Overview of Regulations
The pay TV landscape is regulated by:
- The Ministry of Information and Broadcasting (MIB), the policy, licensing and content regulator for broadcasting, information, films, and other forms of media. The MIB processes applications and provides licenses for uplinking and downlinking of a proposed TV channel into India or from India under the Uplinking and Downlinking Guidelines
- The Telecom Regulatory Authority of India (TRAI), a statutory body created under the Telecom Regulatory Authority of India Act, 1997 is the carriage regulator and issues orders, regulations, directions, recommendations, and policies on tariffs, quality of service, and interconnection, etc. The MIB also seeks recommendations from TRAI prior to formulating its policies.
- The Telecom Disputes Settlement and Appellate Tribunal, a dispute settlement forum for matters of original jurisdiction and appeals
What will be changing?
The MIB had sought stakeholders’ comments on the draft Cable TV Networks (Regulation) Amendment Bill, 2020, but there has so far been no decision made. The Bill would inter alia:
- inserts definitions for Company, Distribution Platform Operators, Direct to Home, Headend-in-the-Sky, Internet Protocol Television, Local Cable Operator and Multi System Operator
- prevents the state governments and their entities, urban and local bodies, religious and political bodies etc. from registering as cable operators
- allows the centre to direct that certain channels operated by or on behalf of Parliament be mandatorily carried by the cable operators
- provides strict penalties for contravention of the prescribed advertisement code
The MIB had sought stakeholders’ comments on draft Policy Guidelines for Uplinking and Downlinking of Television Channels from India, 2020, but no final version of the Guidelines has been announced. The draft would inter alia provide for:
- easier permissions for uplinking and downlinking by applying online on the Broadcast Seva portal of the MIB
- the Ministry of Home Affairs to revoke the security clearance (granted before allowing broadcast and valid for 10 years) in case of repeated violations leading to termination of license
- penal action, including warning or prohibition of broadcast and even cancellation of permission for use of dual channel logos or using a name/logo not approved by the MIB; uplinking content not adhering to the Programme and Advertising Code under the CTN Act; delay or non-intimation about change in the shareholding pattern of the company; appointment of a Director without prior permission of MIB; and non-removal of a Director who has been denied security clearance by the Ministry of Home Affairs
- suspension or cancellation of permission of channels which remain non-operational for over 90 days
- temporary live uplinking of events (excluding news or current affairs) for non-news channels by simply registering online with Broadcast Seva five days prior to the event
As of September 2020, both the Cable TV Amendment Bill and the Draft Uplinking/Downlinking Guidelines remain pending.
Separately, on 26 August 2020, the MIB released the Policy Guidelines for IPTV services in India. See https://mib.gov.in/sites/default/files/ilovepdf_merged_1.pdf
Copyright Protection
The Copyright Act, 1957 (Copyright Act) grants copyright protection to creators of literary, dramatic, musical and artistic works, cinematograph films, and sound recordings, and prohibits any unauthorized TV broadcast of copyrighted work to the public, saving exceptions including use for criticism or review set out in the Copyright Act
Each broadcasting organization has (independent of the copyright that rests with the creator or owner of the work being broadcast) the following broadcast reproduction rights for a term of 25 years from the broadcast being made:
- right to re-broadcast the broadcast
- right to cause the broadcast to be heard or seen by the public on payment of any charges
- right to make any sound recording or visual recording of the broadcast
- right to make any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence
- right to sell or hire to the public, or offer for such sale or hire, any sound recording or visual recording of the broadcast
A broadcaster may apply to the Intellectual Property Appellate Board for a statutory license to broadcast any literary, musical works and sound recording which is already published by the copyright holder, after giving prior notice of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and pay to the owner of rights in each work, royalties in the manner and at the rate fixed by the Board.
The Copyright Act provides both civil and criminal remedies for violation of copyrighted content.
Per the Sports Act, all content owners and broadcasters must simultaneously share live broadcasting signals of sporting events of national importance with Prasar Bharati to enable them to retransmit the same through Prasar Bharati’s own terrestrial networks and direct-to-home networks.
What will be changing?
The MIB introduced and tabled the Draft Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) (Amendment) Bill 2018 in 2019, which provided for the Prasar Bharati to put shared signals of the sports events of national interest (Olympics etc.) on privately-owned cable/DTH and IPTV platforms. (The extant Sports Act limits the live feed received by Prasar Bharati from the private sector broadcasters only to transmission through Doordarshan’s terrestrial and DTH networks, and not for cable operators.) This proposal ran into stiff opposition from broadcasters and sports rights owners. As of January 2019, the draft Bill has been unofficially put on hold and it is unclear when it might move forward.
Convergence & New Technologies
India has formally recognized the following kinds of Distribution Platform Operators (DPOs): multi-system operators (MSOs), local cable operators (LCOs) or direct to home (DTH) operators, IPTV service providers, and Headend-In-The-Sky (HITS), all regulated by the MIB and TRAI under the aforementioned legislations and regulations.
The regulators have continually pushed the broadcasting space to be more consumer friendly, and in the absence of any regulations prohibiting the entry of new technologies in the market, the OTT space is booming.
What will be changing?
There is no policy mandating convergence, however, the bundle of amendments made in the regulations on broadcasting in the recent past have acknowledged the need for allowing and recognizing new technologies.
Licensing of Foreign Channels
A foreign channel must seek MIB’s permission for downlink registration in India based on a retransmission contract with an Indian Company (irrespective of its equity structure, foreign ownership or management control) fulfilling the eligibility criteria prescribed under the Downlinking Guidelines. This permission is valid for 10 years.
A channel which is permitted to uplink from India and caters to foreign audiences only is not required to seek registration under the Downlinking Guidelines.
TV channels operating and uplinked from India for foreign viewership only are not required to comply with the Programme Code and the Advertisement Code under the CTN Rules, provided that the uplinked content does not contain anything which is against the sovereignty, integrity and national security of India or its relations with friendly countries.
Licence Fees and Taxation
For Satellite TV Channels:
- INR 10,000 per channel is paid as a non-refundable processing fee
- annual permission fee for uplink for both News and Non-News current affairs channels is INR 200,000
- registration fee for downlinking of channels that are uplinked from abroad is INR 10,00,000
- annual permission fee for downlinking is INR 5,00,000 per channel uplinked from India and INR 15,00,000 per channel uplinked from abroad
- the period of permissions is 10 years
For MSOs: Processing fee of INR 100,000 for registration which remains valid for 10 years.
For Teleports: INR 10,000 per teleport as non-refundable processing fee + Permissions fee of INR 200,000 per annum, the permission is valid for 10 years + license fee and royalty fee prescribed by the Wireless Planning and Coordination wing of the Department of Telecommunications (WPC).
DTH Operators: Entry fee of INR 100,000,000 + license fee of 10% of gross revenue payable annually + license fee and royalty for spectrum used as prescribed by the WPC.
HITS: Entry fee of INR 100,000,000 + license fee and royalty as prescribed by WPC for spectrum used. No annual fee is payable. The license period is 10 years.
There is no fee for temporary uplinking of non-news & current affairs channels for live broadcast.
Additionally, state entertainment taxes, often excessively high, are levied on pay TV service providers.
What will be changing?
Under the draft Policy Guidelines for Uplinking and Downlinking of Television Channels from India, 2020, the license fees remain the same as before.
Rate Regulation
Per channel rates for pay TV are regulated by TRAI per the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff (Second Amendment) Order, 2020 of 1 January 2020 (NTO 2020), wherein inter alia:
- the sum of the a-la-carte rates of pay channels in a bouquet can’t exceed ½ times the rate of the entire bouquet of which such pay channels form a part
- the a-la-carte rate of each pay channel in a bouquet can’t exceed 3 times the average rate of a pay channel of the bouquet of which such pay channel is a part.
- the maximum retail price (mrp) per month of a pay channel cannot exceed the monthly mrp of the bouquet containing that pay channel
- channels must be priced at less than INR 12 to be part of a bouquet
- distribution platform operators must provide all channels available on their platform for less than INR 160 per month
- a maximum fee of 40% of the declared network capacity fee can be charged for two or more TV connections registered in the name of one person
- A cap of INR 4 lakh per month is imposed on carriage fee payable by a broadcaster to a distribution platform operator for carrying a channel
What will be changing?
In 2017 the TRAI issued the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017, the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 and the Telecommunication (Broadcasting and Cable) Services Standards of Quality of Service and Consumer Protection (Addressable Systems) Regulations, 2017 (collectively the New Tariff Order), which came into effect on 1 February 2019. By January 2020, significant amendments were made to the New Tariff Order under the NTO 2020, within only 10 months of the New Tariff Order coming into effect.
The IBF and other stakeholders have challenged the 2020 amendments in the New Tariff Order before the Bombay High Court, and there is growing concern that the broadcasters’ ability to compete with other unregulated platforms will be adversely affected, as the amendments excessively constrain industry pricing flexibility. Various other stakeholders have filed writs across the country against TRAI, but the decisions of the courts are awaited.
Programme Packaging
The Cable Television Networks Act provides that the Central Government may direct TRAI to specify that one or more FTA channels providing a program mix of entertainment, information, education, be included in a package of channels which shall be offered as the Basic Service Tier (BST). The channels offered as part of such a tier must also be offered by cable operators on an a-la-carte basis.
Per the NTO 2020:
- DPOs must offer 200 channels for the Network Capacity Fee (NCF) of up-to INR 130 in addition to channels mandated by the Government, resulting in offering a basic tier of 226 channels to the subscriber at the NCF
- Consumers may choose any 200 FTA channels or bouquet(s) of pay channels
- The number of bouquets of pay channels can’t exceed the number of pay channels offered
- DPOs may declare different NCFs in different geographical areas
- DPOs have the flexibility of offering promotional schemes at par with Broadcasters
- DPOs must allow multi TV home subscribers to choose a different set of channels for each TV connection
What will be changing?
See above.
Advertising Restrictions
Per the CTN Rules, no program can carry advertisements exceeding 12 minutes per hour, including up to 10 minutes per hour of commercial advertisements, and up to 2 minutes per hour of a channel’s self-promotional programs (Rule 7(11)).
TRAI notified the Standards of Quality of Service (Duration of Advertisements in Television Channels) Regulations, 2012, to ensure service quality and protect consumer interests. While re-instating the 12 minutes per hour requirement under the CTN Rules, TRAI also mandated:
- In the case of live broadcast of a sporting event, the advertisements shall be carried only during the breaks in the sporting action.
- the time gap between the end of one advertisement session and the commencement of the next advertisement session shall not be less than 15 minutes. However, in the case of a movie broadcast, the time gap between the end of one advertisement session and the commencement of the next advertisement session shall not be less than 30 minutes. Lastly, this condition does not apply in case of live broadcast of any sporting event.
- A 2013 Amendment to the Regulations further mandated that the broadcasters are required to report the duration of advertisements carried on their channels to the TRAI on a quarterly basis.
Regulations on Dubbing/ Subtitling & Captioning
There are no local content quotas. Content on TV is broadly divided into news and current affairs, non-news and current affairs (entertainment) and advertisements and is regulated by statutory regulations and self-governing codes as under:
Non-News TV Channels:
- The CTN Act and Rule 6 of the CTN Rules (the Programme Code) sets guidelines to ensure that the content displayed is decent; does not incite violence, communalism; does not encourage superstitions; is not obscene or defamatory; does not showcase women or children in a derogatory fashion; is suitable for unrestricted public exhibition and doesn’t contravene the provisions of the Cinematograph Act, 1952; and that content for adults should be broadcast after 11:00PM and before 6:00AM and ensure that there is no negative impact on children.
- The Electronic Media Monitoring Centre (EMMC) was established by the MIB for effective monitoring of content of various TV channels for violation of the provisions of the Programme Code or the Advertisement Code, CTN Act and CTN Rules, or any other laws of India. The EMMC reports violations to a committee of the MIB for scrutiny, which then examines the purported violations and forwards its findings to the IMC for further action
- State-level and District-level Monitoring Committees constituted by MIB to hear complaints on content carried locally and decide on violations
- The Self-Regulation Guidelines for General Entertainment and Non-News and Current Affairs TV channels (Self-Regulation Guidelines) and the Content Code and Certification Rules 2011 (Content Code) adopted by the Indian Broadcasting Foundation (IBF), a self-regulatory body, are applicable to all non-news broadcast programs on TV by IBF members, setting out guidelines and good practices for service providers
- The Broadcasting Content Complaints Council (BCCC) set up by the IBF handles complaints filed against any program broadcast on TV and can also initiate suo moto proceedings against any program broadcast on a non-news and current affairs TV channel. The complaints received against a channel that is not a member of IBF are forwarded to MIB for appropriate action
News and Current Affairs Television Channels:
- The Code of Ethics and Broadcasting Standards (NBA Code) formulated by the News Broadcasters Association (NBA), a self-regulatory association, states principles and guidelines to be adhered to by NBA members in their news channel broadcasts
- The News Broadcasting Standards Regulations (NBSR) of the NBA constitutes the News Broadcasting Standards Authority (NBSA) to enforce the compliance of the NBA Code and adjudicate disputes amongst members
What will be changing?
Due to a court case that raised controversy over the content of a news channel in September 2020, there have been talks of having content regulation for all news channels. The NBA has requested the Supreme Court to give it legal powers to implement its self-regulatory content codes in all TV news channels, including non-member news channels.
The Supreme Court and Indian government have yet to decide on the request.
Regulations on Languages
Per the Accessibility Standards for Persons with Disabilities in Television Programmes, 2016, issued by the MIB, service providers are obligated to deliver subtitles/closed captioning/sign language across specified television programs in the same language as the content, in order to ensure access by the hearing-impaired to such television programs. Service providers and broadcasters have the option to choose either one or more of the methods prescribed depending upon what suits the format of the program and requirement of the viewers.
However, live news, live telecast of sports or music shows, advertisements, debates and reality TV shows are exempt from the requirement.
Programme Supply Restrictions
Exclusivity is generally not allowed. A broadcaster must:
- provide signals of their television channels on a non-discriminatory basis to DPOs upon request, unless the DPO is a defaulter
- not enter into an agreement or engage in any practice for provision of its channels with a DPO to the exclusion of any other DPO
DPOs must:
- upon request, carry the channel of a broadcaster on a non-discriminatory basis provided the DPO has spare channel capacity for the same. A DPO can, however, refuse to continue carrying a channel for a maximum period of a year if the channel is not subscribed to by at least five percent of the monthly average active subscriber base of that distributor in the target market specified in the interconnection agreement with the broadcaster
- not enter into an agreement with a broadcaster or engage in any practice such as to prevent other broadcasters from gaining access to the DPO’s network
- maintain a list of channels that are pending distribution due to non-availability of spare channel capacity, and when such capacity is available, allocate every alternate spare channel slot to the channels in the pending list sequentially
- upon request, provide signals of television channels to the local cable operators (not including a DTH operator) on a non-discriminatory basis, unless the local cable operator is a defaulter, or is located at a place where it is not feasible to provide signals
No service provider may prohibit another from providing services to any subscriber or in any geographical area.
Under the Sports Act, it is mandatory for every broadcaster displaying coverage of specified sporting events of national importance to share it, without advertisements, with Prasar Bharati to enable retransmission of the same.
FDI Restrictions
The competent authority to grant approval for foreign investment in broadcasting is the MIB.
Per the Uplinking and Downlinking Guidelines:
- An applicant desirous of setting up uplinking hubs or teleports should not have foreign equity holding including NRI/OCB/PIO exceeding 49% of its total share capital.
Per the FDI Policy:
- 100% FDI is permitted under the automatic route for investment in Teleports (setting up of up-linking HUBs/Teleports); DTH; Cable networks (MSO’s operating at National or State or District level and undertaking upgradation of networks towards digitalization and addressability); Mobile TV; HITS
- 100% FDI is permitted under the automatic route for investment in Cable networks (Other MSOs not undertaking upgradation of networks towards digitalization and addressability and LCOs)
- 49% FDI is permitted under the government route for investment in uplinking of News & Current Affairs TV channels
- 100% FDI is permitted under the automatic route for investment in uplinking of Non-News & Current Affairs TV channels and, or, downlinking of TV channels
- The infusion of fresh foreign investment, beyond 49% in a company not seeking license/permission from MIB, that results in change in the ownership pattern and, or/ transfer of shareholding to a foreign investor, requires government approval
What will be changing?
In Kantar Market Research Services Private Limited vs. Union of India (W.P. (C) 494/2014), the prohibition of cross holding between rating agencies and advertising agencies per the Television Rating Agencies in India, 2014 (Guidelines) was challenged.
The petitioner argued that the Guidelines were issued without jurisdiction as there was no specific rule of law authorizing such action. The petitioner further submitted that, in absence of any rule of law, the Guidelines are void. The matter is presently pending before the Delhi High Court.
Retransmission Arrangements
A notification issued by MIB dated 14 December 2011, directed all MSO’s, LCO associations and DTH operators to compulsorily transmit Doordarshan and Parliament Channels on satellite and cable TV networks, further to Section 8(1) of the CTN Act. Further notifications directed that every cable operate must retransmit at least 2 Doordarshan terrestrial channels and one regional language channel of a state in the prime band and added more channels that must be carried by all broadcasters. The last advisory MIB issued on 10 December 2019 brought the count of channels that must be compulsorily re-transmitted to 27. Platform operators are not required to provide renumeration to channel owners for this retransmission.
Consumer Protection
An MSO must establish a complaint centre in the service area for redressal of complaints and addressing customers’ service requests per the CTN Rules.
Under the Quality Regulations, 2017:
- MSOs must publish a consumer’s charter for addressable cable TV systems with the following information: (i) name and details of linked local cable operator; (ii) terms and conditions of service; (iii) rights of consumers under different regulations; (iv) consumer care number; (v) procedure for termination/disconnection of service and any other information
- Distributors must establish a customer care centre for addressing customer service requests and redressal of complaints, which: (i) have a toll free customer care number with sufficient lines of connection; (ii) is accessible between 8:00AM to 10:00PM on all days of the week; (iii) provide services in the regional language of the service area apart from Hindi and English; (iv) have an Interactive Voice Response System with a provision for complaint registration; and, (v) have an online complaint management system
- Distributors must deactivate channels within 72 hours of receiving a request from subscribers. No cooling-off period has been prescribed
- Distributors cannot discontinue bouquets or modify the composition of channels during its lock-in period or for the period for which the subscription amount has been paid in advance
- Distributors must disconnect broadcasting services after a request has been made by subscribers and refund the amount due to the subscriber
Entering a New Market: FAST TV
Not applicable
Data Handling
The limited data handling and privacy norms in India are set out in the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 which broadly provide that data should be processed with consent and in a lawful manner. There are no data localisation requirements in place.
What will be changing?
The Ministry of Electronics and Information Technology is tasked with the regulation of data security in India. The Personal Data Protection Bill, 2019 (PDP Bill) was introduced in the lower house of the Indian parliament on 11 December 2019 and the Standing Committee has been tasked to prepare a report. The PDP Bill governs the processing of personal data by: (i) government; (ii) companies incorporated in India; and (iii) foreign companies dealing with personal data of individuals in India. The PDP Bill seeks to regulate the processing of data and stipulates that personal data can be processed only for specific, clear and lawful purpose.
The Department for Promotion of Industry and Internal Trade had released a new draft e-commerce policy, proposing data localisation and streamlining of the operations of e-commerce companies. However, e-commerce companies raised several concerns. The final policy is yet to be issued.
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