Flawed & incorrect: NBDA on TRAI proposal to bring broadcast services under Telecom Act

The News Broadcasters and Digital Association (NBDA) has strongly opposed the consultation paper issued by the Telecom Regulatory Authority of India (TRAI), which proposes bringing broadcasting services under the authorization regime of the Telecommunication Act, 2023. The NBDA has described the proposal as "flawed and incorrect".

TRAI had on October 30 issued its consultation paper on the Framework for Service Authorisations for the provision of Broadcasting Services under the Telecommunications Act, 2023, seeking comments/ feedback from stakeholders.

In its comments, NBDA has submitted that “the basic premise of including broadcasting services within the authorization regime under the Telecommunication Act, 2023, is flawed and incorrect. All the questions posed in the CP appear to be predicated on an implicit assumption that broadcasting services are inherently integrated within the scope of telecommunication services.”

Broadcasting Service cannot be clubbed under Telecom Services

The body also said that broadcasting services cannot be clubbed with telecommunication services.

“Historically broadcasting services were brought under the definition of telecommunication services just for extending the jurisdiction of regulatory authority TRAI on the television distribution services.

“With the massive growth of the private broadcasting services in the late 1990s and early 2000 and with the augment of DTH broadcasting, there was a need felt to bring the broadcasting services (primarily the television distribution services) under a regulatory authority. Since there was no decision taken on establishment of an independent regulatory authority to regulate the broadcasting distribution services, it was decided by the Government of India to bring the broadcasting distribution services under the ambit of the existing Regulatory Authority entrusted with the telecommunications i.e., TRAI,” association noted.

It further said that broadcasting is currently intended to be regulated under the Uplinking and Downlinking Guidelines and Cable Television Networks Regulation Act, 1995, both under the MIB.

“Notably, TRAI’s present consultation disregards these developments, suggesting an approach that could reintroduce similar requirements under the Telecommunications Act—potentially in a more restrictive form. This appears to be an attempt to impose telecommunication style authorizations on broadcasting, an incongruity that suggests the need for TRAI to collaborate with MIB on a coherent, unified broadcast regulation strategy,” it said.

The last date for receiving written comments on the issues raised in the Consultation Paper from the stakeholders was fixed as 20th November 2024 and for counter-comments as 27th November 2024.

Keeping in view the requests of some of the stakeholders for an extension of time for submission of comments, TRAI extended the last dates for submission of written comments and counter-comments up to 27th November 2024 and 4th December 2024 respectively, saying that no further requests for extension would be considered.
The consultation paper was issued after MIB, released a letter on July 25 under Section 11(1)(a) of the TRAI Act, 1997, requesting the authority to provide its recommendations on the terms and conditions, including fees or charges; for authorization to provide broadcasting services, with the objective of aligning it to the Telecommunications Act, 2023 and harmonizing the terms and conditions across various service providers, so that the terms and conditions for the authorizations of broadcasting services may be notified as Rules under the Telecommunications Act, 2023.

Convergence is a technological construct

Opposing the proposals of TRAI in the consultation paper, the NBDA also said there is a fundamental difference between broadcasting and telecommunication.

“The convergence between telecommunications and broadcasting services is incorrectly assumed in the CP. The convergence, if any, is only at the delivery mode in some distribution mediums and not all. The telecommunication services only transmit the voice / data from one person to another, and does not, in any way relate to generating the content of that voice/data. In contrast, broadcasting services involve generation of content which appeals to a wider audience and is done in a one-to-many manner as against one-to-one in telecom.

It also said that the convergence will lead to monopolies in the sector, ongoing economies of scale and scope.

“That one of the key goals in moving to a converged regulatory framework is to achieve technology neutrality. This term is intended to convey the meaning that a licensee retains the ability to choose the technology and equipment it will use to provide the licensed service. The main objective of the unified licensing framework should be to promote ease of doing business and sustain competition. However, an integrated framework for the regulation of carriage of broadcasting services will lead to monopolies in the sector, ongoing economies of scale and scope,” the association said.

Broadcasting is an exercise of freedom of speech and expression

NBDA further said that broadcasting is an exercise of freedom of speech and expression with regard to licences issued under Section 4 of the Telegraph Act by the Government.

“Thus, it is an important question which needs to be examined as to whether bringing broadcast in the ambit of telecommunication would result in Government control and influence on media, which would result in redefining the very philosophy of “free speech” and make it subject to licensing terms. Broadcast of free speech cannot be construed as an act which requires licensing from the Government,” it said.

The association said there was no rationale to include broadcasting services under telecommunication services and the distinct identity of broadcasting services should be maintained.

“The broadcasting industry is dependent on human creative abilities whereas the telecommunication industry is driven by technical advancements and technology,” it said while opposing the proposals.

Strongly opposing the CP, the NBDA said that it appears to be based on a fundamental misconception, presuming that broadcasting services could seamlessly align within the legal construct of telecommunication services.