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Regulations 2016: Of DeMon challenges, changing goalposts & rampant litigation

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The regulatory regime in 2016 not only continued to struggle keeping pace with fast-marching technology (4G is passé, 5G is being talked in some countries), but lack of consensus amongst stakeholders on major issues meant that litigation was rampant, thus leading to changing milestones. It was also about the government trying to enforce censorship via the backdoor and, hence, despite the best of intentions, only average dividends accrued to the media and entertainment sector in India, which is still described as a market with huge potential, but also a challenging place to do business.

The biggest policy (that ultimately turned into a regulatory challenge) initiative of 2016 --- some would say the biggest hiccup --- was PM Modi’s demonetisation bomb aimed at unleashing a surgical strike on black money and parallel economy in the country that, according to an earlier government narrative, made the poor poorer and gave a fillip to corruption. Debatable long term gains of such a move, notwithstanding, the media industry immediately felt the heat of cash crunch.

As collections from the ground dropped for LCOs, it affected the MSOs too, though many big MSOs insisted that making high-value currency notes illegal from November 9, 2016 could act as a catalyst for LCOs to make their business more transparent.

From an earlier estimate of Rs. 600 crore or Rs. 6 billion loss to the media and advertising segments owing to demonetisation, loss estimates ballooned to almost Rs 300 billion towards the end of the year when most corporate adspends were slashed owing to low on-ground collections. FMCG companies led this trend and are likely to do so the in the last quarter of the 2016-17 financial year too. The cascading effects on all segments made them yelp with pain.

Demonetisation also made the telecoms and broadcast carriage regulator the Telecom Regulatory Authority of India (TRAI) scurry to issue guidelines to facilitate the government push towards a cashless economy. For example, reduction of the ceiling tariff for the use of unstructured supplementary service data (USSD)-based mobile banking services from Rs 1.50 to Rs.0.50 and amendment to the mobile banking (quality of service) regulations to increase the number of stages from 5 to 8 per USSD session.

Though the government’s reluctance to interact with the media directly continued throughout the year as government representatives, led by PM Modi, relied more on social media to communicate with the country at large, like many regimes in the past this government too attempted to curb media freedom. The Ministry of Information and Broadcasting (MIB) directive to NDTV India, on suggestions from an inter-ministerial committee, to shutter for a day as a penalty for breaching content code on issues related to national security was one such example.

The government initially tried to justify the move saying national security was compromised by NDTV India, a Hindi news channel, but ultimately MIB buckled under pressure from a large section of the media frat and populace in general to go in for a face saver and the directive was kept in abeyance. However, the message couldn’t have been louder and clearer to not only the media, but also the critics: don’t underestimate the government’s resolve to crack the whip even though the Constitution grants Indians certain freedom of expression and free media be damned.

However, it would be unfair to criticise the government for doing nothing except increasingly crack the whip. As part of overall reforms, the government did liberalise FDI norms for several sectors, including the media, in June. Foreign direct investment limits in broadcast carriage services like DTH, cable distribution, teleports, HITS, mobile TV, etc were allowed up till 100 per cent with certain caveats. Norms for FM radio broadcasts too were liberalised.

Still, foreign or global media players didn’t start pouring money immediately in ops in India. Government data on FDI till September 2016 makes it clear that the media and entertainment sector was not amongst the top 10 sectors where foreign investment flowed in and its share was comparatively small despite liberalised norms and New Delhi’s attempts to further work on ease of doing business in India.

The MIB did manage to shave off to an extent the time period taken to obtain a licence for uplink or downlink for TV channels and teleports, but failed on many counts to be proactive on developing issues (like controversial appointments in several MIB-controlled media institutions and attempted content regulation by non-authorised organisations), for example. Its reactionary approach complicated matters further.

Widely criticised for over regulating the telecoms and broadcast & cable sectors, the TRAI stuck to its avowed and stated aim of attempting to create a regulatory regime that would reduce ambiguities and create a level playing field for all stakeholders.

From trying to deal with issues in a piecemeal fashion (Net Neutrality being one) to smoothening the road ahead for the players via various guidelines and recommendations, TRAI, under chairman RS Sharma, has not shied away from confronting any bull (like Facebook) --- some players, however, say it acted like a bull in a China shop.

Whether it was the issue of Net Neutrality or zero tariffs offered by telcos for certain services or tariffs, interconnect and quality of services in the broadcast carriage sector or pushing MSOs on digital rollout or suggesting free limited data to rural India to give a fillip to the digital economy or cracking the whip on mobile phone call drops, or interoperable boxes for DTH and cable TV services, the TRAI has been trying to walk the tight rope between regulations and industry and political lobbying.

But it must be agreed that TRAI has done less of flip-flops compared to organisations like the MIB or ministry of telecommunications and stuck on its stated route to regulation. It also has been talking straight. For example, TRAI could not have been more apt when Chairman RS Sharma told indiantelevision.com in a year-end interview that the regulator has to step in only when industry stakeholders fail to resolve issues amongst themselves. Because the industry has consitently been disastrous on managing this and thrives on ambiguities and rampant litigations, the regulator has had to time and again had to step in to remove doubts, even if that means minimalistic regulations, Sharma opined.

On cue, it seems, towards the fag end of the 2016, Star TV and Vijay TV moved the courts against draft TRAI regulations on tariff, interconnect and quality of services, pleading the regulator could not hold sway in areas where already established domestic and international laws are there. Till further hearing later this month, the Madras High Court directed TRAI to maintain the status quo.

With the digitisation goalpost shifted to March 2017 it is to be seen whether MIB can push through some ongoing reforms and withstand pressures arising out of demonetisation and from political allies.

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