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#Retrace2021: The year of regulatory challenges and no TRPs for news channels

A salvo of amendments, Bombay HC upholding NTO, and a new flashpoint...

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Mumbai: The year 2021 began with a rather chaotic legacy handed over by 2020. In the aftermath of the TRP Scam, TV ratings for the news genre remained suspended throughout the year. The legal tussle between Telecom Regulatory Authority of India (Trai) and broadcasters over the rollout of the New Tariff Order (NTO) 2.0 continued to dominate the headlines.

Adding to this, was the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021), announced in February which set the ball rolling for regulation of digital and social media. This was followed by the Cable Television Networks (Amendment) Rules, 2021 (CTNA 2021) and the proposed amendments to the Cinematograph Act, 1952, all of which sought to regulate content across media including digital, and align it with ‘public interest’.

Also Read: SC refuses to grant interim protection to Tandav makers

The year began with the controversy over the Amazon Prime web series ‘Tandav’ which became the tipping point for the government which was already deliberating the regulation of digital media including social. The show and its star cast was accused of hurting the religious sentiments of a particular community prompting the show’s director Ali Abbas Zafar to issue an unconditional apology on social media. The spate of FIRs and threats continued unabated despite the omission of two ‘objectionable’ sequences, and apologies from the platform and its then country head Aparna Purohit.

Also Read: Tandav : And the future of storytelling

While the hitherto pampered OTT-verse was bracing itself for government oversight, the pay-TV universe continued to be cannibalised by it and DD Free Dish at the top and bottom tiers. Even as distribution players worked on diversifying their offerings to embrace the imminent digital takeover and on building new ones to challenge Free Dish, they kept pushing for regulatory interventions to tackle the issue at its core. Though well within its rights to strive for survival, in the process of manoeuvring these challenges, the industry ended up creating another flashpoint between the regulators/government and itself.

2021 closed with a trailer to the next big fight with Trai questioning the availability of linear channels on OTT and telco apps which, it said, is in violation of Clause 5.6 of Policy Guidelines for Downlinking of Television Channels dated 5 December 2011. Broadcasters, on the other hand, invoked section 37 of the Copyright Act 1957 known as Broadcast Reproduction Right (BRR) to justify their channels’ presence on their own OTT platforms and third-party aggregator apps. Also because they are not licensees under Trai Act, they do not fall under the scope of Trai Act or Interconnection Regulations or Clause 5.6 of Downlinking guidelines.

Here, we take a look back at the regulatory events and challenges that re-defined the Indian TV industry in 2021.

Legal tussle over NTO 2.0

One of the biggest developments of the year was the pronouncement of the Bombay High Court order on the NTO 2.0 case on 30 June. After a legal tussle that lasted over a year, Trai had managed to get a green signal from the court on the implementation of the amended rules. While the HC upheld the constitutional validity of NTO 2.0, it termed one of the twin conditions “arbitrary”, according to which the maximum retail price of an a-la-carte channel could not be more than one-third the maximum rate of a channel in the bouquet.

Also Read: NTO 2.0 Verdict : Who Wins What?

Following the notification of NTO 2.0 in January 2020, several broadcasters under the umbrella of the Indian Broadcasting and Digital Foundation (IBDF) and a couple of other private channels challenged the amendment terming it “arbitrary and in violation of their fundamental right”. The NTO 2.0 prescribed linkage between a-la-carte price and bouquet via the imposition of twin conditions on bouquet pricing, and reduction in price cap from Rs 19 to Rs 12 for pay channels, thereby incentivising a-la-carte alone.

Having recognised the adverse impact of NTO (2019) on all stakeholders including consumers, broadcasters and distributors refused to accept the judgement and challenged it further in the Supreme Court in July. After a series of adjournments, the apex court, on 30 November, posted the matter for hearing on 15 February 2022.

Meanwhile, in November, Trai moved the deadline for implementation of NTO 2.0 from 1 December 2021 to 1 April 2022. Distribution platforms like DTH and cable will now have to seek subscriber choice till 31 March 2022, it said. The deadline for broadcasters to come up with their new reference interconnection offers (RIOs) and simultaneously publish the required information about channel and bouquet offerings, as well as their MRPs on their websites was also extended to 31 December.

Also Read: Trai extends NTO 2.0 implementation to 1 April 2022

Several large networks including ETV, Discovery Communications, Sun TV, Times Networks, ZeelL, SPNI, and others had come out with their new RIOs in October-November. In what looked like a refusal to back down, the broadcasters preferred to pull their popular channels out of the bouquets instead of reducing the price to Rs 12. Their move flies in the face of the regulators’ assertion and intention of preserving the interest of customers.

Despite the short-lived benefits of incentivising à la carte and changes in NCF for broadcasters and distributors, the attempt to regulate channel pricing was soon recognised by all stakeholders as being counterproductive. Aside from having an overall negative effect on reach and viewership for broadcasters, it led to the shutting down of many niche channels which became inviable as a result of NTO implementation. The impact for distributors was felt when customers gravitated towards either OTTs or Free Dish to counter the increase in their monthly subscription bills.

Also Read: DTH operators write to Trai over broadcasters offering pay channels on DD Free Dish

The implementation of NTO 2.0 will further hasten this migration. Foreseeing the detrimental scenario, Direct-to-home (DTH) service providers including Tata Sky and Airtel Digital TV wrote to Trai in September asking the regulator to address the issue of broadcasters making their pay channels available on DD Free Dish. Alleging that this goes against the current tariff regime which mandates the designation of channels as either pay or FTA and prohibits their bundling together, they once again raised the demand for such designation to remain constant across distribution platforms.

Also Read : There needs to be a level-playing field : Tata Sky CEO Harit Nagpal

Further, in a letter dated 28 December written to Prime Minister Narendra Modi, the Delhi-based All Local Cable Operators Association alleged that the Trai and broadcasters are “forcibly pressurising” MSOs to implement the new tariff order, which will lead to cable TV operators, national MSOs and independent MSOs incurring huge losses. The NTO 2.0, if implemented, will lead to the unemployment of lakhs of families connected with the cable TV industry, it said. Several other representative organisations have also raised the issue with the government and regulators frequently.

Also Read : Trai vs Broadcasters : Impact could be larger than expected

IT Rules, 2021 & Cable Television Networks (Amendment) Rules, 2021:

The introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 by the ministry of electronics and information technology (MeitY) in February sought to regulate social media, digital platforms, and streaming services in the country through a three-level grievance redressal mechanism.

The “soft-touch regulatory architecture" comprised Level I - self-regulation by broadcasters, Level II - Self-regulation by registered self-regulating bodies of the broadcasters, and Level III - oversight mechanism by the central government. Later in June, the government extended this framework to Cable TV with the Cable Television Networks (Amendment) Rules, 2021.

Also Read: MIB amends Cable TV rules for redressal of broadcast related complaints

Also Read: Trai issues new consultation paper to regulate monopoly in Cable TV services

The new regulations, along with proposed amendments to the Cinematograph Act, 1952, brought together all forms of media in the country barring newspapers under the three-layer regulatory mechanism. Consequently, they also ran into troubled waters with broadcasting associations like NBA and IBDF and some independent players filing several petitions in various high courts.

News Broadcasters Association (NBA) president Rajat Sharma wrote to the then I&B minister Prakash Javadekar requesting the exclusion of digital news platforms owned and run by traditional news media from the purview of the provisions of the new IT Rules, 2021. In July the organisation approached the Kerala HC with a writ petition contending that the oversight mechanism gives the executive “unfettered, unbridled and excessive powers to regulate the content of TV channels of news broadcasters.”

Also Read : No exemption for mainstream media from IT rules

The IBDF, Sun TV Network, and SJ Clement filed separate petitions challenging the constitutional validity of Part III of IT Rules 2021 and CTN Amendment Rules 2021 in the Madras high court.

In May, IBF had renamed itself as IBDF bringing all digital/OTT platforms under its purview. It also announced plans to form a new subsidiary - an industry-led Self-Regulatory Body (SRB) called Digital Media Content Regulatory Council (DMCRC) to serve as a second-tier mechanism at the appellate level specifically for digital. The DMCRC is similar to Broadcast Content Complaint Council (BCCC) which IBF had successfully implemented for the linear broadcasting sector in 2011. 

Also Read: Former SC judge Justice Vikranjit Singh Sen appointed chairman of IBF’s new self-regulatory body

Overhaul of TRP ratings

The committee on TRP ratings formed by the government in the aftermath of the 2020 TRP Scam came up with its recommendations pushing for the formation of multiple rating agencies in competition to Barc India and creating a specialised regulator to oversee all of them. The 39-page report submitted by the committee early this year was shared with Broadcast Audience Research Council (Barc) India and other broadcasters in November to take the discussions forward.

Led by Prasar Bharati CEO Shashi Shekhar Vempati, the four-member team also included - IIT Kanpur, professor of statistics, department of mathematics and statistics, Dr Shalabh; C-DOT executive director Dr Rajkumar Upadhyay; Decision Sciences Centre for Public Policy professor Pulak Ghosh.  After consultation with stakeholders such as Barc India, MDPL, Zappr Media, Nielsen India, and Tata Sky AMS, the committee had issued several specific and sweeping recommendations on the technical aspects of TV rating measurement in India.

Observing a broad consensus among industry stakeholders in favour of leveraging return data capabilities, it recommended that RPD should be made mandatory for set-top-boxes (STBs) deployed by distributed platform operators (DPOs). The collection of viewership data by DPOs is to be governed by privacy norms prescribed by the government/regulator. 

Also Read : Govt committee seeks to set up specialised regulator for media ratings

The report noted that crowdsourcing approaches could be economical alternatives to RPD and should be open to rating agencies to enrich panel-based measurement. The committee also batted for an open data ecosystem allowing academics and independent researchers access to algorithms and raw datasets to analyse, validate and enrich them.

The television rating system in India had come under scanner in October 2020 when Mumbai Police claimed in a press briefing that they have probed a case of manipulation of TRPs and found some incriminating evidence. The police said the accused were allegedly bribing the households to keep a particular channel running, leading to several arrests. Three news channels, Republic TV, Fakt Marathi, and Box Cinema were named in an alleged TRP tampering scam. BARC had also temporarily suspended the publishing of weekly data for news channels, which remains in limbo to date.

Also Read: MIB to implement TRP ratings recommendations soon: Anurag Thakur

Making satellite-broadband services cheaper

The cost of satellite-broadband services continues to remain on the higher side in the country, posing a major challenge to its wide adoption by the end-users. The issue was also taken by India’s telecom regulator which is looking for ways to drive down the rates of satellite broadband. Early this year, Trai also floated a discussion paper and sought views to make satellite communications more affordable in the country. 

Among other issues, Trai also sought views on whether satellite service licensees should be allowed to obtain bandwidth from foreign satellites for providing IoT connectivity. Also, whether any specific or all bands should be permitted for provisioning satellite-based IoT connectivity. It also invited suggestions on whether a new licensing framework should be proposed for the provision of satellite-based connectivity for low-bit-rate applications or the existing licensing framework may be suitably amended to include the provisioning of such connectivity.

Also Read: Trai seeks suggestions to make satellite broadband services affordable

5G roll-out and spectrum clash:

Earlier in the year broadcasters expressed concern over the rollout of 5G at a near-clashing frequency. Their apprehension was that the spectrum range of 3.0-3.6GHz identified for 5G does not allow for a buffer or ‘guard band’ before satellite television operates at 3.7 to 4.2 GHz. This could lead to disruption in television and radio services in the country. Even though welcoming of 5G has held great opportunity for the M&E industry in the era of convergence, broadcasters said that in the event they had to move to a higher frequency, the government should intervene with subsidies to offset the cost incurred.

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