MediaRegulatory and institutional structure
Summarise the regulatory framework for the media sector in your jurisdiction.
The regulatory regime governing the media sector is contained under the Prasar Bharti Act 1990 and the Cable Networks Act 1995 and the rules framed thereunder. The institutional structures and government bodies regulating the sector include the Ministry of Information and Broadcasting (MIB) and the Prasar Bharti. These government bodies have been entrusted with the activities of governance through the issue of guidelines, policies and rules and the granting of licences for the broadcasting and electronic media sector. In 2004, broadcasting services and cable services were included within the ambit of telecoms services by a notification of the government. TRAI, in addition to the telecoms sector, has also been set up as the regulator for the media and broadcasting industry and the TDSAT has the power to adjudicate on disputes.Ownership restrictions
Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?
In India, the latest FDI Policy issued in 2016 lays down the caps, entry routes and other conditions applicable to the foreign investment in-flow into the Indian entities for various sectors, including the media services. The FDI Policy divides media services into the following categories and subcategories:
Broadcasting carriage services
An FDI cap of 100 per cent is permitted for teleports (ie, setting-up of uplinking HUBs or teleports; direct to home); cable networks (multi-system operators (MSOs) undertaking upgradation of networks towards digitalisation and addressability, operating at the national, state or district level); mobile TV; headend-in-the-sky (HITS) broadcasting services; and also cable networks, including MSOs, not undertaking upgradation of networks towards digitalisation and addressability and the local cable operators. The entry route for such services is by the automatic route up to 49 per cent and the government approval route between 49 per cent and 100 per cent.
Broadcasting content services
Up to 49 per cent FDI through the government approval route is permitted for the terrestrial broadcasting FM (FM radio) services.
Similarly, FDI up to 49 per cent through the government approval route is also permitted for the services of uplinking of news and current affairs TV channels.
FDI up to 100 per cent through the automatic route is allowed for the services of uplinking of non-news and current affairs TV channels and downlinking of TV channels.
FDI and investment by the non-resident Indians, persons of Indian origin and foreign institutional investors up to a total of 26 per cent through the government approval route is permitted for the services of publishing of newspapers and periodicals dealing with news and current affairs and for the publication of Indian editions of foreign magazines dealing with news and current affairs.
Up to 100 per cent FDI through the government approval route is allowed for the services of publishing and printing of scientific and technical magazines, speciality journals and periodicals. Publication of a facsimile edition of foreign newspapers is allowed up to 100 per cent through the government route.
Likewise, for the services of the publication of facsimile edition of foreign newspapers, FDI up to 100 per cent through the government approval route is permitted.
In addition to the above-mentioned entry routes and sectoral caps, the FDI Policy also imposes a condition that the entity or company receiving the foreign investment shall have to obtain the requisite licence and act in compliance with the conditions of such licence and those specified or notified by the MIB or any other government body from time to time in relation to the provision of such services. Besides these criteria, certain conditions have also been imposed with regard to the key personnel to be deployed by the entity receiving the foreign investment, such as the majority of directors on the board of the company, the chief executive officer, chief security officer and the chief officer in charge of the technical network operations must be Indian citizens or Indian citizens resident in India and, in compliance with like conditions, may require security vetting or clearance on a regular basis by the government.
At present there are no umbrella restrictions on cross-ownership of media companies, despite some guidelines for certain licences that forbid entities from controlling more than one broadcasting service in the same market. One such restrictive condition is contained in the guidelines for Direct to Home (DTH) licences, which state that:
Broadcasting companies and/or cable network companies shall not be eligible to collectively own more than 20 per cent of the total equity of the DTH applicant company, at any time during the licence period. Similarly, the DTH applicant company shall not have more than 20 per cent equity share in any broadcasting and/or cable network company.
However, in this regard it is pertinent to note that a proposed bill, the Broadcasting Services Regulation Bill, aims to impose certain cross-ownership regulations on media companies in addition to imposing restrictions on the accumulation of interests to provide for competition and plurality of views.Licensing requirements
What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?
The MIB has responsibility for the granting of licences for broadcasting and the regulation broadcasting services thereafter.
Applications for the licence or permission to provide broadcasting services in India have to be made to the MIB in the prescribed manner. Once the MIB grants permission, the industry players would have to comply with the conditions prescribed by the Ministry. The tenure of the licence or permits for uplinking non-news and current affairs channels is 10 years, for downlinking five years, for DTH 10 years, for cable TV network operators one year and for HITS broadcasting services 10 years.
Licensees are required to obtain security clearance from the Ministry of Home Affairs for security-related reasons. Additionally, for providing uplinking services, the applicant or licensee is required to obtain an additional clearance for usage of satellites from the Department of Space and from the WPC for obtaining a licence for operating wireless. The multi-channel downlinking and distribution of television programmes in the C-band or Ku-band (ie, the HITS broadcasting services, which were introduced into India in 2009) can be provided upon obtaining the HITS licence from the MIB.
With regard to the financial implications of these licences, permits and approvals, the entities obtaining a licence for uplinking, downlinking or DTH must pay the application processing fees, and annual licence fees and royalty payments on spectrum usage that have been prescribed by the WPC from time to time. DTH and HITS licensees are required to pay an additional non-refundable entry fee of 100 million rupees.Foreign programmes and local content requirements
Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?
The guidelines laid down by the MIB for the purpose of downlinking of television channels regulate the broadcasting of foreign channels in India. The guidelines do not specify requirements of local content on television channels, but they do stipulate the must-carry obligations for the broadcaster. Additionally, the service provider downlinking the registered channels shall be obligated to comply with the Programme and Advertising Code prescribed under the Cable Television Networks (Regulation) Act 1995 in addition to any other codes, standards, guidelines rules or restrictions that have been prescribed by the MIB for regulation of content on television channels from time to time. Content restrictions are also imposed through licensing terms and conditions. Any content that is considered offensive to morality or decency, that promotes superstition, is defamatory, denigrates India’s sovereignty and integrity, affects national security or is in contempt of court, is restricted from being broadcast through any service or medium in India.
Further, no news or current affairs channel shall be permitted to be downlinked if it does not carry any advertisements aimed at Indian viewers, is not designed specifically for Indian audiences, is a standard international channel, and has been permitted to be telecast in the country of its uplinking by the regulatory authority of that country. These restrictions are applicable to all programmes and to delivery of content via all media including online and over mobile devices, irrespective of whether it is produced by an Indian or a foreign producer.
The MIB has stated that the present uplinking guidelines, and downlinking guidelines that came into effect from 5 December 2011 are now more than five years old and that keeping in view the change in technology, market scenarios, and the lesson learnt in the last few years of their operations, there is a need to review and amend some of the provisions of these guidelines to ensure healthy growth of the broadcasting sector. To lessen the gap, the MIB has sought recommendations from TRAI on issues primarily relating to permission for uplinking and downlinking of satellite TV channels, and setting up of teleports. As a result, TRAI issued a consultation paper on the same in December 2017.
Presently there is regulatory framework to guide placement of TV channels in distributers’ networks but there is no regulation stipulating criteria to place a channel on a landing page. Therefore, landing page Logical Channel Numbers (LCN) may be used for placing a television channel to show enhanced reach compared to other channels placed in other LCNs; therefore, the competing broadcaster may see it as a discriminatory practice. The television ratings in India are published under the ‘Policy Guidelines for Television Rating Agencies in India’ issued by the MIB on 16 January 2014, and the said guidelines were formulated based on recommendations of TRAI. The Broadcast Audience Research Council is a registered agency under these guidelines that provides Television Ratings in the country. TRAI recently issued a consultation paper dated April 2018 on issues related to the placing of a television channel on a landing page.Advertising
How is broadcast media advertising regulated? Is online advertising subject to the same regulation?
Cable and radio advertisements are regulated by the provisions of the Cable Advertisement Code and the Code for Commercial Advertising over All India Radio respectively. Online advertisements shall be subject to the IT Act, the terms of the ISP guidelines, the licence and other content regulation laws as mentioned earlier.
The Cable Advertisement Code has been framed and implemented under the Cable Network Rules. The Cable Advertisement Code stipulates that advertising must not offend morality, decency and religious sentiments. Additionally, the Cable Advertisement Code provides for a detailed list of restrictions on advertisements to be featured on cable networks. The Code for Commercial Advertising over All India Radio also lays down a similar prohibition on advertising and states that no advertisement shall be permitted that derides any race, caste, colour, creed or nationality; is against the law of the land; tends to incite people to crime, cause disorder, violence or breach of law; glorifies violence or obscenity; adversely affects friendly relations with foreign states; or relates to or promotes cigarettes and tobacco products, liquor, wines and other intoxicants.
The MIB had issued advice to the TV channels in India advising them not to telecast advertisements that violate the self-regulation code for advertising, which has been prescribed as a violation of the Cable Television Networks (Regulation) Act 1995 and the rules thereunder. This strengthens the self-regulatory mechanism of the advertising sector, which has been propelled by the Advertising Standards Council of India, a self-regulatory voluntary organisation of the industry.
Apart from the above broadcasting media-specific advertisement codes, there are certain other pieces of general legislation that lay down the requirements for advertising of specific products, such as the Drugs and Cosmetics Act 1940; the Pharmacy Act 1948; the Emblems and Names (Prevention of Improper Use) Act 1950; the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954; the Prize Competitions Act 1955; and the Copyrights Act 1957.Must-carry obligations
Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?
The must-carry obligations under the regulatory regime are contained in the Cable TV Networks Act, which stipulates the compulsory retransmission of channels operated by or on behalf of the parliament, in such manner as the government may provide from time to time. Additionally, the Cable TV Networks Act also requires the transmission and retransmission of at least two Doordarshan terrestrial channels and one regional language channel of the concerned state in the prime band, in satellite mode on frequencies other than those carrying the terrestrial frequencies. The DTH licence stipulates that the DTH licensee is to provide access to various content providers and channels on a non-discriminatory basis. The MIB has also been empowered to specify the names and numbers of channels of Prasar Bharti or any other channel that is required to be carried mandatorily as part of the internet protocol television (IPTV) services in India. As a clarification, the MIB clarified that all multi-system operators are obligated to carry the prescribed Doordarshan channels and also to ensure good quality reception, using the stipulated signals for the purpose.Regulation of new media content
Is new media content and its delivery regulated differently from traditional broadcast media? How?
New media content and its delivery are regulated by the same guidelines as applicable for delivery of content under traditional broadcast media.
The delivery of online content through IPTV is regulated by the MIB through the specific Guidelines for Provisioning of Internet Protocol Television (IPTV) Services. The cable operators providing the IPTV services are governed by the Cable Television Networks (Regulation) Act 1995 and any other laws as may be applicable. The Programme and Advertisements Code is also applicable in cases of IPTV service, thus the content is required to be in conformity with the same. The provisions of the IT Act may also come into play owing to the convergence of services with regard to the content being published over the internet. The IT Act provides for penal provisions in case of violations of the provisions of the Act on account of publishing of content prohibited by the Act.
The telecoms licensees providing TV channels through IPTV are required to transmit only such broadcast satellite television channels in exactly the same form and manner as are registered with or permitted by the MIB. However, in such cases, the responsibility to ensure that content is in accordance with the extant laws, rules and regulations shall be that of the broadcaster, and the telecoms licensee will not be held responsible for such violations. Carrying any broadcast satellite television channels that are prohibited either permanently or temporarily or not registered with the MIB is not permitted.
Additionally, media content through OTT platforms is still out of any regulatory scheme but it is under consultation and we may have guiding regulations soon.Digital switchover
When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?
India’s advancement in broadcasting technology is marked by the introduction and implementation of digital cable television. This proposes to deliver a new freedom to choose in terms of television channels and content. In 2011, the government mandated the digitalisation of TV signals, marking a shift from analogue to digital broadcasting and laid down the roadmap for implementation of digitisation in cable television section in four phases starting from June 2012. TRAI notified the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations, 2012 in April 2012. Digitisation in the cable sector was implemented in four phases and it was completed all over the country by 31 March 2017. This enjoined TRAI to work on a common interconnection framework. After due consultative process, TRAI’s Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 were released in March 2017. As per notification, the Interconnection Regulations, 2004 and Interconnection Regulations, 2012 were to be repealed. However, as these new regulations are sub-judice in various courts, presently the Interconnect Regulations, 2004 and Interconnection Regulation, 2012 remain in force.
TRAI also issued a consultation paper on Empanelment of Auditors for Digital Addressable Systems, which is a preparatory work before calling proposals for empanelment of auditors, and has no bearing on the above said regulations or ongoing litigations.
TRAI recently recommended that there is a definite need to facilitate digital radio broadcasting in India to effectively utilise spectrum in VHF-II band for radio broadcasting, to provide diverse content and other value-added services to radio listeners. TRAI further suggested that no date for digital switchover of radio broadcasting services should be declared at this stage. Existing analogue FM radio channels should be allowed to remain operational for the remaining period of their Phase-III permissions.Digital formats
Does regulation restrict how broadcasters can use their spectrum?
The spectrum use regime prescribes that broadcasters are permitted to use the allotted spectrum for the specific activity for which the spectrum has been granted. Using spectrum for any other purpose is restricted.Media plurality
Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?
Media pluralism in India is in its nascent development stages. To ensure media pluralism and counter the ills of monopolies, reasonable restrictions need be put in place on ownership in the media sector to strike a balance between ensuring a degree of plurality of media sources and content on the one hand and providing freedom to companies to expand, innovate and invest on the other.
TRAI has in August 2014 issued recommendations on issues relating to media ownership. In its recommendations on content aggregators, TRAI disallowed bundling of channels from more than one broadcaster, recommending curbs on cross-media and corporate ownership of TV channels and newspapers. TRAI made vertical integration a possibility by allowing broadcasters to own distribution platforms. The regulator defined control of ownership at 20 per cent shareholding, or over 50 per cent voting rights or half the members of the board of directors of the media company, or controlling management or affairs through decision making and appointment of key managerial personnel. Also, TRAI broadly prescribed the guidelines for identification of the genres or segments for cross-media ownership.
The need to regulate in this regard arises on three accounts:
- dissolution of political control and influence through surrogates over newspapers, TV channels and TV distributions, often employed to propagate political agendas;
- entities backed by political parties are either taking over the operations of other cable TV operators or driving them out of business using other means, thereby virtually extending their monopoly in the entire region; and
- similar influence can also be practised by corporate sector entities.
The inherent conflict of interests, which arises from uncontrolled ownership in the media sector, gives rise to sponsored news reports, biased analysis and forecasts in the political and corporate arena, and irresponsible, sensationalist reporting, among other things. These are even more lethal when control rests with entities having business and political interests.
Thus, the need to ensure pluralism is great and the concerned agencies and bodies are in the process of taking appropriate measures to achieve this and the evolution of a strong regulatory regime is not too far away.Key trends and expected changes
Provide a summary of key emerging trends and hot topics in media regulation in your country.
The media and broadcasting sector in India witnesses regular growth on account of technological advancement and the implementation of modern-day techniques for media content delivery.
Recently, TRAI gave recommendations on issues related to radio audience measurements and ratings in India. The recommendations include guidelines for industry-led bodies, a framework for regulating the radio rating system and guidelines for the radio rating agency. It has further recommended, in the past year on issues related to digital radio broadcasting in India to develop an ecosystem that can facilitate deployment of digital radio broadcasting. This deals with the policy framework of India, frequency bands, digital radio broadcasting, an approach for the implementation of digital broadcasting.
Further, recommendations on issues related to digital terrestrial broadcasting in India were made to the DoT by TRAI. This includes introduction of digital terrestrial television (DTT) services throughout the country in a time-bound manner, the eligibility conditions of private DTT operators, licensing conditions and other modalities for entry of private players, to create a supportive ecosystem, the Ministry of Information and Broadcasting along with the MEITY may devise a policy framework to make DTT complaint devices, etc, available.
TRAI has also made recommendations on Sharing of Infrastructure in the Television Broadcasting Distribution Sector, which recognise the need for facilitating sharing of infrastructure in TV broadcasting distribution network services in the cable TV segment, HITS platform, DTH services, sharing of CAS and SMS by distributors of TV channels and amendments in Network Operation and Control Centre and WPC guidelines for enabling infrastructure sharing. Major efforts are being made by the government to regulate the internet-based media services such as the draft amendment to the intermediary guidelines, 2018, OTT consultation etc.