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HomeArticlesRegulationsThe Regulated vs the Regulator
Thursday, 10 November 2016 05:58

The Regulated vs the Regulator

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Participating in a discussion at the 5th Annual Media, Advertising & Entertainment legal summit  2016 on 20 October titled ‘ the Good old Media Wars- The Regulated Vs the Regulators’, I felt  that title of the discussion should have been the ‘unregulated vs the Regulator’ because till date Broadcast sector does not have any section of the Industry regulated except of course, thousands of Small Cable TV Operator’s who are regulated by Cable TV Act of 1995 but being very small and too widespread, have no strength to fight the Regulator. Being not so conversant with English language in which all are regulations are written, they do not even understand what the regulator has in store for them. 

Talking of other stakeholders like DTH operators, Pay Broadcasters and(HITS)  are regulated only by some Guidelines which have no meaning as being flouted left, right and Centre under the very nose of the Regulator and the Ministry. 

Some of the glaring examples are STB interoperability, Ad cap regulation, Tariff orders, cross media, holdings restrictions, monopolizing a market etc. 

 Every regulation or tariff order that these big players find not beneficial to them, they have gone to the courts and with a coterie of lawyers headed by ex-Ministers and well-known politicians, have managed to prolong the cases for years without any stay orders. In the meanwhile they continue with the violations unabated. 

The biggest problem with our courts is that they are too busy for these cases or they have to decide keeping in mind the existing laws and regulations which are faulty, created only to help a few large players. These laws and regulations are often drafted by the bureaucrats with the help of  National Industry Associations like FICCI, CII, ASSOCHAM etc where all the posts in their media and entertainment committees are held by top executives of these large media groups. Drafts are presented to the Ministry by legal advisors of these media companies since the bureaucrats are not aware of the nitty gritty of the industry. However, they explain the clauses to the Ministers convincing them of the necessity since they are expert in doing so and get them cleared by the parliament. 

 In cases where the Union of India is a party, influencing becomes much easier. The moment Ministry saw some High Courts in the states giving relief to small MSOs and Cable Operators against its decision of mandatory and hurried digitization, it moved the Supreme Court to transfer all the cases to Delhi where it is very easy to handle. 

Less than three months are left for Digitisation deadline of 31 December and any decision taken by the courts in favour of small players after this date would have no meaning because government would have achieved its aim, at least on paper, handing over the 160 million Cable TV homes served by the small operators to a dozen large players. 

Government is doing its best to help these large players in every way. They have been permitted 100% FDI so that, they can buyout the small players or just reach the consumers directly. Even some Ministers have made public statements to sympathise with the broadcasters to create a public opinion in their favour, much against the public interest. Affidavits have been filed in the cases against government’s own rules to help the large players. 

 Government has even kept Doordarshan and Freedish DTH behind the close doors as far as digitization is concerned. DD Terrestrial is struggling to become digital since 2003 and still struggling. I think it is deliberate. For many years we are hearing that DD FreeDish will have 200 channels but we are only able to upgrade to 80 channels in the recent past. We have further plans to reduce the viewership by introducing encryption on DD Freedish which will force all the existing viewers to discard their old STB and buy a new one costing at least Rs 1500/- to 2000/-. Many consumers may drop the service or go to cable/DTH.

This encryption is in the name of audience measurement. But question is when this platform was created to increase the reach of Doordarshan to the poorest of the Poor in every part of the country, particularly the  border areas where people freely receive broadcasts from neighbouring countries, why are we trying to find exact number of viewers. In any case, ad agencies never go for actual viewers in case of FTA  channels, they only see the TRP ratings provided by BARC who rely only on 32000 people-meters in the whole country. Much controversial TAM is a partner of BARC for these measurements. 

Let me just quote what MsAmbikaSoni stated in the Parliament in November 2011 replying during a debate on the Mandatory Digitisation Bill. 

On thousands of Cable Operators losing their livelihood after Digitisation:

Þdscy vkWijsVlZ dks blesa 6&6 eghuksa dks le; nsuk gSA blds vkykok vkfMZusal ykus ls igys geus dbZ busfCyax dkuwu xfBr fd, Fks] ftlls fd gsMUM bu n LdkbZ ¼fgV~l½ ftlls fMftVy flXuYl lh/kk dscy vkWijsVlZ rd igqap ldsA tks ,d vk'kadk tkfgj dh xbZ Fkh fd dscy vkWijsVlZ dks cgqr T;knk /ku&jkf'k yxkuh iM+sxh] mlh ckr dks jksdus ds fy, ge yksxksa us fgV~l dh ,d ikWfylh Hkh xfBr dh gSA ftldh cnkSyr tks O;fDr gsMUM bu n LdkbZ ¼fgV~l½ yxk,xk og dscy vkWijsVlZ dks lh/kk fMftVy flXuYl igqap ldrk gSA gj dscy vkWijsVlZ vius vki dks fMftVy cukus ds fy, dks 2&7 yk[k :i;s ls vf/d [kpkZ ugha djuk iM+sxkA blds vykok ge yksx fdlh dh Hkh jksth&jksVh ij jksd ugha yxk jgs gSa vkSj u yxkus dh ea'kk j[krs gSaA¸

Q. Learning from DAS 3- Are we ready for DAS 4

It is  a ‘NO’ in capital letters. Even if the government closes the Digitisation process on 31 December, digitization is impossible to reach the every nook and corner.

DTH operators who are the only one capable of doing this technically, cannot do because it  requires a massive backend support. Historically all six DTH players have the combined capacity of adding only 10 million subscribers every year. We still have about 60 million TVs to be connected. Let us not also forget that millions become inactive  DTH subscribers every year. The last TRAI figures put it at 50% in active subscribers. 

It will take years for the large MSOs to go to interiors they neither have the finances to do that nor are willing to connect smallest of the village as  it is economically a bad business. 

Government does not have adequate infrastructure in the interiors. BharatNet project is a clear example where target date to connect 2.5 lakh panchayats keeps shifting since December 2012 when the project was to be completed. With all the government resources, we have been able to connect only about 60000 of them till date. Now the end date has been moved to 2020. Crores are being spent on the project.

Our policies do not support the small operators running analogue networks so all of them will lose their livelihood after 31 December 2016 and millions will be deprived of TV if Analogue signals are switched off.

Monetisation from Digitisation

 Except some pay broadcasters, no one has been able to monetize from Digitisation. 

Large MSOs, what ever money they have made is from unauthorized means. Maximum money has come from activation fee which TRAI has not allowed so far. The other revenue has come from carriage and placement fee, not from selling the content. ARPUs have not gone up as perceived. 

Even on Value added stuff, it’s a total no-no. Broadband is in trouble because of licence fee issues and every large MSO is separating its Broadband operation from Cable TV operation.Communication Ministry demands 8% of the gross revenue including cable subscription from the MSOs providing broadband service, as an annual licence fee. No question of smaller MSOs making money. They have no money even trying to get their feed from the big ones to survive their operations. HITS and small MSOs are still struggling for the content, fighting with the Broadcasters in the TDSAT. 

LCOs are nowhere in the scene as far as monetization is concerned. Their struggle is just for survival at any cost. 

Broadcasters are the biggest beneficiaries, not only they have retained their old content rates which are impossible for the consumers to pay, they have further increased the rates after TRAI allowed  27.5% hike. They refuse to reduce after TRAI withdrew this hike on the directions of the Supreme Court. 

Out of 900 TV channels, about 200 pay channels owned by five or six large media companies are the only beneficiary. Ultimately, it is the two largest Pay Broadcasters who are owning dozens of Channels, making money, forcing their bouquets on subscribers through their vertically integrated DTH and MSO operations. 

Tariff issues: TRAI although revising all regulations now after five years, it is still concentrating on Broadcasters making more money. 

TDSAT judgment on RIO in the case of NSTPL is very good but Pay Broadcasters have found more ways to bypass this judgment making combined deals of content and carriage cost with their favoured MSOs. TRAI’s new Tariff that appears to do good for the consumers is yet to be finalized. 

Inspite of TRAI withdrawing its own order of 27.5 % hike in tariff, it has not directed  the broadcasters to refund the extra revenue collected in the name of this hike. Consumers, unfortunately are not aware of what is happening and are being exploited  the maximum in the name of Digitisation. 

Only the vertically integrated MSOs are benefitted so far from TRAI’s Interconnection regulations. Others are still complaining in the Task Force meetings requesting TRAI to intervene , so that broadcasters sign the agreements soon. 

Unregulated OTT services causing Damage to Cable & DTH

Most of the OTT platforms owned by Pay Broadcasters are delivering content free of cost or at a very minimal cost. Since Broadband penetration is very low yet, not much impact is experienced so far. But it is already worrying the DTH and MSOs as the services are increasing very fast. 

Freedom of Speech and Expression: Even those who had a different opinion (Times Now) have also fallen in line with the government. It’s only the money that speaks in the news channels. The government has made its point very clear by making MPs of the media honchos and giving high ranking National Awards. 

MIB has been known to gag any counter views since the digitization started in 2011. It does not matter which party is ruling the nation. 

Self Regulation  is only a lip service. Even now TRPs rule over National Interest. We are seeing this more since 26/11 and recently in this surgical strike  and suicide of a soldier. 

At the Advertising front we have no system of imposing heavy fines like some countries do. Zee was imposed a heavy fine in the UK for an astrology service ad. Advisories do not mean anything to our broadcasters. Again it is the money that speaks. 

There is no end to surrogate ads either. Imagine some news channels in their bulletins display the name of the sponsor on a plaque infront of the Anchor, all through the news apart from regular ads covering 3/4th of the screen. In conclusion, our present regulations hardly have any impact on the industry as there is no will to implement the same. 

At the end I would like to quote MsAmbikaSoni again when she talked about benefits to consumers.

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