Abstract
The emergence of new technological platforms to access online services and content have transformed the media landscape dramatically. They require policymakers to reexamine the decades-old regulations traditionally addressed to broadcasters and telecommunications providers. Must-carry, retransmission consent, and “carry one, carry all” rules in particular require reconsideration, if not reform.
 Must-carry regulation mandates cable and satellite pay TV providers to retransmit free-to-air broadcast programming. Such regulations have been adopted around the world, including the United States, Mexico, and France, the subjects of this article. Policymakers in these three countries have offered a variety of justifications for such rules, including the promotion of competition, local news and content, viewers´ rights, and content diversity.
 Recent data and case law, however, strongly suggest that emergent platforms to access online services and content undermine the standing justifications for must-carry, retransmission, and “carry one, carry all” rules.
 This Article argues that policymakers should consider other regulatory mechanisms to achieve the original reasons for such rules. The dramatic increase in the variety of devices (e.g., TV, tablet, mobile phones, smart TVs), service and content distributors (e.g., free-to-air TV, cable TV, internet), and service providers (e.g., broadcasters and “over-the-top” internet providers) strongly suggests that policymakers must reconsider the current approach. But any amendment to current regulation will depend on internet penetration and access to new video distribution platforms in a given geographic area. That is, without internet access, free-to-air TV might continue to be an important platform for service and content distribution.
Highlights
Free-to-air television has been considered an important service that confers social value
Must-offer rule, which obliges free-to-air TV or radio stations to provide their programming for carriage by telecommunications network operators
Free-to-air TV services have long enjoyed the nature of service with social value
Summary
Free-to-air television has been considered an important service that confers social value. It found that the Copyright Office had held that internet retransmissions were not cable system services, providing more grounds for its decision Both the ivi and French PlayTV cases, as well as the criteria adopted by the Mexican regulator evidence that there is tension between the reasons of must-carry rules when they were enacted and their applicability upon new platforms, as will be discussed in Part IV. Regarding the denial of copyright holder’s right to a royalty payment for the carriage of their broadcasted works, the Mexican Supreme Court deemed that it is not a case of retransmission of the signals, provided that these works are distributed through pay-TV companies at the same time and in the same area as the free-to-air TV channels. Discoverability should be part of further research to duly assess the need for promoting public policies on discoverability as a complement or in lieu of mustcarry regulation
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