#e4mExclusive:  FAST services are not telecom services: Sony, JioStar push back against TRAI

Top broadcasters Culver Max Entertainment and JioStar have mounted a strong legal and constitutional challenge against the Telecom Regulatory Authority of India’s (TRAI) proposal to bring Free Ad-Supported Streaming Television (FAST) and Application-based Linear Television Distribution (ALTD) services under a formal regulatory framework, arguing that internet-based television platforms fall outside telecom laws and should not be treated like traditional cable or DTH operators.

In detailed submissions filed before TRAI in response to its consultation paper on regulating ALTD and FAST services, both companies contended that OTT-delivered linear television services operate on the “application layer” of the internet and are fundamentally different from telecom carriage infrastructure governed by the Telecommunications Act, 2023.

The consultation paper, issued following a reference from the Ministry of Information and Broadcasting (MIB), seeks views on whether internet-delivered television-like services should be subjected to authorisation requirements similar to those applicable to DTH, IPTV and cable operators.

The move comes amid growing pressure from legacy distribution platform operators (DPOs), represented by the All India Digital Cable Federation, which has argued that FAST platforms are creating regulatory arbitrage by offering television channels without complying with licensing, carriage and tariff obligations imposed on traditional broadcasting distributors.

“Application Layer” vs “Network Layer”

Both companies argued that FAST and ALTD services merely use telecom infrastructure rather than provide telecommunication services themselves.

Culver Max said FAST platforms package audiovisual content into internet data packets and deliver them through software applications, while the actual transmission is carried out by telecom operators and internet service providers operating broadband and cellular networks.

“ALTD including FAST services are unequivocally users of telecommunication networks, and not providers of telecommunications,” the company said, warning that equating internet applications with telecom carriage networks would amount to “comparing un-equals as equals”.

JioStar echoed the same distinction, arguing that the separation between “application layer” services and “network layer” infrastructure is a foundational principle of the internet architecture.

The company said OTT platforms do not establish public telecom networks, seek spectrum allocation or provide end-to-end connectivity, and therefore cannot automatically be classified as telecommunication service providers merely because content travels over internet infrastructure.

Constitutional challenge to telecom-style licensing

A major plank of the submissions is the argument that bringing FAST platforms under telecom licensing rules would violate constitutional protections relating to freedom of speech and business.

Both companies cited Article 19(1)(a) of the Constitution, arguing that internet-based dissemination of audiovisual content is protected speech and cannot be indirectly regulated through telecom licensing conditions.

JioStar argued that extending telecom-style authorisation requirements to OTT services could create “manifestly excessive and constitutionally problematic consequences”, potentially pulling digital publishers, gaming platforms, video conferencing services, social media intermediaries and even ordinary websites into telecom regulation.

The company further said that such regulation would fail the proportionality test under Article 19(2) because internet-based platforms do not rely on scarce public resources such as spectrum — the historic basis for telecom and broadcasting licensing regimes.

Culver Max similarly argued that the “scarcity principle” underpinning telecom regulation does not apply to application-layer services operating on the open internet, where multiple services can coexist without infrastructure limitations.

TRAI’s own past stand cited

In a significant legal argument, Culver Max cited multiple affidavits filed by TRAI and the MIB before courts over the years, where authorities had previously stated that OTT services do not fall under TRAI’s jurisdiction.

The company referred to proceedings before the Delhi High Court, including the All India Cable Operators Association vs TRAI case, in which TRAI had stated in an affidavit that its broadcasting regulations applied only to DTH, cable TV, HITS and IPTV platforms and “do not cover OTT services”.

Culver Max also cited past MIB submissions stating that dissemination of content over the open internet is governed by the Information Technology Act, 2000 and not by broadcasting carriage regulations.

Both companies argued that Parliament had consciously excluded OTT services from the final Telecommunications Act after earlier drafts of the legislation had proposed including them within the definition of telecom services.

Industry warns of chilling effect on investment

The broadcasters also warned that introducing licensing, entry fees, bank guarantees, net-worth norms and compliance obligations for FAST platforms could hurt India’s emerging digital television ecosystem.

JioStar said FAST services remain at a “nascent and experimental stage” and imposing a traditional television distribution framework would create “massive and insurmountable entry and continuity barriers”.

The company argued that the proposed framework could force consolidation, increase compliance costs and discourage investment across the wider smart TV ecosystem involving operating system providers, OEMs and app developers.

Culver Max similarly warned that the proposed regulatory approach would undermine innovation, reduce consumer choice and contradict the government’s Digital India and ease-of-doing-business objectives.

Both companies instead urged TRAI to pursue “regulatory forbearance” for traditional cable and DTH operators rather than extending legacy broadcasting rules to digital services.

Opposition to mandatory carriage and sports sharing

The submissions also rejected proposals to impose obligations similar to those applicable to traditional DPOs, including mandatory sharing of sports broadcasting signals with Prasar Bharati and compulsory carriage of designated channels.

The companies argued that such obligations historically stem from spectrum scarcity and regulated broadcasting ecosystems and cannot be legally extended to internet-based services operating over open networks.

They also opposed suggestions that smart TV manufacturers and operating system providers should act as compliance gatekeepers for ALTD applications, calling such proposals impractical and legally untenable.

The responses underscore the growing battle between legacy broadcasting distributors and digital streaming platforms as India’s television ecosystem rapidly shifts toward internet-delivered viewing models.