MUMBAI: Indian Media Group (IMG), the organisation representing Indian media companies in television broadcasting, radio and print media sector, has submitted its recommendations on the proposed Broadcast Services Regulation Bill, 2006. In its proposal, the organisation has asked the government to review certain provisions in the Bill, which it thought needed a "thorough review."

"The proposed legislation contains various provisions, which are not only in the public interest but also in the interest of the broadcasting sector as a whole and would definitely trigger off the process of growth and development in the sector in an organised manner. However, there are certain other provisions, which need a thorough review before they are introduced in the form of Bill," IMG said.

Pointing out that the interest of various stakeholders is going to be directly affected by these provisions, IMG suggested that after the receipt of inputs /comments from the stakeholders, a detailed consultative process be carried out by the government with various stakeholders by way of meetings and open house discussions before finalisation of formal view in this regard.
These are the key issues IMG has raised and its comments on the respective provisions:
LEGISLATIVE VALIDATION:

IMG asked for effective legislative backing that has been acting as an impediment to the effective implementation of various guidelines and policies. "Accordingly, it would be mandatory for the Broadcasting Organisations and all other stakeholders to discharge their prescribed obligations in such policies / guidelines in public interest. This would not only bring order in the sector but also provide an opportunity to the Broadcasting Sector to grow and develop in a focused manner," it said.

Expressing its concern on the post-Bill validity of the various regulations and tariff orders for regulating the broadcasting and cable sector Trai has issued till now, IMG suggested that a suitable provision in this regard should be incorporated in the proposed Broadcasting Bill so that these regulations and tariff orders continue to operate and apply even after the promulgation of this Bill.

IMG has also said that, the proviso in the Bill which provides exemption to the pubcaster (Doordarshan) or such category of broadcasters from all or any provisions of this Act is inequitable and unfair and needs to be reviewed. "All the provisions of the proposed Broadcasting Bill including content code needs to be applied to Prasar Bharti/Doordarshan as well. Doordarshan is competing with other channels like any other commercial broadcasting organisation," it said.

PERIOD OF LICENSE:

On the validity period of various broadcast-related licenses the government issued such as DTH, teleport and uplinking licenses for 10 years, IMG suggested that the Broadcasting Services license should also be granted at least for a period of five years. " It is submitted that for the violation of the terms and conditions of the license the necessary powers have already been conferred on BRAI (the proposed Broadcast Regulatory Authority of India) / Licensing Authority to suspend, cancel, revoke the license by following prescribed procedure under the Act. It is therefore, suggested that the validity period of license may please be prescribed as five years instead of one year," IMG said in its proposal.

IMG brings it into notice that the Act's illustrative list of broadcasting services definitions does not contain two already established mode of Broadcasting Network Service as well as content Broadcasting Service viz. IPTV & HITS (Headend in the Sky).

"In IPTV the content is delivered through cables / optical fibres and as such the channel delivery is akin to the delivery through traditional cable service. The attention is particularly invited to Section 2 (i) of the Bill which defines “Cable Television Network”. The IPTV squarely falls within the said definition. Accordingly, the IPTV services warrant inclusion under Broadcasting Network Service and IPTV service providers are also obliged to comply with the applicable provisions of the Broadcasting Bill including prescribed Content Code. HITS is an internationally recognised and most widely used digital mode of delivery of channels. In the Indian context, HITS is the most cost effective way of implementing digitalisation throughout the country at one stroke. It is therefore, suggested that both IPTV & HITS be included in section 2 (f) as well as section 2 (p)," IMG said.

On the mention on the definition of Multi System Operators (MSO) in the proposed Bill, IMG said that the definition had been confined to any person who provides cable television service to multiple subscribers. "In section 2 (ss) a subscriber has been defined to mean a person who receives the services at a place indicated by him without further transmitting it to any other person. It may be pointed out that a Multi System Operator (MSO) also provides services to cable operators. It is therefore suggested that in the said definition suitable amendment be carried out so as to include the provision of service to cable operators also." IMG also suggested that a suitable amendment may be carried out so as to include categories such as hotels/hospitals/guest houses and other similar institutions who obtain the signals for the benefit of their customers, members etc. in the definition of 'Subscriber'.

PUBLIC SERVICE BROADCASTING OBLIGATIONS:
IMG has suggested that the obligation to carry socially relevant programme, for up to 10 per cent of the commercial time, may be left at the discretion of the channels with the additional choice to the channels to fulfil this requirement of 10 per cent time for socially relevant programmes, either as part of its commercial time or as part of its programming content.

"This would give required flexibility to the broadcasters to adjust their available advertisement time as well as programming interse without compromising the overall obligation of devoting 10 per cent of the telecast time every week towards social messaging and public service programme. IMG is of the view that in this competitive business environment parting with 10% of commercial airtime every week shall have adverse financial impact on the revenues of all the channels, especially free-to-air channels whose main source of revenue is advertisement only," IMG said

COMPULSORY TRANSMISSION OF PUBLIC BROADCASTERS’ CHANNELS:

"It is submitted that in view of severe capacity constraint in the analogue cable distribution, it is inequitable to allow the Prasar Bharti to have the privilege of prime band frequencies and other frequencies on cable network to the detriment of other Indian broadcasters. We are of the view that a level playing field must be created in the broadcasting sector and the privileges and benefits conferred upon Prasar Bharti needs to be reviewed. More so, when cable is a means available to satellite broadcasters for airing, unlike Doordarshan which in addition has the monopoly of terrestrial broadcasting. It is submitted that there are about 250-300 channels available over Indian sky. All the private channels being barred for terrestrial transmission are carried by the satellite, unlike Prasar Bharati. Nowhere in the world the terrestrial transmission is the monopoly of State Broadcaster. Even BBC has sold its terrestrial transmission rights some 10 years ago," opines IMG on the issue of the compulsory transmisison of public broadcasters' channels.

IMG states that a blanket authorisation given to Prasar Bharti under Sub-section 3 of Section 7 to prescribe/notify the additional number and name of Doordarshan channels to be carried on prime and other bands by cable operators in the cable services is unfair and inequitable and is also quite contrary to the accepted principles of propriety. "The very broadcaster whose channels are required to be compulsorily carried has been given the power to notify such channels for re-transmission, which is totally unacceptable. These provisions need to be deleted. Either Brai or any other authority may be empowered to specify the channel (s) of national importance which are required to be compulsorily carried by cable operators and also their respective bands and frequencies. Such stipulation be made on after consulting all the stakeholders in a transparent manner".

MANDATORY SHARING OF CERTAIN SPORTS BROADCAST SIGNALS

IMG pointed out that, there is no provision in the proposed Section regarding requirement of conclusion of commercial contract between the right holder and the Public Broadcaster. "It may be appreciated that broadcaster acquire rights of major sporting events by spending huge amount of money and therefore it is imperative that they should be given the freedom to secure their financial revenues in order to meet the cost of procuring such rights. It is open for the Public Broadcaster also to compete with the private broadcasters by way of participating in the bid process for acquisition of such sporting rights. Accordingly the conclusion of a commercial contract is a pre-requisite for sharing such signals with the Public Broadcaster."

IMG also expressed its concern over the stipulation that the right holders shall have to share live broadcast signals without its advertisement. "This is also clearly prejudicial to the event right holder who has invested huge amount of money to procure such rights. Accordingly it should be the prerogative of right holder, that in order to secure subscription and advertisement revenues, whether it shares the live feed or `slightly delayed feed’ with the Public Broadcaster. Similarly the issue of advertisement in the feed also needs to be sorted out through commercial arrangement to be arrived at between right holders and the Public Broadcaster."

IMG has suggested that suitable amendment be carried out in Section 6 of the Bill as the stipulation to provide rights to Public Broadcaster without any commercial arrangement, which have been acquired by a broadcaster for a valuable consideration, is clearly arbitrary, unfair and inequitable.

ESTABLISHMENT OF BROADCASTING REGULATORY AUTHORITY:

IMG has welcomed the institution of a Broadcast Regulator "in as much as an effective Regulator protects the consumer interest and also protects the industry in question from arbitrariness and interference of the Government of the day." However it insisted that the Regulator must be autonomous, and independent of the executive.

APPOINTMENT OF CHAIRPERSONS & MEMBERS:

IMG has expressed its concern that the powers and functions enumerated in this section clearly imply that it is not the Brai but the Government, which will actually be controlling the industry. "The power to prescribe policy guidelines, power to refuse or revoke licenses, regulating the power to prescribe the norms to evaluate and certify the content code clearly indicate that the government will be the de-facto Authority since it would be able to control the entire industry through the officers appointed by it. This is quite contrary to the view expressed by Hon’ble Supreme Court in its judgement in the case of “Cricket Association of West Bengal vs. secretary, Ministry of Information & Broadcasting." it points out.

Listing various international examples in this context, . IMG suggested that it should be obligatory upon central government to consult Brai before formulating and prescribing any policy in the broadcasting sector. "This would ensure that the Regulator with inputs from all stakeholders, would also effectively contribute in the formulation of policies for the growth and development of broadcasting sector," it said.

NEWS & CURRENT AFFAIR CHANNELS:

IMG has pointed out that, all the news and current affair channels qualify to be ‘Public Service Broadcaster” as per the definition in the Bill. "Thus, the Central Govt. is empowered to exempt news and current affair channels from all or any of the provisions of this Act. IMG would request the central government to clarify the above-mentioned intention of the proposed provisions. If it is so, the apprehension of the news and current affairs broadcasters would be allayed to a great extent," it said.

POWERS TO FIX TARIFFS:

IMG also suggested that a suitable provision on the lines of section 11 sub section (2) of Trai Act may "please be incorporated in the proposed Bill" so as to enable the Authority to notify rates of Broadcasting Service / Broadcasting Network Service to effectively regulate the working of the sector.