NEW DELHI: The Hong Kong based Cable & Satellite Broadcasting Association of Asia (Casbaa) - a representative organisation of close to 120 pay TV and related companies in the Asia Pacific, many of whom have Indian operations - has submitted a note to the information & broadcasting minister Sushma Swaraj which lists the problems that implementation of conditional access system (CAS) and the Cable TV Networks Regulation Amendments Bill 2002 could throw up.

The association, which counts the Star Group, Time Warner and Discovery as its members, has highlighted the fact that while analog technology remains relatively low cost, it is also vulnerable to piracy and could create more problems in the future. "Under the proposed system, there will be significant opportunity for cable system operators to continue to under-report subscriber numbers", says the association.

Mandating CAS , which require a significant amount of capital investment, could have an adverse effect on the ability of platform operators, cable operators and foreign broadcasters to introduce new services, says the association. Rate regulation could also limit a cable operator's ability to meet the capital requirements necessary to provide additional services to consumers, says Casbaa chief executive Simon Twiston Davies.

On the pricing issue, Casbaa says, "The Indian government has assumed that broadcasters are behind the hike in subscription revenue. Currently, about six million cable subscribers are declared to broadcasters, although the total figure is said to be 38 million. With more disclosure, the rates charged by broadcasters of the consumers will come down. In any event, the total subscription fee paid by the cable operators to the broadcasters is approximately Rs 750 Crores (Rs 7,500 million) out of the total cable revenues of Rs 8000 Crores (Rs 80,000 million)."

Government control on both the price and composition of the basic tier is ultra vires Article 19(1)(a) of the Constitution of India which guarantees that all citizens shall have the "right to freedom of speech and expression." This freedom includes the right of every citizen to receive any form of speech or expression which is not barred under Article 19(2). Under Article 19(2) the state may impose reasonable restrictions to protect the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency, or morality, contempt of court, or incitement to an offence.

The content code in the Cable Television Network Rules, 1996 in clause 6 covers what the Government considers as un-reasonable for the purpose of Article 19(2). Under clause 4 A.2 & 3 of the proposed bill, the Government has assumed unfettered powers to control both composition and price as well as specify the number of channels which may be broadcast. Failure of the cable operators to abide by directions is a cognizable offence under Clause 16 of the Bill for which they may go to jail.

If the Government has a must carry requirement for nine channels and allows only 10 channels to be on the basic tier, it sends all the other free-to air channels into limbo as they are not pay channels and if they are not on the basic tier, they cannot be broadcast at all. This can be used at will to block certain channels.

There is no such power vested with the Government for newspapers, magazines or radio channels, points out Casbaa. However, if the Bill is passed in its present form, the government may try to assume control citing the Bill as a precedent, says Davies in the letter.

To know more about Casbaa's concerns relating to the clauses and provisions in the Cable Television Networks (regulation) Amendment Bill 2002 click here.

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