Broadcasters see red as TRAI probes availability of linear channels on OTT, telco apps
The regulator has contended that this is in violation of Clause 5.6 of Policy Guidelines for Downlinking of Television Channels dated 5th December 2011
The Telecom Regulatory Authority of India (TRAI) issued an order last month directing broadcasters to furnish information regarding streaming of live linear channels on their over the top (OTT) platforms as well as third party telco apps, failing which action will be initiated against them under provisions of the TRAI Act.
The regulator issued letters to broadcasters on November 25 and asked them to furnish information by December 9. Broadcasters, including Sony Pictures Networks India (SPNI) and Sun TV Network, have challenged the TRAI's order before the Telecom Disputes Settlement and Appellate Authority (TDSAT).
In its letter to the broadcasters, the regulator had noted that the linear channels operated by them are available on their own apps like SonyLIV, and Sun NXT besides aggregator apps launched by telcos like Jio TV and Vodafone Play. This, the regulator contended, is in violation of Clause 5.6 of Policy Guidelines for Downlinking of Television Channels dated 5th December 2011. The regulator had also issued letters to broadcasters on 16th April 2021 seeking comments from them on the violation of Clause 5.6 of downlinking guidelines.
The clause 5.6 states that "the applicant company shall provide satellite TV channel signal reception decoders only to MSOs/Cable operators registered under the Cable Television Networks (Regulation) Act 1995 or to a DTH operator registered under the DTH guidelines issued by Government of India or to an Internet Protocol Television (IPTV) Service provider duly permitted under their existing telecom licence or authorized by Department of Telecom to provide such service”.
In their response to the TRAI letter dated 30th April, the broadcasters contended that as broadcasters they have right under section 37 of Copyright Act 1957 known as Broadcast Reproduction Right (BRR) to make their channels available on their own streaming apps as well as third party aggregator apps.
The broadcasters also argued that they are not licensees under TRAI Act, and thus they are not covered under the scope of TRAI Act or Interconnection Regulations or Clause 5.6 of Downlinking guidelines.
The TRAI issued another letter to broadcasters to provide a detailed architecture indicating which media is being used to deliver linear content to their own as well as third party platforms. The broadcasters responded by saying that the OTT platforms are outside the scope of jurisdiction accorded to TRAI. They also questioned the context under which TRAI is seeking this information.
In its order dated 25th November, the TRAI noted that the broadcasters have not provided the requisite information to examine whether there is violation of clause 5.6 of Downlinking guidelines.
SPNI and Sun TV have sought a stay the operation of the order dated 25.11.2021 purportedly issued by the TRAI in exercise of Section 12 of the TRAI Act, 1997 during the pendency of the present appeal. They have also urged the TDSAT to restrain the TRAI from taking any coercive action till the disposal of the present appeal.
The broadcasters have also sought an order quashing and setting aside of the order dated 25.11.2021 purportedly issued by the Respondent in exercise of Section 12 of the TRAI Act, 1997.
The petition filed by Sony and Sun states that the Section 12 of TRAI Act reveals that the scope of the powers enshrined thereunder can be exercised only with respect to service providers as defined under Section 2(1)(j) and licensees as defined under Section 2(1)(e) of the Act.
They also submitted that the actions taken by the TRAI for the purpose of licensing content on the OTT Platform and/or any third party OTT platforms are outside the purview of the Act and the Interconnection Regulations. Further, the OTT Platforms, which are also involved in the query sought by the TRAI, are not covered under the Act.
"Furthermore, for the purposes of the activity that is under consideration, i.e., licensing/provision of signals/content of broadcasters to an OTT platform, the broadcaster also does not qualify as a service provider, as defined under the Act, on account of the scope of activity being beyond the activities that are regulated under the Act," the petition states.
The broadcasters also noted that while initiating consultations in respect of OTT platforms by way of the 2018 Consultation Paper, the regulator had consciously limited the consultation to communication OTT platforms such as WhatsApp, Telegram, which they claim is acknowledgement that the OTT video services are beyond the jurisdiction of the Respondent under the Act. According to the petitioners, the TRAI order is in contravention of Article 19(1)(g), Article 14, and Article 300A of the Constitution of India.
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