La regionalización en Colombia y sus beneficios para el desarrollo

technically and economically founded contract offers made by the media service providers regarding the provision of their regional or local audiovisual community media services.

(2) The media service distributor shall – in respect of no more than two further media services – be subject to an obligation to contract, regarding the technically and economically founded contract offers made by the media service provider with a local reception area, regarding the provision of its audiovisual media service, provided that, based on the data in the register of the Authority, the reception area of the given media service provider falls within the given media service distributor’s reception area or within the separate service area as per Paragraph (4), and that it provides its media service specifically for the given area’s population. Pursuant to Paragraphs (1)-(2), the media service distributors performing their services via satellite or terrestrial broadcasting networks shall not be subject to the “must carry” obligation in respect of the local media services subject to the “must carry” obligation.

(3) Over and above the media services falling under the “must carry” obligation defined under Article 74 (1) and Paragraphs (1)-(2), the Media Council may, ex officio or upon the media service

provider’s request, define in a regulatory decision no more than two additional linear public media services or one linear community media service, serving the media policy objectives of public interest laid down in this Act, in respect of which the media service distributor has an obligation to contract according to a technically and economically founded contract offer. When passing its decision, the Media Council shall assess the extent by which the decision contributes to the diversity of the media market and information, to the achievement of the public service objectives defined in this Act and to the preservation and improvement of culture. Media service distributors shall not have the legal status of a client in such regulatory procedures.

(4) If the transmission system of the media service distributor, as per Paragraphs (1)-(3), consists of parts serving several areas that can be technically distinguished from each other, the media service distributor shall be subject to the obligations, as per Paragraphs (1)-(3) mutatis mutandis, in respect of each technically distinguishable area separately. As far as the “must carry” obligation is concerned, technically distinguishable area shall mean the geographical area served by those parts of the transmission system within which no other media service can be installed into or removed from the transmitted complex programme signal under economically or technically reasonable conditions, in other words within such an area all users choosing the same programme package shall have access to an identical programme structure.

(5) For the purposes of Paragraphs (1)-(2) and (7), the media service provider shall be considered as being entitled to be the beneficiary of the “must carry” obligation in respect of that media service provided by it

a) in respect of which it requests the media service distributor to distribute the media service, and b) in respect of which it proceeded in good faith and in line with the requirements of fairness in the course of the contract offer procedure and the negotiations held to prepare the conclusion of the contract, and it negotiated on the merits regarding the responses, statements and requests for information given to the media service distributor in connection with the contract offer of the media service provider, in order to bring about the conclusion of the contract.

For the purposes of Paragraph (3), the Media Council may appoint only linear community media services provided by media service providers other than those providing linear community media services under Paragraphs (1)-(2).

(6) For the purposes of Paragraphs (1)-(4), neither the media service distributor’s information channel nor such media service shall be taken into account in the provider of which, or in the owner of the provider of which the media service distributor undertaking or its owner has a qualifying holding. (7) The influential media service distributor shall have an obligation to contract in respect of three further linear community audiovisual media services at most in addition to those defined under Paragraphs (1)-(3), according to the technically and economically founded contract offers made by the media service providers for distributing their audiovisual community media services.

(8) The obligation to contract must be performed according to the order of the offers. The order of the contract offers, as far as the performance of the obligation to contract is concerned, shall be determined on the basis of the day when the written contract offer regarding the distribution of the media service was received (in an evidenced manner) by the media service distributor, or on the basis of the day when the media service distributor obtained knowledge (in an evidenced manner) of the verbally communicated contract offer. The fact of receipt of the offer by the media service distributor or of obtaining knowledge of the offer by the media service distributor shall be evidenced, verified in case of any doubt, by the media service distributor. If, in the course of joint fulfilment of the “must carry” obligation specified under Paragraphs (1) and (2) or on the basis of the “must carry” obligation specified under Paragraph (7), the media service distributor is only obliged to transmit one authorised media service provider but several authorised media service providers simultaneously also require transmission, the media service distributor shall be obliged to assess the authorised media service providers’ contract offers, impartially and based on objective criteria, under a public and transparent procedure.

(9) Offers may be rejected on objective technical grounds if the service requirement indicated in the offer jeopardises the safety of operation or the unity of the network.

(10) Offers may be rejected on objective economic grounds if the service claim indicated in the offer jeopardises the operation of the media service distributor and thereby the agreement is impossible.

(11) In case of any doubt, the media service distributor shall be responsible to prove that transmission of the programme flow is either economically or technically unfounded.

(12) The Media Council shall notify the affected media service providers about the launch of the regulatory procedure as per Paragraph (3) in an order. Such notification shall only contain the subject-matter of the case and a brief description thereof. The Media Council shall publish such notifications through public notices. In the course of such a regulatory procedure only clients participating in the procedure shall be entitled to exercise the respective client rights. The Media Council shall announce its regulatory decision issued in the course of this procedure through public notices.

(13) Taking into account the assessment criteria defined under Paragraph (3), the Media Council may amend its regulatory decision as per Paragraph (3) if this is justified by a substantial change in circumstances. The provisions of Paragraph (12) shall apply to the communication of the amended decision.

(14) The submission of a statement of claim within the framework of the judicial review of the regulatory decision specified under Paragraphs (3) and (13) shall not have a suspensive effect on the enforcement of the decision, and the court shall not suspend the enforcement of the regulatory decision challenged by the statement of claim. The decision shall be enforceable immediately, irrespective of the filing of the statement of claim.

(15) The Media Council may, ex officio or on the basis of a complaint specified in Article 145, may monitor the due application and performance by the media service distributor of the provisions laid down in Paragraphs (1)-(11) within the framework of general regulatory supervision.

(16) If the Media Council concludes, as the result of the regulatory inspection, that the media service distributor had violated the provisions laid down in Paragraphs (1)-(11) and the violation may be rectified by termination of the violating behaviour or by restoring the lawful situation – without completing another regulatory procedure, the Media Council shall notify the media service distributor about the violation of law and shall, in the form of an order, oblige the media service distributor to terminate such violation by setting a deadline of at least twenty days for compliance and including a warning on the consequences of failure to comply.

(17) If the deadline set in the notification mentioned in Paragraph (16) expires without result or if the provisions contained in Paragraph (16) cannot be applied, the Media Council shall ex officio launch the proceeding falling within its own competence.

(18) The contents and framework of the “must carry” obligation of the public media service designated according to Paragraph (3) by the regulatory decision of Media Council, as well as the respective rights and obligations shall remain unaffected even if the number of “must carry” public media services specified in Article 74 (1) are reduced subsequent to the decision on the designation as per Paragraph (3) became final.

Article 76 (1) The media service provider shall be entitled to initiate the legal dispute procedure as