UPC must immediately consider a request made by the radio programme provider, Betaco, to grant it access to cable for its radio station, 8FM. The latter broadcasts by wireless and through Essent’s cable network in parts of the province of Noord-Brabant. UPC controls the cable network in Eindhoven and surroundings. However, broadcasting legislation and guidelines such as those which OPTA has drawn up, make it mandatory for broadcasting providers, such as UPC, to grant programme providers (such as Betaco) access, if they submit a reasonable request. Betaco has been trying to obtain access since as long ago as December 1996.
There are only three reasons why access may be refused. There could be a danger of the network (or part of it) malfunctioning (technical integrity), a capacity shortfall or the programme provider’s refusal to pay a cost-oriented tariff. UPC refused to consider the 8FM request, because the relevant programming council had advised against it on a number of occasions. The views expressed by the programming council are regarded by UPC as so authoritative that they should always be observed. In addition, UPC refers to capacity shortfalls and technical integrity.
OPTA does not believe that the first two points constitute grounds for refusal. Moreover, it is clear that UPC has disregarded advice provided by the programming council in the past. This is why an order has been issued making it mandatory for UPC to consider the request and to make an offer to 8FM.
OPTA will recommend that UPC and the programming council draw up an unambiguous, transparent procedure setting out how such requests are to be dealt with. In addition, the programming council needs to indicate which 25 programmes constitute part of the standard plan and which do not. The programming council would then be able to provide advice with regard to those 25, which would weigh heavily. UPC would then be able to make its own decisions concerning the remaining broadcasting stations.