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A heated debate unfolded on Wednesday during TRAI's open house discussion as DTH players demanded regulatory measures for OTT platforms, accusing them of enjoying unfair advantages, while broadcasters, led by IBDF and NBDA, pushed back against proposals to bring broadcasting under the Telecom Act, warning it could undermine their unique identity.
The open house discussion (OHD) held by the Telecom Regulatory Authority of India (TRAI) on its consultation paper titled Framework for Service Authorisations for Provision of Broadcasting Services under the Telecommunications Act , 2023, which has drawn significant criticism from broadcasters, saw participation from across the industry, including broadcast bodies, DTH operators, consultants, news organisations, cable operators and more.
Content Regulation Authority
Siboney Sagar, representing the Indian Broadcasting and Digital Foundation (IBDF), emphasised that content regulation, which is central to broadcasting , should remain under the purview of the Ministry of Information and Broadcasting (MIB), rather than being incorporated into the Telecommunications Act.
She said that this could undermine the creative and constitutional aspects of broadcasting by treating it as merely a utility service, much like telecommunications, which could harm the unique identity and protection that broadcasting deserves.
“The proposed framework in this consultation paper blurs these lines and it blurs the line between these distinct areas of responsibility. It would be inappropriate to introduce a broadcast licensing framework under the Telecommunication Act, considering that the Act does not encompass a large portion of what broadcast also covers, which is content regulation. We have also submitted in more detail, but just like to reiterate at this occasion, that there is a need to recognize the distinction between broadcast and telecommunications,” Sagar said.
The consultation paper issued by TRAI on October 30, highlights that various broadcasting platforms, such as Direct-to-Home (DTH) services, HITS, IPTV, FM Radio etc, currently receive licences and permissions from the Ministry of Information and Broadcasting (MIB).
MIB had requested TRAI to recommend terms and conditions, including fees, for these broadcasting services. The goal is to standardize regulations and align them with the new Telecommunications Act. The paper is aimed at establishing a new framework for service authorizations related to broadcasting services.
While welcoming the stakeholders at the OHD, TRAI Chairman A K Lahoti said this consultation paper is based on a reference received from the Ministry of Information and Broadcasting on 25th July 2024.
“The ministry highlighted that at present the various licenses, permissions and registrations for services such as DTH, HITS, teleports, DSNG, SNG, uplinking and downlinking of TV channels, FM radio broadcasting, community radio stations and IPTV are granted under section 4 of the Indian Telegraph Act, 1885.
“However, with the notification of section 60 of the Telecommunication Act, 2023, the Indian Telegraph Act, 1885 shall stand repealed from the appointed date. Consequently, the eligible entities shall be required to obtain authorization from the broadcasting services under section 3.1 of the Telecommunication Act, 2023 once it is notified. Accordingly, it is imperative to align the extent of policy guidelines of broadcasting services with the provisions of the Telecommunication Act, 2023,” Lahoti said.
Debate over Distinction
During the discussion, Sanjay Agarwal, Vice President, Times Network and representing National Broadcasting Digital Association (NBDA), strongly emphasized that broadcasting services are distinct from telecommunications, with broadcasting focusing on content creation and expression, while telecom merely serves as an infrastructure for communication.
He argued that the two should not be conflated despite technological advancements allowing broadcasting through telecom infrastructure. He stressed the importance of keeping content and carriage separate to preserve the unique identity of broadcasting and opposed integrating broadcasting into the Telecom Act, as it would indirectly regulate content, undermining the established frameworks for broadcasting.
“Broadcasting services are quite distinct from telecommunication services. Telecommunication services are infrastructure-based. It is just a medium which enables conversation or communication and does not interfere with the content. Whereas the broadcasting services, on the other hand, is a creative and expressive medium. The main emphasis is on the content, which appeals to the target audience.
“With the technological advancements, it is now possible also to get the delivery of the broadcasting services through telecom infrastructure. But in no manner can it be suggested that the broadcasting service is a telecom service or is like a telecom service. It has a separate identity and its separate identity should be maintained,” Agarwal said.
Broadcasters argued that there are well-laid-out guidelines, acts, and regulations for the broadcasting services and there is no need to bring in the same under the Telecom Act.
“Hence, we always try not to consider a licensing framework that indirectly regulates content through telecommunication legislation. The concept of bringing 350-odd broadcasters under the telecom license. What is the purpose? What is the rationale?” questioned Agarwal.
Raj Kumar Varier, Counsel, ABP Network, who also represented NBDA, said that including all the television programming services, television distribution services may be right to the limited extent of DTH and IPTV but bringing broadcast under this, will mean “rolling back to the previous situation when this is settled by the government itself in the telecom bill that broadcast is not part of the telecom. So, therefore, to the extent of inclusion of broadcast services is concerned, it seems to be misconceived.”
"My humble request is to withdraw this consultation for broadcast services, as it should only apply to DTH and IPTV, which have always been governed under Section 3 or 4 licenses. Provisions for these can be prescribed under the new Act and rules,” he said.
Rahul Vatts, Chief Regulatory Officer, Bharti Airtel made several key points, emphasizing the need to include OTT platforms in the regulatory framework to ensure fair competition, as they currently operate without any obligations, unlike regulated services such as DTH and cable.
He also called for a tailored regulatory approach, with separate terms for different services like DTH and broadcasting, to address their unique operational needs.
“I just want to make the first point about the inclusion of OTT platforms. The OTT platforms are delivering broadcast content via broadband or mobile. And they must be brought under the authorization framework based on the simple principle of same service, same rules. These platforms currently operate without any obligations, without any license, creating an unfair competitive advantage over heavily regulated services like DTH and cable operators.
“The second big point I wanted to make was on the tailored regulatory framework. Imposing uniform terms and conditions across all service categories unnecessarily extends the stringent requirements to entities like the DTH operators. And separate terms for television, programming, distribution, radio services are necessary to address the unique operational requirements,” he said.
Vatts supported voluntary migration to the new authorization framework, ensuring stability for existing operators.
“The third big point I wanted to make was on the migration to the authorized framework. And the migration as we had said earlier also during the telecom authorization discussion, that the authorization migration should be voluntary, which will allow provision allowing services providers to continue operating under existing licenses. Even during the transition sir, there are services which have been allotted in a particular way, including administratively allocated spectrum for the services that must remain under the original terms, protecting the current investments and operational stability.
He advocated for including DD Free Dish in the same regulatory framework as private DTH operators, maintaining current DTH fees to ensure fairness, and streamlining approval processes for teleports to improve business efficiency.
“DD Free Dish provides commercial broadcasting services, but operates outside the regulatory framework and boundary, which is applied to other DTH operators. Including DD Freedish in the same regulatory framework as private DTH operators will restore fairness and support market sustainability,” he said.
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