Tag: pay TV

COMMENTS AND SUGGESTIONS ON THE PROPOSED AMENDMENT OF The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007.

COMMENTS AND SUGGESTIONS OF -CONSUMER OF TELEVISION SERVICES, LAST MILE SERVICE PROVIDERS AND THE DISTRIBUTION PLATFORM OPERATORS DPOs ON THE PROPOSED AMENDMENT OF The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007. 

The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 has been enacted with the objective to provide free access of events of national importance to 100 + crore citizens as reflected in the Parliamentary debate to the bill. The Government of India has power under Sec. 2(1) (s) of this 2007 Act, to declare any sporting event as event of national importance, which can be accessed on a free to air basis by citizen to protect citizens’ cultural right to have unhindered access to such events. Since, every citizen cannot be physically present in the stadium to watch sports events or can afford the payment of exorbitant subscription fee being charged on a monthly basis, towards the Pay TV Channel(s) subscription telecasting these events of national importance.

The union parliament, passed this law in 2007 to provide free to air basis access to them. The 2007 act, has been made in the line of ‘Listed events’ of UK and ‘anti- siphoning list’ of Australia, whereby these events are protected for free to air access to the citizens. In UK and Australia, these are protected events as part of cultural rights of the citizens and recognized in European Union also. Objective is to curb commercial monopoly and exploitation, and to facilitate and protect the cultural rights of citizens.

The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 is nothing but the adoption of well-established global regulation and practices adopted by all civilized nations, to protect the interest of its citizen’s with respect to, cultural rights, sporting events, etc. of national or international importance and use of airwaves in public good.

Since August 2017 Indian citizens have been deprived from watching sports events of national and international importance on Prasar Bharti DD channels , such as , Commonwealth Games , French Open, ODI World Cup of Women, South East Asian Games, Australia Open, Winter Olympics , FIFA World Cup, Wimbledon, Asian Games, Summer Youth Olympics, US Open, Women Hockey World Cup, Indian Premiere League Cricket etc. The top 10 popular sports in India are :- Cricket including IPL, Football, Kabaddi , Badminton, Hockey, Tennis, Wrestling, Boxing, Motorsports and Basketball.

Whereas Prasar Bharati Doordarshan services are being operated on Indian tax payers’ contribution made to the public exchequer where the government provides a budgetary support to Prasar Bharati. Since there is tax payers’ money flowing into this Prasar Bharati Corporation, the government is equally answerable to the Parliament and as well to the citizens of this country especially the tax payers and the underprivileged.

The analogue terrestrial network and mode of transmission have become completely obsolete and redundant during the past one decade, that have been adequately replaced by the mandatory Digitalization of Television services. Whereas there aren’t any manufacturers or suppliers of the aluminum rod element based terrestrial Yagi Antenna that is necessarily required for tuning in towards terrestrial television transmission towers and thereafter receiving the analogue terrestrial transmissions signals of Prasar Bharati DD Channel (s)

Moreover if the consumers of TV services, have to compulsorily also get a DD FreeDish (DTH) installed for only watching the events of national and international importance in free-to-air mode, then why do they also have to pay a basic service charge of Rs. 130 plus GST each month to a Cable TV service provider or DTH service provider or an IPTV service provider, under the new TRAI notified tariff regulation of 2017   where the DPO (Distribution Platform Operator ) is also compulsorily carrying all the Prasar Bharti- DD channels under the mandated must carry provisions and notifications made by the Ministry of Information & Broadcasting, Government of India from time to time.

Whereas enumerated below are the few salient features of “The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 (Act 11 of 2007) and rules made there under :

……5. Responsibility of a television or radio channel broadcasting the sporting event—If the television or radio broadcasting service provider is different from the content rights owner or holder, it shall be its duty to ensure that adequate arrangements for compliance with the provisions of the Act and the rules are made at the time of acquisition of the rights from the content rights owner or holder.

  1. Manner of declaration of sporting events of national importance— (1) The list of sporting events of national importance shall be determined and notified by the Ministry of Information and Broadcasting in consultation with the Ministry of Youth Affairs and Sports and the Prasar Bharti.

(2) An event of national importance once included in the list shall remain a sporting event as such for a period of four years from the date of its inclusion unless deleted or withdrawn earlier.

(3) The Ministry of Information and Broadcasting may, review the list of sporting events of national importance at any time and at least once in the month of February of each calendar year as per sub-rule (1), and consider new proposals for inclusion or deletion and notify amendments, if any” ……….

However It becomes imperative to also state here, that the notifications made by the Ministry of Information and Broadcasting in consultation with the Ministry of Youth Affairs and Sports and the Prasar Bharti. “In exercise of the powers conferred under clause (s) of sub-section (1) of section 2 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 (11 of 2007) read with sub-rule (1) of rule 6 of the Sports Broadcast Signals (Mandatory Sharing with Prasar Bharati ) Rules 2007   have been being issued in the most arbitrary manner without considering relevant aspects and in complete apathy to common citizens of this country and their interest in sporting events.

Where by, an individual or a few decision makers in the Government cannot decide on behalf of 125 + crore citizens of this country w.r.t what event(s) is/ are of national and international importance. This undemocratic practice in past have led to manipulations / corruption, that was easily susceptible to mal practices with a compelling reason for not doing so in order to protect some private pay TV broadcasters’ commercial interests, monopoly and exploitation of these sports broadcasting rights and they have therefore failed to exercise its powers in a fair, just and transparent manner and such notifications run contrary to the Rights Guaranteed to the Citizens of India under Part III of the Constitution in addition to it being sans objective rules, International best practices or adequate mechanism to adequately address the interest of Millions of Viewers in the country.

As now, upon finally realizing its shortcomings of past few years, the Ministry of Information and Broadcasting, Government of India, have invited comments and suggestion from the Stakeholders, industry and the public at large on its proposal to make the required amendments, due for a long time in The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 . Wherein the DPOs and the end consumers of the television services (Public at large ) makes the following suggestions and recommendations in the 2007 Act: w.r.t inserting the relevant amendments.

  • 3. Mandatory sharing of certain sports broadcasting signals.–(1) No content rights owner or holder and no television or radio broadcasting service provider shall carry a live television broadcast on any cable or Direct-to-Home network or radio commentary broadcast in India of sporting events of national / international importance, unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks and also on the Prasar Bharati Channel (s) that are being mandated for carrying compulsorily by (a) “distribution platform” means distribution network of a DTH operator, multi-system operator, HITS operator or IPTV operator; in such manner and on such terms and conditions as may be specified. (2) The terms and conditions under sub-section (1) shall also provide that the advertisement revenue sharing between the content rights owner or holder and the Prasar Bharati shall be in the ratio of not less than 75:25 (Insert and replace to 50:50 ) in case of television coverage and 50:50 (Insert and replace to 35 :65) in case of radio coverage. ( The duration of advertisement / commercials shown in a clock hour, shall not exceed the permissible duration as defined in Rule 7 (11) CTNR Act. 1995 and TRAI prescribed QoS and QoE Regulations of 2012)

 

  • 6. Manner of declaration of sporting events of national importance— (1) The list of sporting events of national / international importance shall be determined and notified by the Ministry of Information and Broadcasting in consultation with the Ministry of Youth Affairs and Sports and the Prasar Bharti and the committee constituted of eminent citizens, sportspersons, Hon’ble Retd. Judges and members of civil society who only in consultation with each other decide on what event(s) is / are of national and international importance and the same shall be notified for mandatory sharing with – Prasar Bharati.

 

A curious case of Inflationary Adjustment conducted by #TRAI #Telecom #Regulatory #Authority in India, for some mysterious reasons, which had only benefited select business entities in India and abroad, with more than Rs.10,000 Crores wrongly collected from #IndianConsumers

Important list of dates and associated events:

  • On April 30th 2012 TRAI comes out with DAS interconnect Regulation, keeping the tariff for cable television services under forbearance (Self Control) under this TRAI Regulation No. 09 of 2012.

TRAI DAS Interconnect Regulation DAS 30.04.2012

  • In February 2014 TRAI approached the Hon’ble Supreme Court of India and filed an Interlocutory Application (I.A.) Nos. 71-75 of 2014 in CA no. 829-833 of 2009 in the ongoing case of TRAI Vs Set Discovery and Ors, and sought permission of the Hon’ble Court to review the Tariff Order as there are industry demands for the same, as no inflationary hike had been permitted since 2009.The Hon’ble Supreme Court allowed this IA based on and submissions made by TRAI and in its order dated 28th February 2014 held as under:

“On going through the averments in these applications, the Appellate Authority is permitted to review the tariff ceiling to make adjustment for inflation and notify the same, in exercise of its powers conferred under section 11(2) of the TRAI Act, 1997”

  • Thereafter only, without following the due consultation process the TRAI notified THE TELECOMMUNICATION (BROADCASTING AND CABLE) SERVICES (SECOND) TARIFF (ELEVENTH AMENDMENT) ORDER, 2014 on 31st March, 2014. Giving effect to the increase of 27.5 per cent which was allowed in two installments i.e. vide Eleventh Amendment, 15% increase was allowed w.e.f. 01.04.2014 and a second installment of further 12.5% increase was allowed vide Thirteenth Amendment w.e.f. 01.01.2015 vide this Telecommunication  (Broadcasting & Cable) Services (Second) Tariff Amendment Order 2014  (hereinafter referred to as (TAO) dated 31.12.2014 –

TRAI 11th (TAO) 31.03.2014

TRAI 13th (TAO) 31.12.2014   

  • An Appeal was made in the Hon’ble TDSAT on this arbitrary TAO issued by TRAI dated  31.03.2014 The Appellants inter-alia contended that such increase in tariff is arbitrary and  without jurisdiction and affects the entire broadcasting sector, having the cascading effect against the interest of individual TV viewers / consumers. That in view of the arbitrary increase in tariff made by the TRAI, the Hon’ble TDSAT vide its order dated 29.05.2014 directed all the stake-holders to maintain a separate account in regard to the collection on the basis of the Eleventh T.A.O., so that if the said appeal succeeds upon the final adjudication of the increased tariff issue, the individual subscribers making an excess payment in terms of the Eleventh T.A.O. could be entitled to adjust for the succeeding month(s) from the respective LCO’s/MSO’s, the LCO’s be entitled for adjustment from MSO’s and the MSO’s be entitled for adjustment from the broadcasters.

TDSAT Order of 29.05.2014

Thereafter a judgment dated 28.04.2015 was delivered by the Hon’ble TDSAT in this Appeal, with the following observations made, those are reproduced below:

…… The entire increase is arbitrary as it is on an ad-hoc and interim fixation, as such itself arbitrary in the first place. The increase is otherwise also wholly arbitrary and suffers from non-application of mind.

The impugned tariff order has been issued in complete violation of section 11(4) and there is no transparency whatsoever in the process adopted by the TRAI.

 Before we conclude, we think that TRAI will be well advised to have a fresh look at the various tariff orders in a holistic manner and come out with a comprehensive tariff order in supersession of all the earlier tariff orders. While doing so, it may consider all the agreements and relevant data available with it. It may consider differentiating between content which is of a monopolistic nature as against that the like of which is shown by other channels also. It may also consider classifying the content into premium and basic tiers. It may identify the major cost components so that increase or decrease in such costs may be suitably factored while working out the inflationary hikes. Increase in costs of such components as may be available in indexes such as WPI, GDP deflator etc. can then be applied. While working out the tariffs, the effort should be to encourage a correct declaration of SLR. While carrying out the exercise, it may take the inputs from various stakeholders and give a reasoned order for accepting or rejecting the same. We want to be amply clear that the above are only some suggestions and TRAI being an expert body may arrive at suitable tariffs independently; it is up to it to consider the above and/or any other factors…..

 Final Order dated 28.04.2015 passed by the Hon’ble TDSAT

  • This final order dated 28.04.2015 was challenged by the Indian Broadcasting Foundation and other Pay TV broadcasters before the Hon’ble Supreme Court of India, in Civil Appeal No(s). 5159 – 5164 of 2014, 5277-5282 of 2015, 5289-5294 of 2015, 5352-5357 of 2015 and 5283-5288 of 2015 wherein the Appellants were made the Respondents. However, the Hon’ble Supreme Court, after hearing all the parties, refused to interfere with the order of remand dated 28.04.2015 passed by this Hon’ble TDSAT in Appeal no. 1(C) to 6(C) of 2014 and directed the TRAI to review the tariff orders in a holistic manner and come out with a comprehensive tariff order in supersession of all the earlier tariff order. The Hon’ble Supreme court also directed the Respondents therein to not to insist for the refund of the amount collected by the pay TV broadcasters till the matter is finally adjudicated and dismissed the said appeals filed by various pay TV broadcasters and IBF vide order dated 04.08.2015.

Hon’ble Supreme Court Judgement / Order dated 04.08.2015

  • That after considering various factors regarding the fixation of tariff and in the light of the directions contained in the final order dated 28.04.2015 passed by this Hon’ble TDSAT and the order dated 04.08.2015 passed by the Hon’ble Supreme Court of India, the TRAI came to the conclusion that no inflationary increase is required and published the said decision vide Press Release No. 28/2016 dated 09.05.2016.

TRAI Press Release No 28 of 2016 dated 09.05.2016

  • As there is a mention of GDP Deflator and refers to an Industry representation, in this TRAI Press Release No.28 of 2016 issued by TRAI on 09.05.2016 “This was done as per industry demand as no inflationary hike had been permitted since 2009.” , basis which  the Eleventh and Thirteenth T.A.O. were notified. Hence a detailed representation was sent, addressed to the Chairperson of TRAI   Mr. Ram Sewak Sharma with the following prayers made :

PRAYERS

We claim following reliefs that TRAI must:-

  1. withdraw the 2nd amendment dated 01.12.2004, 3rd amendment dated 29.11.2005, 8th amendment dated 4.10.2007 and 9th amendment dated 26.12.2008 and
  2. Roll back the price ante 26.12.2003 by reducing the same by 80% in the interim while progressing with the cost based tariff. (stake holders reasonably expect that when cost has gone down then price as on 26.12.2003 be reduced by 80% in the interim)
  3. Provide copy of GDP Deflator referred in Press Note No : 28 of 2016
  4. Provide copy of Industry Representation based on which 11th and 13th Amendment to Second Tariff Order was notified
  5. Notify the cost based tariff at the earliest

Copy of Detailed Representation made to CP TRAI dated 12.08.2016

  • As there was no response / reply received on this detailed representation made to CP TRAI ”  Chairperson, Telecom Regulatory Authority of India”  even though after repeated reminders sent, eventually a RTI request was made to CPIO  TRAI  and the following information was sought from the CPIO TRAI :
  1. In case the expert body TRAI have made an indicative or experimental GDP deflator please provide details of the same, or was it the same GDP deflator as made by Ministry of Statistics and Programme Implementation (India). As for the purpose of Telecommunication services and the same must be revealed with complete details.
  2. We request you that the representation made by the Industry be revealed to us. In case the industry is also permitted to make oral demand which can be easily complied with by TRAI, please provide all the details.

“The Ld. Central Public Information Officer (CPIO) refused to provide information by referring to irrelevant, incomplete information such as the copy of GDP Deflator prepared by the expert body TRAI   the data for analysis of GDP Deflator was taken from website of World Bank, which is available in public domain”

  • Thereafter a RTI appeal was made to the RTI Appellant Authority in TRAI  but the requested information was not provided for some mysterious / unknown reasons.  Hence a second appeal was eventually made to the “CIC” Central Information Commission ” on 12.05.2017 on the grounds that information should be provided.
  • This said complaint / appeal made to  CIC finally came up for the hearing on 07.03.2018 and upon hearing the Appellant  and Respondent (TRAI)  an order was passed

Central Information Commission order dated 07.03.2018

This said order passed by CIC was not complied to by TRAI  hence a complaint was made on 24.03.2018

Complaint Dated 24.03.2018 made to CIC

Only thereafter  CPIO  TRAI made a compliance to this order passed by CIC vide its compliance made on 17.04.2018

TRAI compliance to CIC order dated 17.04.2018

  • Pertinent to mention here , that no where in this only  ” Industry Representation” made by IBF to TRAI  ” it says that  the tariff for television services be increased as no inflationary hike had been permitted since 2009″ moreover it only states therein to keep the tariff for cable television services under forbearance (Self Control) ” (as it was already under forbearance since 2012)  and TRAI should conduct a comprehensive tariff consultation exercise.

This arbitrary tariff hike made by TRAI vide its TAO issued on 31.03.2014, have resulted in an unjust enrichment to few pay TV broadcaster (Members of IBF) and their directly and indirectly aligned  DPOs (Distribution Platform Operators) where more than Rs. 10,000 Crores have been wrongly collected  from the consumers of television services and the same have still not been adjusted / refunded to the Cable TV and DTH consumers/ subscribers in the country.

  • Moreover, very interestingly  when representations were made to this regulatory authority TRAI  to take an appropriate action for facilitating  adjustment or refund of this huge an amount, wrongly been collected from the Consumers / Subscribers of television services in the country,  on account of these arbitrary TAO s  issued without any application of mind, in a hurry when the entire nation was undergoing its 16th Lok Sabha general elections and an election commission code of conduct was already in place w.e.f 14.02.2014.

This is the response of the Regulator, TRAI received on various representations made to them :

TRAI reply received dated 13.07.2016 on various  Representations made

The TRAI vide its this letters dated 13.7.2016  has replied that “In the above TDSAT order of 29.05.2014, the Hon’ble TDSAT has not given any direction to TRAI. Therefore TRAI has nothing to say in this regard. In view of the above, you are free to approach the appropriate forum in this regard.