#e4mExclusive:  MIB draws regulatory line between OTT and TV broadcasting in AIDCF-Waves dispute

The Ministry of Information and Broadcasting (MIB) has told the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) that Prasar Bharati’s Waves over-the-top (OTT) platform does not fall within the broadcasting regulatory framework governing satellite television channels, seeking dismissal of a petition filed by the All India Digital Cable Federation (AIDCF).

In its reply filed in Broadcasting Petition, the ministry has argued that OTT platforms are technologically and functionally distinct from satellite broadcasting and that the Guidelines for Uplinking and Downlinking of Satellite TV Channels in India, 2022, cannot be applied to internet-based content delivery.

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The ministry has also challenged the maintainability of the petition under Section 14(a)(ii) of the Telecom Regulatory Authority of India Act, 1997, which deals with disputes between two or more service providers. It has maintained that the dispute concerning Waves does not involve a licensor-licensee relationship or a dispute between service providers that would bring it within the tribunal’s jurisdiction.

The reply, filed on behalf of the Ministry of Information and Broadcasting, states that the ministry is neither the licensor nor the licensee of the Waves OTT platform and has been unnecessarily arrayed as a respondent.

The filing denies the petition’s allegations to the extent that they are inconsistent with the ministry’s submissions. It contends that the relief sought against the ministry is misconceived because the functioning of an OTT platform has no connection with the satellite television uplinking and downlinking guidelines.

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The dispute raises a regulatory question for the television distribution industry: whether content distributed over the internet can be subjected to rules designed for satellite television channels merely because the content providers may also operate conventional linear television services.

MIB says OTT distribution is distinct from satellite broadcasting

A key argument in the ministry’s reply is that the operation of an OTT platform does not involve uplinking or downlinking television signals in the manner contemplated under the 2022 guidelines.

According to the filing, AIDCF’s case rests on an erroneous assumption that the dissemination of content through an internet-based platform is equivalent to the transmission of satellite broadcast signals.

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The ministry has argued that OTT platforms receive and deliver content through internet protocol (IP)-based networks. This process, it says, is fundamentally different from satellite signal distribution and therefore does not attract the requirements of the uplinking and downlinking guidelines.

The reply states that the ministry ensures compliance with these guidelines by regulated entities, including multisystem operators (MSOs), cable operators, direct-to-home (DTH) operators, internet protocol television (IPTV) service providers and headend-in-the-sky (HITS) operators.

However, OTT platforms do not fall within any of these categories, the ministry has contended.

Consequently, it has argued that the question of ensuring compliance with the satellite television guidelines, as sought by AIDCF in its petition, does not arise in the context of Waves.

The ministry has also opposed the request for a licensing and regulatory framework for broadcasting content over OTT platforms, as well as the demand to restrict the dissemination of such content.

It has maintained that OTT platforms are governed by the Information Technology Act and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. On this basis, the ministry has argued that there is no need for it to frame a separate licensing framework under the satellite broadcasting regime or undertake restrictive action against OTT content distribution under the guidelines cited by the petitioner.

The reply reiterates that OTT services do not fall within the domain of broadcasting as covered by the existing framework and that the petition is therefore misconceived and misdirected.

Ministry invokes TRAI’s 2017 tariff order

To support its position, the ministry has cited the explanatory memorandum accompanying the Telecom Regulatory Authority of India’s 2017 tariff order.

The memorandum addressed suggestions from stakeholders to include OTT platforms and Doordarshan within the definitions of a “distribution platform” and “distribution platform operator”. Stakeholders had also proposed that the definitions cover OTT operators, Doordarshan and any platform distributing television channels to subscribers.

TRAI had rejected the suggestions on the ground that its tariff order applied only to distribution platforms and operators for which the Ministry of Information and Broadcasting granted a permission or licence.

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Since OTT operators and Doordarshan were not covered by permissions or licences granted by the ministry, the authority had concluded that they did not fall within the existing framework.

The ministry has relied on this explanation to argue that OTT platforms cannot be brought within the definition of a distribution platform or distribution platform operator under the TRAI framework.

The reply states that the position adopted by TRAI in 2017 is consistent with the ministry’s understanding that OTT platforms, including Waves, are not covered by permissions or licences granted under the existing regime.

It has therefore argued that the matter does not require intervention by the ministry under the current regulatory framework.

The argument is significant for the distinction it draws between the regulation of conventional television distribution and the delivery of video content through internet-based platforms. While the former operates within a framework of permissions and distribution regulations, the ministry’s position is that OTT services cannot be brought into the same framework simply because they distribute video content.

TDSAT’s 2023 observation cited in defence

The ministry has also relied on an earlier observation by TDSAT in its October 4, 2023, order in All India Digital Cable Federation versus Star India Private Limited, Broadcasting Petition No. 217 of 2023.

In paragraph 47 of that order, the tribunal had observed, on a prima facie basis, that an OTT platform was not a television channel and that the respondent did not require permission or a licence from the Central government.

The ministry has reproduced this observation in its reply to support its argument that an OTT platform is distinct from a conventional television channel and is not subject to the same licensing requirements.

The filing uses the earlier observation to reinforce its contention that the tribunal should not treat internet-based content distribution as equivalent to satellite television broadcasting.

The reference, however, is to a prima facie observation in the 2023 order. The ministry has cited it in support of its position in the present dispute; the reply does not establish that TDSAT has already ruled on the maintainability or merits of the current petition.

Waves’ content sourcing does not attract satellite guidelines, says MIB

The ministry has separately addressed the notices inviting applications issued by Prasar Bharati for sourcing content for Waves.

According to the reply, these notices concern content acquisition for the OTT platform and do not involve the operation of satellite television channels under the uplinking and downlinking regime.

The ministry has stated that, as with other OTT platforms, content for Waves is received through an internet protocol-based network and made available to viewers through the same mechanism.

It has argued that this process neither attracts the satellite television guidelines nor warrants policing, interference or restrictive action by the ministry under those guidelines.

A central element of AIDCF’s case, according to the reply, is its reliance on the term “Linear Satellite Channel” in the context of content providers associated with the Waves platform.

The ministry has contended that the term has been used generically to describe content providers who may also operate linear satellite channels in another context. Its use in connection with OTT content, it says, should not be interpreted as bringing the platform’s operations within the definition of a linear satellite channel under the Cable Television Networks Rules, 1994.

The filing refers to Section 6(6) of the Cable Television Networks Rules, 1994, in arguing that the actual process of sourcing and disseminating content for Waves does not involve the features of a linear satellite channel as defined under those rules.

The ministry has thus sought to distinguish the nature of the content provider from the mode through which the content is delivered. A provider’s association with a conventional television channel, it argues, does not automatically make its content distribution through an OTT platform subject to the satellite broadcasting framework.

Ministry seeks rejection of all reliefs

On the basis of these arguments, the ministry has maintained that OTT platforms do not fall within TDSAT’s jurisdiction in the context of the dispute and that the petition is not maintainable.

It has sought dismissal of the petition, stating that no case has been made out for granting the reliefs sought by AIDCF against respondent No. 2.

The ministry has also reserved the right to file a further reply, if required, at a subsequent stage of the proceedings.

The case reflects the boundary between two regulatory approaches: the permission-based framework governing conventional satellite television distribution and the information technology rules that the ministry says govern OTT platforms. The tribunal’s consideration of the petition will determine how the dispute proceeds, but the ministry has made clear that it does not believe the existing satellite broadcasting guidelines can be extended to Waves on the basis of its internet-based distribution model.