Comment: Is there light at the end of the tunnel for broadcasters?

The period between August 2017 and September 2018 will be remembered by the Indian broadcasting sector for more reasons than one. Interestingly, the main protagonists seem to be common – Star India and the Supreme Court of India – and this combination has worked well to lay down a roadmap for the sector. Only time will tell whether it is for the good or bad!

Before we go further, let’s fact check the status of the Indian broadcasting sector.  According to Ministry of Information & Broadcasting that as on 31 October 2018 there are 866 permitted TV channels in India.

As per FICCI-EY Report, “Re-Imagining India’s M&E Sector” the broadcasting industry “grew from Rs 594 billion to Rs 660 billion in 2017, a growth of 11.2 per cent”. This includes the advertising revenue of Rs 267 billion comprising 40 per cent of revenues and the distribution revenue of Rs 393 billion comprising 60 per cent of total revenues. The broadcasting sector generates millions of jobs directly and indirectly, contributes to economic growth with a rate almost twice the GDP and provides an immeasurable ancillary contribution by serving a platform for the growth of several other industries.

This proves that television in India – even in the age of digital media explosion – remains a mass medium and plethora of stakeholders from content creators, broadcasters, teleport operators, satellite operators, advertisers, distributors and a larger television audience viewing audience are involved in one way or other.

Is it time to nationalise sports?

Let’s now examine some of the stunning reverses suffered by the broadcasters before the judiciary in this period.

First amongst them is the judgement delivered by the Supreme Court in 2017 in the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 which involved Star India and Prasar Bharati.

In a long-drawn battle of more than ten years, the Supreme Court finally confirmed the Delhi High Court’s finding when it adjudicated that the original intent of the act was to achieve twin purposes of making available a live feed of a sporting event of national importance to economically weaker section of the society and consequently, the same should be made available on a free or no cost basis. 

The Supreme Court whilst allowing the sporting events of national events to be shared mandatorily with Prasar Bharati ruled that the public broadcaster cannot utilise it on a notified channel which has to be compulsorily carried by private distribution platforms. Although the ruling of the Supreme Court was not followed by letter and spirit by Prasar Bharati, it put the onus on sports broadcasters to take legal action against erring private commercial platforms carried “live” sports feeds. Rather than encrypt Doordarshan’s feed, the Ministry ordered the distribution platform operators to run a ticker stating that “the match/game can be viewed in free-to-air mode on DD Sports Channel, on DD Free Dish and DD’s terrestrial network”. 

Whilst the Supreme Court put away any confusion on the Sports Act and a private commercial sporting event like IPL anyway ought not to be considered as sporting events of national importance, Smriti Irani who was piloting the I&B Ministry in April 2018 had other ideas.

During her time in Shastri Bhawan it seemed Star India was wrong when it fiercely bid to acquire long-term exclusive media rights for the Indian Premier League along with BCCI international and domestic matches for an approximate value of Rs 16,350 crore and Rs 6,150 crore respectively.

2017 was the first year for Star India after it acquired rights for the IPL and the Ministry inexplicably made them sweat out before granting temporary live uplinking permission for live broadcast of the IPL matches on their channels till the very last moment. This was nothing else but to arm-twist Star India to share all the live matches of Indian Premier League with Doordarshan for free, even though IPL, which is a privately-owned club cricket league and can no way be considered as a sporting event of national importance.  In the end, Star India had no other option but to give something to the power that be and they gave in to share with Prasar Bharati the inaugural, the playoffs held on weekends and the last four matches of IPL, with a deferred live feed of at least 60 minutes. No surprise, Smriti Irani claimed victory for bringing IPL for the first time ever on Doordarshan.

Not getting the “live” feed of IPL matches and unable to make legislative moves to amend the judgement of the Supreme Court as she did not find support amongst her ministerial colleagues the Irani-led Ministry issued a notice mandating all sports channels broadcasting live sports of “national importance” to display a ticker stating the same match was also available on DD’s free-to-air platform squirming sports broadcasters. Not only are the rights holders required to give live sports content free to DD as per the Sports Act, but they are also required to run a marketing campaign for Doordarshan to drive audiences away from themselves to go somewhere else to watch it!

Now, if the broadcasters believed that the Supreme Court’s decision on the Sports Act in August 2017 had finally settled the issue, unfortunately, it was not to be. On 24 October the Ministry released a notice seeking feedback/comments on draft Sports Broadcasting Signals (Mandatory) sharing with Prasar Bharati (Amendment) Bill, 2018.  The ministry wants to amend Section 3(1) of the Sports Act to ensure mandatory sharing of the signals of such sporting events with “other networks, where it is mandatory to show the Doordarshan channels as per the Cable Television Networks (Regulation) Act, 1995”. 

Here's a suggestion : rather than doing it in a piecemeal manner in forcing sports broadcasters to share more sporting events why doesn’t the government nationalise at one go so there is clarity on sports broadcasting?  This will also make Doordarshan the only sports broadcaster in the country and thus can ring-fence them from competition from private sports broadcasters!

Changing landscape?

However, the biggest one of all is the Supreme Court judgement on 30 October dismissing the plea of Star India challenging the jurisdiction of TRAI in regulating the broadcasting sector through Tariff Orders.

The Supreme Court judgement has far-reaching consequences for the broadcast industry since it settled the long pending debate of who is the regulator of the Indian broadcasting sector.  Star India had challenged TRAI’s jurisdiction to frame the tariff order arguing that the exploitation of intellectual property (IP) rights are covered under Copyright Act.  The Supreme Court whilst refusing to entertain Star India’s challenge by 2:1 majority held that (1) the Copyright Act had nothing to do with the inter se relationship between the broadcaster and the distributor in the activity of broadcast and (2) it also does not deal with the price of a channel that an end consumer pays to the broadcaster.

Whilst the Supreme Court empowered the end-consumer through its order but the implementation is not going to be smooth.  Although TRAI proposed to bring DTH, cable TV, HITS, IPTV operators under unified quality of service framework way back in 2015, poor implementation at the ground level means, the cable operators have still not put in place any consumer redressal mechanisms nor will they issue any bill or invoice.  Worse still, many distribution platform operators (DPOs) have not even fulfilled technical requirements under the DAS mandate or installed subscriber management systems to inform the authorities how many subscribers they service in their areas of operation even though the new tariff order is going to become effective from 1 January 2019.

According to industry experts, although the new Tariff Order is expected to benefit the consumer as he can now pick and choose his channels rather than being saddled with hundreds of them but the cost of monthly cable bill may go up.  In other words, a new concept of ‘pay less for less, pay more for more’ is going to be a reality for Indian broadcast consumers.

The moot question is after the Supreme Court empowering the consumer vis-à-vis broadcasters, has TRAI empowered the consumer vis-à-vis DPOs?  The quality of service (QoS) by the DPOs has always been a bone of contention because of its implementation on the ground by the licensor, MIB or its authorised officers at the district level or by the regulator, TRAI.

Even after the implementation of the Digital Addressable System (DAS), the analogue transmission is still transmitted in many parts of the country and the cable operators have not yet fulfilled the technical requirements to meet the DAS mandates.  Even today in many parts of the country kutcha bill is the norm and no sign of any kind of customer care.  When it is brought to the notice of the policymakers they don’t want to see the reality.

Although TRAI notified the Telecommunication (Broadcasting and Cable) Services Standards of Quality of Service and Consumer Protection (Addressable Systems) Regulations, 2017 the experience so far shows it will be a tall order to implement on the ground on issues such as establishment of customer care centre, website, consumer care channel and publication of manual of practice, etc.

As a result, there will never be an end to the disputes amongst stakeholders which is the bane of the Indian broadcasting sector and where is the possibility of changing landscape?

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