Telecom Regulatory Authority of India

Consultation Paper

on

Issues relating to entry of certain entities into Broadcasting and Distribution activities

               Chapter 1. Introduction

                        1.1 Radio and television broadcasting are among the most popular means for mass communication. The broadcasting activities broadly fall under two categories, the first one being creation and dissemination of content, while the second one is the distribution activity. As of today, broadcasting activities in India are with Prasar Bharati (created by an Act of Parliament) and with the private sector, while that of distribution is largely in the hands of private operators except the Direct to Home (DTH) services of Prasar Bharati, and some public sector undertakings like Mahanagar Telephone Nigam Limited (MTNL), who have reportedly registered themselves as cable operators under the Cable Television Networks (Regulation) Act, 1995.

                        1.2 Government of India, Ministry of Information & Broadcasting in its letter No. D.O. No. 9/32/2007-BP&L dated December 27, 2007 (placed at Annexure A) has requested the Telecom Regulatory Authority of India (TRAI) to examine the matter of allowing some other entities including State Governments to enter into the broadcasting activities and has requested for submission of its recommendations as per the provisions of section 11(1)(a) of the Telecom Regulatory Authority of India Act, 1997 especially covering the following issues, namely:-

                        i. Whether State Governments, urban and local bodies, 3-tier Panchayati Raj bodies, publicly funded bodies and political bodies should be permitted to enter into Broadcasting activities which may include starting of broadcast channel or entering into distribution platform like cable services.

           (a) If ‘yes’, what are the kind of broadcasting activities which should be permitted to such organization and to what extent? What are the safeguards required to prevent monopoly or misuse? Whether any amendments are required in the extant Acts/Rules/Guidelines to provide for the same.

           (b) If ‘No’, Whether disqualifications proposed in Section 12 of the Broadcasting Bill, 1997 and Part I of the Schedule thereto should be considered as it is or with some modifications for incorporation in the

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           existing Cable Act and Rules relating thereto and in the proposed Broadcasting Services Regulation Bill, 2007, and policy guidelines with respect to broadcast sector issued by Ministry of Information and Broadcasting. If so, what are the amendments/provisions required to be made in them?

                        ii. Whether similar disqualifications with respect to religious bodies on the lines of Broadcasting Bill, 1997 or with some modifications be also considered for religious bodies.

                        1.3 As per sub-section (4) of section 11 of the TRAI Act, 1997, the Authority is required to ensure transparency while discharging its functions. TRAI is accordingly initiating a process of consultation to evolve a detailed policy framework on these issues.

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               Chapter 5. Policy and Practice of Ministry of I&B in Broadcasting and Cable Sector

Requests from Various State Governments, public bodies, etc.

                        5.1 The Central Government have received few requests from State Governments/ State Government undertakings, etc. for starting TV or Radio channels, and for entering into distribution platforms like cable service. The details of some of these requests, as indicated by the Government of India, Ministry of Information and Broadcasting, are given in the following paragraphs.

                        5.2 One such request for launch of a TV broadcasting channel was made in the year 1999 by the Government of West Bengal. It was proposed to set up an autonomous body and, till such time the body could be put in position, the channel was proposed to be owned, launched and operated by the West Bengal Film Development Corporation Ltd., a public sector-undertaking of the State Government.

                        5.3 The matter was considered by the Government of India and the request was not acceded. The Authority has been informed by the Government of India in the enclosure to their letter dated December 27, 2007 that following factors were, among others, taken into account while rejecting the request, namely:-

                        (i) The observations of the Hon’ble Supreme Court in their judgment in the case of Union of India vs. Cricket Association of Bengal dated 9.2.1995 (AIR 1995 (SC) 1236 :: 1995 (2) SCC 161). Relevant portions of the said judgment are reproduced below:-

"Broadcasting media should be under the control of the public as distinct from Government. This is the command implicit in Article 19(1) (a). It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/their impartiality in political, economic and social matters and on all other public issues."(Justice Jeevan Reddy) (para 201)

"Government control in effect means the control of the political party or parties in power for the time being. Such control is bound to colour and in some cases, may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending view points and opinions which is essential for the growth of a healthy democracy". (Justice Jeevan Reddy) (para 199)

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                        (ii) It has been also mentioned that keeping in view the above judgment of the Hon’ble Supreme Court, the Government, local authorities and public bodies substantially funded from public fund were proposed to be disqualified in the draft Broadcast Bill, 1997 and that there was a special provision in the said Bill for public service broadcasters created under an Act of Parliament to avoid any contradiction or inconsistency.

                        5.4 Subsequently, the Central Government received a proposal from the Government of Punjab for setting up a TV Broadcasting Station in collaboration with a foreign broadcast company named Globe Satellite Communication. The reply dated 24.5.2000 has reportedly conveyed refusal of the Government of India stating that as per the extant policy, State Governments are not permitted to set up TV channels or broadcasting stations. It was also mentioned that even Doordarshan and All India Radio (AIR) which were earlier part of the Central Government have been distanced from the Central Government and brought under statutory body Prasar Bharati, under the Prasar Bharati Act, 1990.

                        5.5 Another request was received from the Government of Andhra Pradesh for permitting distribution of Ku Band signals of Mana TV through commercial cable operators. The request was also not acceded to by the Government of India.

                        5.6 Recently, Tamil Nadu Arasu Cable Corporation Ltd, a Govt. of Tamil Nadu undertaking, has filed an application with the Ministry of Information and Broadcasting for permission under rule 11 of the Cable Television Networks Rules, 1994 to work as a Multi System Operator in the CAS notified areas of Chennai. A request from the Chief Minister of Delhi for starting an FM Radio Channel or a community Radio Station has also been received in the Ministry of Information and Broadcasting.

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               Chapter 6. Issues for Policy Framework

A. Issues regarding entry into Broadcasting Activities

                        6.1 The Judgement of Hon’ble Supreme Court in the case of Cricket Association of Bengal (1995 AIR(SC) 1236 :: 1995 (2) SCC 161) was delivered on February 9, 1995 (see para 5.3 ante). This was at a time when broadcasting in India was virtually a Government monopoly and private broadcasting was a comparatively recent phenomenon.

                        6.2 This was followed by the establishment of the Prasar Bharati as a statutory autonomous body under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990. The main objective behind the creation of Prasar Bharati was to ensure a reasonable degree of freedom to All India Radio and Doordarshan, with emphasis on upholding the unity and integrity of the country, nurturing the democratic and social values enshrined in the Constitution and projecting the varied cultural traditions of different regions of the country. The Statement of Objects and Reasons of the Prasar Bharati (Broadcasting Corporation of India) Bill, 1989 as introduced in Lok Sabha on 29.12.1989 is placed at Annexure F.

                        6.3 The Prasar Bharati Board came into existence on November 23, 1997. The Prasar Bharati is the Public Service broadcaster in India. During the last decade or so, the broadcasting sector, i.e., both radio broadcasting and television broadcasting, has witnessed enormous expansion and growth, with participation of private entities. There has been a phenomenal growth in the number of television channels, belonging to different genres (such as general entertainment, sports, news, children’s entertainment, education, religion, music etc.), and such channels are uplinked both from India and abroad, and downlinked into the territory of India for distribution through various platforms to the viewers at large.

                        6.4 In view of the growth of the broadcasting sector and the diversity among various players in the sector, and in view of the various other entities desiring to enter into this important sector, it has become necessary to have a relook at the policies relating to entry of various entities, with a view to enable citizens to arrive at informed judgment on all issues touching them. Further, as observed by the Hon’ble Supreme Court in the judgment aforecited, airwaves constitute public property and must be utilized for advancing public good. Accordingly, there is need to have a comprehensive policy as regard conferment of the right for different entities to enter into the broadcasting sector, which would advance the public good without any infringement of the citizen’s free speech rights.

                        6.5 Pluralism in the broadcasting sector embraces a number of aspects, such as (a) diversity of ownership, (b) variety in the sources of information, (c) range of contents available in the broadcasting media, (d) multiplicity of delivery platforms and service providers, etc. Diversity of ownership of media is not sufficient per se to ensure pluralism of content. The manner in which media content is produced also has an impact on the overall level of plurality in the sector. It is in this context that the character of the entity which owns a broadcasting medium may influence the nature of the contents disseminated through the said medium. In other words, the character and the basic objective of the entity which owns a particular broadcast channel can be said to influence the contents of such channel for seeking to achieve its basic objective.

                        6.6 Both public service broadcasters and commercial broadcasters contribute to pluralism of the sector and strengthen this sector. At the same time, it is useful to lay down clear cut principles as regards the balancing of public service broadcasting and commercial broadcasting by various entities in this sector.

                        6.7 High quality information is an important aspect of public service broadcasting and fulfilment of this requirement makes an important contribution to pluralism in the sector. Presently, Prasar Bharati is catering to the needs of the State Governments to educate the public about their policies, etc. through the broadcast route. It has separate satellite TV channels in almost all the national languages. These channels are being uplinked from the State capitals. Doordarshan’s National Channel (DD1) is also delinked for about 3-4 hours a day for State level programming by the concerned Doordarshan Kendras situated in different States. Proceedings of Question Hours of the Lok Sabha and the Rajya Sabha are also being telecast live on National Channel of Doordarshan. Thus, Doordarshan has played an important role in meeting the requirements of Central and State Governments as far as public education is concerned.

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                        6.8 The question would, therefore, arise as to whether public service broadcasting privileges should be extended to various organs and undertakings of a Federal Government and the federating units, and various local self government institutions and other publicly funded bodies, etc. Thus, the following issues mentioned in paras 6.8.1 and 6.8.2 relating to plurality of broadcasting activity would arise for consultation, namely :-

                        6.8.1 Whether, having regard to entry 31 in List I (Union List) of the Seventh Schedule to the Constitution of India [Posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication], it would be in the interest of broadcasting sector and in the interest of the public at large, to permit Union Government and its organs, State Governments and their organs, urban and rural local bodies, publicly funded bodies and political bodies to enter into broadcasting activities such as –

            (a) starting of a television broadcast channel;

            (b) starting of a radio broadcast channel (including an FM channel) ?

                        6.8.2 Whether permitting these entities (including State Governments or their enterprises) to enter into broadcasting activities would be within the scheme of the distribution of subjects in the Constitution between the Centre and State Governments?

                        6.9 In case of opening up of the broadcasting sector to the State Governments, Government owned enterprises, urban and local bodies, other publicly funded bodies, and political bodies, it would give rise to another important question as to what type of broadcasting activities can be permitted for such organisations, particularly in view of the fact that the broadcasting activities to be undertaken by such bodies will be basically dictated by the broad objectives and functions of these organisations. The scope of such permission is also an important issue to be considered in this context. For example, if a district level Panchayati Raj body seeks permission to start a satellite television broadcasting channel which may have a foot print for the entire area of the country, it may only result in wasteful expenditure of public funds besides other political and other implications.

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                        6.10 The issue, therefore, for consideration is:-

                        6.10.1 In case the Governments and government owned or controlled enterprises, local self government institutions, other publicly funded bodies, and political bodies ( both at the national and regional level) are to be allowed entry into the broadcasting service, in that case, what type of broadcasting activities should be permitted to each one of such organisations and to what extent?

                        6.11 Another connected issue which would arise in the context of permitting such entities to enter the broadcasting sector is the possibility of its limited usage with certain political or committed religious objectives. So far, the Government has, by and large, not encouraged such entities to enter into broadcasting sector. The issue to be considered, therefore, is :-

                        6.11.1 What are the safeguards needed for ensuring bonafide usages of the broadcasting permission granted to such entities? Are they enforceable particularly if the state machinery is the prime mover?

                        6.12 The Draft Broadcasting Bill, 1997 as introduced in the Lok Sabha in 1997 contained certain restrictions for grant of licences for the broadcasting sector. Sub-clause (1) of clause (12) of the said Bill read as follows :-

" 12. (1) No person specified in Part 1 of the Schedule shall be eligible for the grant of a license under this Act.".

A copy of clause 12 of the said Bill is placed at Annexure B to this consultation paper. Part 1 of the Schedule appended to the said Bill contained, inter alia, provisions disqualifying Government and local authorities, religious bodies, political bodies, publicly funded bodies and advertising agencies. A copy of the Schedule appended to the Broadcasting Bill, 1997 is annexed at Annexure C to this consultation paper.

6.13 The said Bill having not been enacted into law, the legal regime governing the broadcasting sector continues to be governed by the provisions of the Indian Telegraph Act, 1885 and other cognate legislations and the guidelines and polices framed by the Government of India from time to time.