Decision No 72 of February 2nd, 2012

09.03.2012


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On the conditions for issuing and amending notice of retransmission
Issuer: Consiliul National al Audiovizualului
Published in: The Official Gazette No 118 of 16TH, February 2012

Having regard to the dual role of the National Audiovisual Council, as the guarantor of the public interest and as single regulatory authority in the field of audiovisual media services,
For the purposes of specifying the procedure and conditions for the issue and amendment of the notice of retransmission,
Respecting the rights of broadcasters to authorise retransmission of programme services by distributors of content services under Article 113 (e) of Act No 8/1996 on copyright and related rights, as further amended,
Pursuant to Articles 10 (3), 17, 74, 75 (1) and (2) and art. 82 of the Audiovisual Law No 504/2002, with its subsequent amendments and supplements;

The National Audiovisual Council has adopted the following decision:

CHAPTER I
General provisions

Art. 1
(1) For the purposes of this Decision, the terms and expressions below have the following meanings:
a) notice of retransmission — legal act issued by the National Audiovisual Council to a distributor of program content services, on the basis of which it obtained the right to retransmit, through an electronic communications network, television and/or radio programme services;
b) representative — the legal representative or any person empowered by power of attorney to employ the distributor of programme services in relation to the National Audiovisual Council;
c) the NAC, the National Audioviual Council;
d) ANCOM (The National Authority for Administration and for Regulation in Comunications;
e) ARMA — the Romanian Association for Measuring Audiences;
f) must carry — principle whereby distributors of content services are required to include in the provision of services and to retransmit, having regard to the provisions of Article 74 of the Broadcasting Act No 504/2002, as amended (hereinafter referred to as the Broadcasting Act, programme services covered by Section 82 of the same act, under the conditions laid down by it.
(2) In this decision are also applicable to the definitions given in Article 1 of the Broadcasting Act.

Chapter II
The procedure and the conditions for issuing, amending and withdrawing the notice of retransmission
Art. 2
(1) Any person wishing to distribute television and/or radio broadcasting programme services must request, under the conditions provided for in Section 74 of the Broadcasting Act, the issuing of the notice of retransmission.
(2) In order to issue the notice of retransmission, the applicant shall submit the NAC the following documents:
a) application, in accordance with the model set out in Annex 1, which forms an integral part of this Decision; the model can be downloaded from the website of the NAC, at www.cna.ro;

b) the standard certificate, in copy, by means of which ANCOM proves that the applicant provides electronic communications networks or services, under ANCOM Decision No 338/2010 on the general authorisation regime for the provision of electronic communications networks and services;
c) the structure of supply of retransmitted programmes services, hereinafter referred to as the services, in accordance with the model provided in Annex 2, which is an integral part of this Decision; The supply of services must comply with the provisions of Art. 82 of the Broadcasting Act in accordance with the procedure described in Chapter III;
d) acceptance of retransmission or, where appropriate, the retransmission contract in copy; If they are written in a language other than Romanian, the distributor of content services will submit them in copy and with a certified translation;
e) the delegation of power of attorney for legal representative or the power of attorney for the designated person to commit the distributor of programme service in the relation to NAC.
(3) The applicant person who is a Romanian trader shall enclose with the application file also the following documents:
a) a certificate of registration in the Trade Register Office of the legal person or the natural person authorised, authorised family association, of the individual enterprise or family business in copy;
b) the articles of association, with all subsequent amendments and supplements, accompanied by certificates of comment, in copy, or a certificate of good standing issued for that purpose by the Commercial Registry Office within 15 days prior to dispatch of the notification in the original;
c) the applicant’s identity document, as authorized natural person, in copy.
(4) Foreign person applicants with their main headquarters in the Member States of the European Union or of the European Economic Area will annex to the application file and the following documents:
a) documents equivalent to those referred to in paragraph (3) (a) and (b);
b) contact address in Romania of the person appointed to represent the applicant.
(5) The copies of documents referred to in paragraphs (2) and (3) shall be certified by the signature of the legal representative.
Art. 3
(1) To the extent that the application file is complete, it shall be endorsed by the Bureau of Licenses and Authorizations and it shall be registered at the Registry of the NAC.
(2) The applicant may start to retransmit the program services only after obtaining the opinion of retransmission of the NAC.
Art. 4
The notice of retransmission shall contain:
a) the number and date of issue of the opinion of retransmission;
b) the identification details of the holder of the retransmission;
c) the name and type of electronic communications network;
d) the central station headquarter;
e) the areas in which programme services are distributed;
f) the number of programmes retransmitted in network services;
g) the number issued by ANCOM – standard certificate;
h) the structure of supply of services, with their individual identification.
Art. 5
(1) Distributors of program services are obliged to inform the NAC regarding any change in the data declared, documents other than those provided for in Articles 2 (2) (c), within 30 days of the occurrence of the change.
(2) In the case of changes in the structure of the services on offer, the distributor of programmes will submit the following documents:
a) the application by using the standard form set out in Annex 1;
b) the structure of supply of services according to the model set out in Annex 2;
c) the acceptance of retransmission or, where appropriate, the retransmission of programme services only subject to amendment.
(3) Amendments to the structure of supply of services may be carried out under the conditions laid down in Article 74 (3) of the Broadcasting Act. CNA shall decide on amendment transmission opinion within 30 days of the request.
Art. 6
Where applicable, in accordance with Article 75 (3) of the Audiovisual Law, CNA decides to temporarily restrict the right of free retransmission of programmes for a given service, distributors of content services the service will suspend the retransmission of programme services until the date specified in the decision.
Art. 7
The notice of retransmission shall be withdrawn in the following cases:
a) as a result of the application of the provisions of Article 74 (4) of the Broadcasting Act;
b) by reason of the termination of the right to provide electronic communications networks or services, ordered by decision of the President of ANCOM, under the conditions specified by law;
c) at the request of the proprietor.
Art. 8
(1) If the notice of retransmission holder intends to dispose to a third party electronic the communication network , the third party and the holder shall submit with the NAC the following:
a) the withdrawal application of the notice of retransmission;
b) the application of the new owner of the electronic communications network for the issuing the notice of retransmission; For the purposes of issuing the notice of retransmission, the provisions of articles 2 and 3 shall apply.
(2) The changes following the approval of applications laid down in subparagraph (1) shall be placed in the public domain on the CNA’s website at www.cna.ro
Art. 9
The rights stipulated under the notice of retransmission may not be forwarded to third parties.

CHAPTER III
The procedure for implementing the
must carry system

Art. 10
(1) The list of television programmes services broadcast by broadcasters under the must-carry regime in keeping with Article 82 of the Broadcasting Act, hereinafter called the must carry list, is published annually by the CNA, no later than 1st of February.
(2) The must-carry list also includes programme services declared to be free to retransmission by each private broadcaster, in descending order of viewing annual index, measured in accordance with the procedure set out in Article 45 of the Audiovisual Act and communicated through the ARMA, to the broadcaster in question.
(3) The annual indexes of viewing figures referred to in paragraph (2) shall inform the NAC by ARMA by 15th of January for the preceding calendar year, under the conditions laid down by law.
Art. 11
(1) For the purposes of inclusion in the must carry list, the broadcasters concerned will declare to the CNA, no later than 15th of January each year, for a yearly calendar of programme services which of the program services will be free to retransmission and without technical or financial conditionality, following the model of the declaration in Annex 3, which forms an integral part of this Decision; Requests submitted after 15th of January shall not be taken into account.
(2) The statement provided under par. (1) shall be valid until 15th of January of the following year.
Art. 12
(1) The must carry list shall be published on the website of the NAC at www.cna.ro under the conditions of art. 10 and 11.
(2) The must carry list shall be effective until program services distributors obtain a new agreement from the NAC on the modifications of the program service structure offer under the new must carry list.
(3) In accordance with Article 82 (1) of the Broadcasting Act, the must carry list is applicable to distributors of program services, with the exception of those using public networks with access for retransmission by satellite direct-to-home type (DTH).
Art. 13
(1) Within 7 days of the publication of the must carry list, distributors of programme services shall request, in writing, broadcasters, for each electronic communications network in service, the approval for the retransmission of the services for all annual programmes which they are obliged to retransmit according to Art. 82 of the Broadcasting Act.
(2) If within 15 days of the publication of the must carry list, the broadcaster fails to respond in written to the request referred to in paragraph (1), the request of the retransmission shall be deemed to be tacitly granted.
(3) In the situation stipulated in paragraph (2), to obtain/amendment of the notice of retransmission service, the distributor will forward to the NAC, the proof of application acceptance of retransmission pursuant to Section 5 (2).
(4) Within 30 days after publication of the must-carry list, programme services distributors are obliged to introduce in their offer, the programme services meeting the must-carry regime.
Art. 14
(1) Broadcasters must provide distributors of program services free and unconditional access to the signal unencoded/non-encrypted, under the provisions of Art. 82 of the Broadcasting Act.
(2) Each distributor programmes should ensure that for each service programmes with must-carry regime, the same signal quality retransmitted in the electronic communications network, with respect to technical conditions similar to the broadcaster’s signal as acceptance granted.
Art. 15
If, during the year, a broadcaster either gives up or no longer fulfils the legal must carry conditions for a given service programmes, CNA will make this information public on its website.

CHAPTER IV
Penalties, transitional and final provisions

Art. 16
Non-compliance with the provisions of this decision draws sanctioning as provided for in the Audiovisual Act.
Art. 17
(1) For the year 2012, the time limits referred to in Articles 10 and 11 are delayed as follows:
a) the deadline for communicating the audience measured over the year 2011, stipulated in art. 10 paragraph (3), shall be 3 days from the date of publication of this Decision in the Official Gazette of Romania Part I;
b) the deadline for lodging the declaration stipulated in art. 11 paragraph (1), shall be 5 days from the date of publication of this Decision in the Official Gazette of Romania Part I;
c) the deadline for publication of the list must carry, stipulated in art. 10 paragraph (1), shall be 7 days from the date of publication of this Decision in the Official Gazette of Romania, Part I.
(2) The time-limits referred to in Article 13 shall start to run on the date of publication of the list must carry, calculated in accordance with paragraph (1) (c).
(3) Until the completion of the procedure for applying the must-carry regime for 2012, under this Decision, distributors of program services shall have to broadcast programmes in the existing list on the CNA’s website at www.cna.ro
Art. 18
This Decision shall be published in the Official Gazette of Romania, Part I.
Art. 19
On the date of entry into force of this Decision is hereby repealed Decision No 12/2003 of the National Audiovisual Council on issuing notice of retransmission, published in Official Gazette of Romania Part I No 49 of 29 January 2003, as amended.

President of the National Audiovisual Council,
Răsvan Popescu

Bucharest, 2nd of February 2012.
No. 72.