“The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications.”
-- Supreme Court judgment on airwaves, 1995

Last week, at a party hosted by a senior executive from India’s largest private FM network, the conversation naturally veered towards radio broadcasting. Someone mentioned a CNBC-TV18 news report of a Muzaffarpur shop-owner who had put together a Rs 50 transmitter and a cassette recorder, and was broadcasting film songs to a rapt audience. ‘FM Mansurpur One’ - as its owner calls it – is illegal, said the reporter, but “who cares as long as his audience loves him”.

“Well, the DoT cares, as he will find out,” I said drily, remembering how media coverage had killed several pirate (unlicensed) radio stations in the past, perhaps the best known being the World Bank supported Mana Radio community radio project in Oravakal (Andhra Pradesh) in 2002, which was closed down within four months for broadcasting without a license.

Somewhere deep in the bowels of South Block, there must be fat files dating back to the 1940s full of untold stories of pirate radio stations in India, from the legendary Congress radio of the Quit India movement to the FTII’s irreverent 70s pirate station, Radio M*C* (signifying an improper relationship with one’s mother!).

India’s broadcast laws are so archaic -- the primary Act dates back to 1885 and speaks of ‘wireless telegraphs’ a.k.a radio and television -- and so obscure that hardly any college kid who rigs up a classroom transmitter is aware that he is breaking the law. So much so that the Supreme Court, in a landmark judgment in 1995, sharply criticized the government for continuing to rely on a law which was “intended for an altogether different purpose when it was enacted.”

The Indian Telegraph Act 1885 is a piece of repressive colonial legislation aimed at keeping communications technology out of the hands of turbulent natives.

When the venerable Commonwealth Broadcasting Association met last week in Delhi for its General Conference, its Secretary General Elizabeth Smith unveiled the CBA-Unesco guidelines for broadcasting regulation. When I asked her about the possibility of persuading the Indian government to adopt the ‘model law’ set out in the book, she tactfully replied that this may be desirable, but of course it was up to each country to decide what kind of broadcast legislation was best for itself.

To quote the Supreme Court, broadcast law in our country has “stood still, rooted in the Telegraph Act of 1885”. The Act doesn’t go much beyond defining telegraphs and posts (“a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line”). Along with the 1933 Wireless Telegraphy Act and its subsequent amendments, this is considered good enough to regulate broadcasting in the age of satellite radio, webcasting, podcasting and WiFi radio!

When I put this to N S Ganesan, Engineer-in-Chief of Doordarshan, in a recent TV interview, he vigorously defended the validity of the 120-year-old Act. And certainly it has been of great help to the State broadcaster, having successfully killed off all possible competition for 75 years and more.

Until the 1990s, broadcast regulation in India consisted almost entirely of banning all private radio and television. The 1991 Gulf War changed that by beaming the action live into people’s homes (well, hotels) by satellite. The Cable Television Networks (Regulation) Act of 1995 duly followed, but not before the unstoppable expansion of private TV networks.

Almost at the same time, the Supreme Court – in a case related to satellite uplink of TV signals – declared that airwaves are public property, to be used for public good. Radio had to wait for another five years before the government opened up FM to private players. By then, WorldSpace satellite radio had also entered the Indian market – unregulated, thanks to holes in the Telegraph Act.

Since the 1990s, the government has been fire-fighting with radio and TV policy. As the apex court pointed out, “the law in this country [has not kept] pace with the technological advances in the field of information and communications”, and not only were the chickens of 1885 coming home to roost, they were coming back as vultures.

Alarmed by reports of STAR TV entering the DTH market, the government’s knee-jerk reaction was to ban DTH altogether in 1997. It took four years for the government to address its “concerns of national security and cultural invasion”, and withdraw the ban on DTH in 2001. The ill-wrought policy on CAS (Conditional Access System) didn’t fare any better, leading to a Mexican stand-off between cable operators, broadcasters and the government. Digital terrestrial broadcasting is still not permitted to private players, though the technology is available, and conserves the spectrum.

Even while FM radio was opened up to commercial players, news was banned on private radio. This move, though dubious in law and unenforceable in practice, has not been officially challenged. But as every radio listener knows, the private players go ahead anyway and broadcast news under a variety of innovative names. Some channels, like GO FM Mumbai, even announce ‘Brand New News’ and ‘all the news you can use.’

In a curious twist, Prasar Bharati has used the news ban to protest the sale of broadcast rights of cricket to private FM players, arguing that cricket commentary is ‘news’. Meanwhile, the CEO of Prasar Bharati has gone on record to say that the ban on news is ‘illogical’ - such is the ‘uncertainty, confusion and consequent litigation’ predicted by the Supreme Court.

With 300 FM channels coming up in the months to come, the impossibility of monitoring or enforcing the ban on news across 91 cities must be weighing heavily on the government, for reports are already trickling in that the PMO is reconsidering the ban. In spite of the I&B Minster’s recent comments on the perils of allowing the uneducated classes to listen to radio news, I have no doubt that, by the time the new FM channels go on air, the ban on news will be a thing of the past.

In the last 10 years, one or two attempts were made to sort out the mess of broadcast regulations, one being the Indian Broadcast Bill of 1997 (anyone heard of it?). As I discovered recently, it cannot even be found on any website, so comprehensive was its demise.

The Communications Convergence Bill of 2000 didn’t fare any better: it was buried by a Group of Ministers in 2003, thanks to political and bureaucratic horror at the thought of dealing with a ‘super-regulator’ -- the Communications Commission of India (CCI), as envisaged in the Bill -- with powers to regulate both the telecom and broadcasting sector, and manage the spectrum. That was about the last time I heard of the Broadcasting Regulatory Authority Bill 2000, too.

It is time for the country to stop tinkering with its archaic broadcast legislation, and enact a proper broadcast law that addresses both technology and content. And also set up an independent broadcast regulator, in accordance with Supreme Court directions. (Yes, we do have a ‘broadcast regulator’ in the form of TRAI and, no, TRAI cannot do the job.)

On the subject of licensing, the CBA-Unesco guidelines advocate the ‘beauty parade’ method for developing radio markets, where applicants are judged not just by the bid amounts, but also by which programming proposals are the best. And selecting the best requires “core judgment which requires the full breadth and expertise of skills on the regulatory board”. Selling frequencies to the highest bidder, warns CBA, “should not be considered unless and until there is a mature broadcasting market where programming will not suffer as a result.”

Sadly, India has neither a mature radio market, nor an independent regulator to oversee the development of radio. Three hundred FM channels have been sold without a thought to their programme content or public interest.

Today, like Pooh-Bah in The Mikado, the Ministry of I&B is the policy maker, licensing authority and regulatory body, all rolled into one. The failure of Phase I of FM licensing in 2000 was a failure of policy, a warning that complex issues like FM radio licensing in a developing market will not succeed without an independent regulator with “the full breadth and expertise of skills” that the job demands.

The flaws of Phase II are now beginning to show: too many bidders and too few frequencies in some cities and vice versa in others; the lack of serious players in poorer markets; the avoidable exercise of surrendering excess frequencies, potentially leaving some cities with no FM channels at all; the need for an immediate Phase III to paper over the cracks in Phase II. Without a regulator in place, emerging issues like content regulation, monitoring, violation of codes, complaints handling and ownership questions will also come to haunt the Ministry.

In May 2004, when TRAI held open house discussions on FM radio, these concerns were raised, but the Chairman of TRAI, Pradip Baijal, shrugged his shoulders and said, “Content regulation on FM is a can of worms that I will not open.”

In the years to come, if the growth of radio takes place in a regulatory vacuum – guided by expediency, impelled by profits, and scrutinized only for the twin bogeys of revenue loss and national security -- the government’s failure to enact a broadcast law and set up an independent regulator will exact a price from both the listener and the broadcaster.