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In TRAI-BARC India stand-off, flashes of regulatory overreach

TRAI recently sent a show-cause notice to BARC India

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MUMBAI: One of the most intriguing side acts during the implementation of the Telecom Regulatory Authority of India's (TRAI) new tariff order has been the sector regulator's face-off with TV audience measurement firm BARC. The latest flashpoint in this impasse involved TRAI issuing a show-cause notice to BARC.

At the core of this issue is TRAI’s insistence on BARC publishing its weekly findings on its website and the latter's sustained inaction on that front.

While BARC continues to supply data to advertisers, broadcasters and agencies, it has stopped publishing weekly ratings of shows and channels on its website due to vagaries linked to the rollout of the new regulatory framework for the broadcast sector. 

The decision was taken after due and appropriate deliberations to protect the interest of trade, subscribers and consumers, BARC had said.

TRAI’s argument, however, is that data at any given point in time reflects ground realities and there’s no valid reason for not putting it out in the public domain. TRAI, according to sources, believes consumers will use the ratings on the BARC website to make channel selection.

With this stand-off now stretching into its third month, it’s important to understand what really is at centre of this controversy. Is TRAI right in directing BARC to publish the data or is the TV ratings agency justified in taking the position it has on the issue?

To answer these questions, one must look at what BARC and TRAI have been entrusted to do as industry watchdog and TV audience measurement body respectively 

Like any regulator, TRAI’s mandate is to devise and implement policies factoring in market realities for growth of the sectors it oversees. Ensuring free and fair regulation that is pro-consumer and aimed at sending positive signals to the investment community should be hallmarks of any policy it conceives. The new tariff order and consultation paper on improving BARC’s measurement system are two fine examples of responsible regulatory behaviour. These initiatives are aimed at benefiting consumers and growth of the TV broadcasting and distribution business at large.

Encroaching into the operational domain of an independent and self-regulatory body, or even privately held entities for that matter, is a measure any regulator should try and avoid. Therefore issuing multiple directives and a show-cause notice to BARC could be categorised as a regulatory misstep by TRAI.

BARC is a joint industry body founded by stakeholder bodies that represent broadcasters, advertisers and media agencies.

Its job is to own and manage a transparent, accurate, and inclusive TV audience measurement system. It is mandated to ensure efficient media spends and content decisions in a highly dynamic and growing television sector. Hence, publishing weekly web data (for non-subscribers) isn’t actually a deviation from its standard operating procedures or a move away from conducting business as usual.

In fact, publishing ratings on the website found no mention in the Amit Mitra committee’s recommendations, endorsed by TRAI post consultations with the industry, to form joint industry body (BARC) in 2013. These guidelines were then notified by the MIB in 2014, resulting in the formation of BARC.

BARC India had registered itself with the MIB and was to conduct its operations on a self-regulatory model. Applying this fundamental tenet to the current scenario, BARC is well within its rights to not publish the weekly data on its website as long as it continues to service its subscribers.

Based on evidence in the public domain, BARC neither seems to have flouted any norms nor hampered the seamless functioning of the broadcast or advertising sector in any manner. In short, BARC not publishing its weekly data on its website, pre or post the tariff order implementation, bears no impact on the operations of industry stakeholders. TAM, BARC’s predecessor for 15 years, too, did not follow the practice of publishing web data.

Prima facie, BARC’s stance on the matter cannot be termed as a violation of the guidelines and/or the TRAI Act as the former does not come under the purview of the said act.

BARC is yet to confirm the date from when it intends to publish the weekly data. In both its statements so far, the company has cited reasons behind applying restrictions to public consumption of its data without offering a clarification as to how it intends to tackle the regulator’s constant questions.

It now remains to be seen what approach both parties adopt in breaking this deadlock. With both sides not backing off at the moment, the matter could soon take a serious legal turn.

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