National Broadcasting Council report on activities for 2021 – findings regarding observance of the mustcarry/mustoffer rule

In compliance with a statutory duty, the National Broadcasting Council has released a report on its activities for 2021.  

• The National Broadcasting Council Report on Activities for 2021 and related Fundamental Radio and Television Issues in 2021 are a major source of information about the most important tendencies and processes emerging on the audiovisual media market in Poland. 
• Among the issues addressed in the report is the extent of observance of the #mustcarry / #mustoffer rule. According to this rule, an operator that distributes television channels must include the channels TVP1, TVP2, TVP3, Polsat, TVN, TV4, and TVPuls in the range offered. The broadcasters of these channels may not withhold the signal or expect remuneration of any kind in return for providing them.  

The principal findings regarding observance of the MCMO rule are as follows: 

• Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code is still to be transposed. 
• The National Broadcasting Council is proposing requiring an operator that distributes the channels to provide all television channels disseminated digitally in the form of terrestrial broadcast in nationwide multiplexes. Currently, this obligation applies to seven channels. 
• The view of the National Broadcasting Council is that the mustcarry / mustoffer rule should also entail a #findability rule, i.e. “that a channel is findable due to being appropriately displayed in an electronic program guide (EPG) and using website search systems”.  
• Broadcasters that have a mustoffer obligation but do not give access to channels to operators that distribute channels through OTT or streaming are in breach of a statutory obligation. 
• Copyright must be exercised in a manner compatible with the MCMO rule. 
• MCMO channels must be available in every package that an operator has on offer. They do not have to be included in more expensive packages or premium thematic packages. 
• Placement of a broadcaster’s advertisement in #DAI technology cannot be a condition for a broadcaster to consent to distribution of a MCMO channel. 
• It is not possible, under the Act on Radio and Television Broadcasting, to make a broadcaster’s consent to distribution of a channel conditional on an operator’s use of the broadcaster’s content delivery network (CDN). 

“Due to the tendency to concentrate, for instance by combining the functions of operator and broadcaster, a large number of harmful trends have been observed with regard to access to pay television. Above all, there is differentiation of rates for channels available to operators for distribution. There is also a practice of exploitation by broadcasters of a monopoly by forcing operators to purchase channel packages while not giving them the option of purchasing single channels offered by the broadcaster.”