MEDIA

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GOVERNMENT REGULATION OR SELF REGULATION LIMITED
SCOPE FOR SELF REGULATION? A PRESENTATION BY
ASHOK MANSUKHANI President MSO Alliance 8th
September, 2006.
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• The history of Broadcast Regulations in India is
  one of the missed opportunities.
• In 1995 the Supreme Court of India in the famous
  Cricket Association of Bengal case held that
• a) The airwaves or frequencies are public
  property. Their use has to be controlled and
  regulated by a public authority in the interests
  of he public and to prevent the invasion of their
  rights.
• b) A citizen has a fundamental right to use the
  best of means of imparting and receiving
  information. However, this right to have an
  access to telecasting has limitations on account
  of the use of the public property, viz. the
  airwaves.
• Government shall take immediate steps to
  establish an independent autonomous public
  authority representative of all section and
  interests in the society to control and regulate
  the use of the airwaves.

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• In 1997 the Government introduced the Broadcast
  Bill.
• In the statement of objects and reasons, the
  Government observed that The bill needs to
  establish an autonomous Broadcasting Authority
  for the purposes of facilitating and regulating
  broadcasting services in India so that they
  become competitive in terms of quality of
  services, cost of services and use of new
  technologies.
• In fact the Broadcasting Bill 1997 was clearly
  intended to grant licencees for Broadcasting
  Services under 7 categories
• Terrestrial Radio Broadcasting.
• Terrestrial Television Broadcasting.
• Satellite Radio Broadcasting.
• Satellite Television Broadcasting.
• Direct to Home Broadcasting.
• Local Delivery Services.
• Such other services as may be prescribed.

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• While the bill intended to establish an
  independent authority , in fact it was intended
  to actually control the broadcasting scenario,
  specially the satellite broadcasting.
• The statement of objects and reasons stated that
  most of these channels are foreign entities and
  the programmes are uplinked from outside the
  countries without any regulations through law of
  land, while Indian entrepreneurs and Indian
  companies are not permitted to own either
  television or radio station.
• Thus a key objective of the Broadcasting Bill
  1997 was to create a level playing field for
  Indian entities.
• This bill did not get passed by the Parliament.

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• The Third attempt of the Government was even more
  ambitious. The Communication Convergent Bill
  2001 proposed to establish a structured
  mechanism to promote, facilitate and develop in
  an orderly manner the carriage and content of
  communications (including broadcasting,
  telecommunications and multimedia) in the
  scenario of increasing convergence of
  technologies.
• The bill intended to set up an autonomous body to
  be known as the Communications Commission with
  wide ranging powers, duties, and functions
  including licensing and registration power and
  creation of regulatory mechanism for the telecom,
  information technology and broadcasting sectors.
  
• The main purpose of the bill was to promote
  competition and take measures to protect consumer
  interest and enforce universal service
  obligations.
• A key objective of this bill was to lay down code
  and technical standards and norms to ensure in a
  technology neutral manner the complete and
  interoperability of services and networks
  facilities.

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• This bill was obviously ahead of time and
  naturally fell through.
• In January 2004 the Telecom Regulatory Authority
  of India (TRAI) was appointed as the Broadcast
  and Cable Regulator.
• In the last 2 ½ years TRAI has issued a series of
  Tariff Orders and amended Interconnect
  Regulations which govern today the relationship
  between various service providers and also
  intended to serve public interest including price
  control of pay channels.
• On 20th March, 2006, TRAI went beyond its
  recommendations for unified licensing regime and
  suggested a converged regulatory regime.
• TRAI observed that the stating point for this
  exercise should be the Communication Convergence
  Bill 2001.

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• TRAI suggested that content regulation should be
  kept out of the purview of the converged
  regulator.
• It further suggested that the recommendations on
  unified licensing issued on January 13, 2005,
  should be approved at the earliest and the entry
  fee should come down from Rs.107 crores to Rs.5
  crores which can be reduced to Rs.0.30 crores
  after five years.
• The Regulator also suggested greater flexibility
  in spectrum allocation to take full advantage of
  new services and new technologies for existing
  services that may evolve from time to time.
• A key point in the January 13, 2005,
  recommendations was to enable customers to get
  all telecom services including voice, data, cable
  TV, DTH, radio broadcasting through a single wire
  or wireless medium from a unified licensed
  operator.

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• The new Broadcast Bill intends to achieve three
  objectives
• To provide legislative sanction retroactively to
  Government guidelines on various regulatory
  aspects such as television channels Uplinking /
  Downlinking, private FM Radio and Community
  Radio, DTH, Teleport, etc.
• To set up a new Broadcasting Regulatory Authority
  of India and delegate the regulatory functions
  presently being performed by the Ministry of IB
  to this new authority.
• To incorporate the provisions of the existing
  Cable Television Networks Regulation Act in the
  new legislation through appropriate repeal and
  savings clauses and provide for licensing of
  cable operators.

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• The Bill also intends to enable
• Regulation on Cross media ownership and
  restrictions on accumulation of interests to
  provide for competition and plurality of views.
• Minimum domestically sourced content in foreign
  channels to promote indigenous media /
  entertainment industry, particularly in the field
  of animation and gaming etc.
• Minimum obligations on all channels for public
  service broadcasting in their programme and
  advertising content.
• The Bill brings the entire broadcasting sector
  under a tight licensing regime ending the present
  day untrammeled growth which has led to 68
  million customers accessing cable and 2 million
  DTH.

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• The Bill has one significant omission from the
  direction of the Supreme Court in the Cricket
  Association of Bengal case of 1995 as it intends
  to provide for the establishment of the
  independent authority to be known as
  Broadcasting Authority of India for the purpose
  of regulating and facilitating development of
  broadcasting services in India.
• The key term missing is the term autonomous.
• The reason for this missing term becomes clear
  when the proposed definition is looked into in
  detail. For instance, an authorized officer
  means a District Magistrate or a Sub District
  Magistrate or Commissioner of Police and includes
  any other Officer notified by the Central
  Government or State Government or the Authority.
• Section 13 of the proposed bill provides that
  the Central Government may appoint a whole-time
  Chairperson and six whole-time members having
  special knowledge in the prescribed field.

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• Section 20 of the proposed Bill states that the
  Secretary of the Authority shall be the CEO of
  the Authority.
• The panel to appoint the Secretary shall be
  limited to officers of the rank of Additional
  Secretary to the Government of India at the
  Headquarters of the authority and officers of the
  rank of the Joint Secretary for the five regional
  offices.
• Section 23 of the proposed Bill gives vast powers
  to the authorized officers to inspect, search and
  seize equipment u/s 24 of the proposed Bill and
  to prosecute the service providers and other
  persons found to have committed offences under
  the Act.
• Section 24 of the proposed Bill gives power to
  seizure and confiscation to the authorized
  officer for either operating a unlicensed
  services or for failure to comply with the
  directions u/s 5 of the proposed Bill.

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• Section 5 of the proposed Bill gives enormous
  powers to the Central Government to either stop
  broadcasting its services or transmit such an
  announcement as necessary as deemed in public
  interest.
• Section 25 of the proposed bill indicates that
  the proceeds of license / registration
  permission fees in respect of broadcasting
  services shall be credited to the consolidated
  fund of India.
• The Section enables Government to decide what
  sums of money should be paid to the broadcast
  authority by way of grants in aid to consider
  necessary.
• It is quite clear from the reading of the
  proposed Bill that the Broadcasting Regulatory
  Authority by no stretch can be considered to be
  an autonomous authority in the light of the
  directions of the Supreme Court issued 11 years
  ago.
• Concurrent to the Broadcast Regulatory Authority
  bill, Government has been engaged in the exercise
  of trying to evolve a self regulating content
  code to govern transmission of broadcasting
  content in India. This content code is
  reportedly self regulatory in nature.

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• The proviso of section 4 of the proposed bill
  states that till the content code is notified
  under the Act, all service providers shall adhere
  to the programme code and advertising code
  prescribed under the Cable Television Networks
  rules 1994.
• These Cable Rules have come under judicial
  interpretation by the Honble Bombay High Court
  in a public interest litigation which is still
  continuing.
• Attention is drawn to the orders of the Honble
  Court dated December 21, 2005, August 23, 2006
  and August 31, 2006. As this matter is subjudice
  ,no direct comments can be offered at this stage.
  
• Suffice to say that without awaiting for the
  Broadcasting Regulation Bill 2006 to be enacted
  by Parliament, Government needs to urgently amend
  the programme and advertising code under the
  Cable Rules of 1994 to enable viewers a multitude
  of choice, keeping in mind, changing social
  norms..
• The tenor of the Broadcast Bill appears to
  disbelieve self regulation is at all possible for
  this industry.

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• In fact the bill uses the term license and
  ignores the term facilitation which is the
  hallmark of any enlightened democracy.
• Perhaps the industry needs to do some soul
  searching in this regard.
• In conclusion, it is necessary for the Government
  to seriously consider the recommendations of
  TRAI on a converged regulatory regime specially
  as we are rapidly moving forward with commercial
  IPTV operations and India should have mobile TV
  available early next year.
• Many young people are familiar with video blogs
  and Internet TV will catch on with increased
  availability of cheap bandwidth.
• In the light of all these, the term
  Broadcasting is outdated and perhaps we need
  to take a cue from Pakistan which already has a
  electronic media regulatory authority- PEMRA..
• It is clear that while Governments objective of
  licensing is a desperate effort to bring a
  vibrant industry under the control of the
  authorized officers. Technology cannot and will
  not wait for regulation.

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• The answer lies in revamping the present bill to
  allow for large measure of self regulation and a
  small measure of Government control.

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• THANK YOU

END OF PRESENTATION