Plan to bring broadcasting services under Telecom Act: TRAI to meet stakeholders this week

The Telecom Regulatory Authority of India (TRAI) is set to hold an open house discussion this week on its recently issued consultation paper titled Framework for Service Authorisations for Provision of Broadcasting Services under the Telecommunications Act, 2023, which suggests bringing broadcasting services under the ambit of the Telecom Act. The suggestion has sparked a debate over its implications for the industry, with many broadcasters deeming it "unnecessary" and beyond TRAI’s jurisdiction.

The paper highlights that various broadcasting platforms, such as Direct-to-Home (DTH) services, HITS, IPTV, FM Radio etc, currently receive licences and permissions from the Ministry of Information and Broadcasting (MIB). The MIB had requested TRAI to recommend terms and conditions, including fees, for these broadcasting services. The goal is to standardize regulations and align them with the new Telecommunications Act.

The paper is aimed at establishing a new framework for service authorizations related to broadcasting services.

Broadcasters question TRAI’s jurisdiction

Industry experts and broadcasters have raised concerns over the consultation paper, arguing that broadcasting falls under the Ministry of Information and Broadcasting (MIB) and not TRAI. "Broadcasting is governed by the MIB as per an Act passed by Parliament long ago. The Telecom Act does not override this allocation of business," said an industry expert.

The expert further explained that broadcasting encompasses more than transmission—it involves content as well, which the Telecom Act, including its 2023 iteration, does not define. "The term ‘broadcasting’ is absent from the Telecom Act, 2023. In my opinion, this consultation paper was unnecessary and lacks legal backing," the expert added.

TRAI’s consultation paper was released on October 30, 2024, seeking feedback from stakeholders. Initially, the deadline for written comments was set for November 20, 2024, with counter-comments due by November 27, 2024. However, following requests for extensions, TRAI revised the deadlines to November 27 and December 4, respectively, emphasizing that no further extensions would be granted.

Industry concerns over business allocation

The broadcasting industry is particularly concerned about the allocation of business between different government bodies. Another expert pointed out that any significant changes in jurisdiction would require extensive statutory and operational revisions. "This consultation paper overreaches beyond its mandate. The allocation of business is a complex issue that cannot be overridden by TRAI or the Telecom Act without significant legal and procedural changes," the expert noted.

Content vs. transmission debate

One of the core issues raised by stakeholders is the distinction between content and transmission. Broadcasting services, which include Direct-to-Home (DTH) operators, Headend-in-the-Sky (HITS) providers, and broadcasters, deal with both content and uplinking. However, content regulation falls under the MIB’s jurisdiction, not TRAI’s.

"The Telecom Act focuses on carriage and distribution, not content. TRAI lacks authority over content, which strengthens our argument against this proposal," said an industry representative. Concerns were also raised about potential attempts to include Over-the-Top (OTT) platforms under the Telecom Act, a move that many believe would be inappropriate. "OTT regulation should focus on content and remain under the purview of the MIB or copyright laws, not the Telecom Act," they added.

Stakeholders’ responses

NBDA’s Opposition

The News Broadcasters and Digital Association (NBDA) has strongly opposed the consultation paper, calling it "flawed and incorrect." In its submission, NBDA argued that the paper’s premise—that broadcasting services inherently fall within telecommunication services—is fundamentally flawed.

"All the questions posed in the consultation paper are based on the incorrect assumption that broadcasting services are integrated within telecommunication services. Broadcasting is a distinct domain that cannot be subsumed under the Telecom Act," NBDA stated in its comments.

Cable Operators’ Demand for Parity

On the other hand, cable operators have voiced concerns about regulatory disparities, particularly regarding DD Free Dish. The All India Digital Cable Federation (AIDCF) has urged TRAI to address unauthorized retransmissions and ensure parity between public and private DTH operators.

"Prasar Bharati, through DD Free Dish, operates as a DTH service provider, as acknowledged by courts and Prasar Bharati’s own website. While its public service mandate is recognized, this does not exempt it from adhering to the regulatory framework applicable to DTH services," AIDCF argued.

The federation warned that the current exemptions for DD Free Dish create market imbalances and lead to revenue losses for the exchequer. "Such exemptions distort the market and undermine private DTH operators," AIDCF added.

Experts believe that the proposal to bring broadcasting services under the Telecom Act could lead to only minor adjustments rather than drastic changes. "I don’t foresee broadcasting shifting to the Telecom Ministry. Such a move would require substantial changes to business operations and statutory frameworks," said an industry observer.

While TRAI’s consultation paper has stirred debate, many see it as an exercise unlikely to yield significant changes. "The government’s focus seems to be on understanding the broadcasting sector better, not on making sweeping reforms," the expert noted.

The consultation paper has opened a Pandora’s box of issues, from jurisdictional boundaries to regulatory parity and content oversight. With strong opposition from broadcasters and calls for parity from cable operators, the open house discussion is expected to be a crucial forum for airing grievances and clarifying ambiguities.

As TRAI navigates these contentious waters, the broader question remains: Should broadcasting, a domain historically governed by the MIB, be brought under the Telecom Act? Stakeholders across the spectrum seem to agree on one point—such a transition would require careful consideration of existing laws, industry practices, and the fundamental distinction between content and transmission. For now, the industry awaits TRAI’s next steps and the potential ripple effects on India’s broadcasting landscape.

“MIB, through a letter dated 25.07.2024, requested TRAI to provide its recommendations on the terms and conditions, including fees or charges; for authorisation 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 authorisations of broadcasting services may be notified as Rules under the Telecommunications Act, 2023,” TRAI said.

Some of the issues for consultation mentioned by TRAI are:

1. Under Section 3(1) of the Telecommunications Act, 2023, an Applicant Entity may receive authorization instead of a license from the Central Government. The Ministry of I&B will notify the terms and conditions for broadcasting services as Rules under this Act. Should there be safeguards to protect the interests of Authorized Entities in various broadcasting services?
2. Which approach should be adopted for migrating the existing licensee/ permission holders to the service authorisation framework?
3. Whether the extant penal provisions for breach of terms and conditions of license/ permission are appropriate or required to be modified to align with the provisions of the Telecommunications Act, 2023?
4. Further, in respect of violation of Programme Code and Advertising Code, whether the penal provisions should be adopted mutatis mutandis?  If not, what modifications are required?
5. Whether any changes are required in the extant eligibility conditions in respect of minimum net worth for inclusion in the Rules to be made under the Telecommunications Act, 2023 for the following service authorisations?

i)News & Current Affairs TV Channel

II)Non-news & Current Affairs TV Channel

III)Teleport/ Teleport Hub

6. Whether the extant eligibility requirement in respect of minimum net worth is required to be harmonized under the terms and conditions of authorisation for DTH and HITS services?