank than that of a private homeowner or land holder? And why is media pluralism a higher “public good” than a four-lane highway?
If the delivery of political information to each and every citizen (whether or not they want to receive that information) is essential for the democratic future of the country, then why should we not oblige each and every citizen to post election programs of each and every so-called qualified political candidate on the walls of each and everyone’s own flat? One could just as “logically” argue that obligation would automatically create an obligation for qualified candidates to publish their election programs which, in its turn, would be a step forward in improving the Georgian political culture.
We could also oblige each and every print edition covering political issues to increase its print run up to a number that would meet a ratio of one copy per three adults and then, correspondingly, oblige citizens to read that political coverage very attentively. If we were to add to that an obligation to listen to radio news bulletins every odd hour, we could then be at ease. For that would mean that, come October, the Georgian nation will make an informed choice.
This article first appeared in Tabula Georgian Issue # 105, published 18 June 2012.