The Telecom Regulatory Authority of India (TRAI) has sparked a contentious debate in the broadcasting industry with its latest directive on pay TV channels. By requiring that channels available on DD Free Dish must also be provided for free on other distribution platforms, TRAI has initiated what could become a significant legal showdown.
exchange4media consulted legal experts to gain insights into the potential implications should broadcasters decide to pursue legal action.
“At the heart of this controversy lies a complex web of legal and regulatory issues. Broadcasters, understandably aggrieved by this directive, are gearing up for a legal challenge that could reshape the landscape of media regulation in India,” said Pratyush Miglani, Managing Partner, MVAC Advocates & Consultants, adding that TRAI’s directive could be challenged for infringing upon broadcasters’ fundamental rights.
Legal experts believe that the regulations of TRAI are legally binding on the stakeholders but broadcasters have a strong case against the authority and can secure an interim stay as an immediate remedy.
“The jurisdictional question looms large. Broadcasters have a strong case in arguing that TRAI lacks jurisdiction over DD Free Dish, which is operated by Prasar Bharati, an autonomous body under the Ministry of Information and Broadcasting. This argument is bolstered by the unique status of DD Free Dish as a public service broadcaster.
“From a procedural standpoint, broadcasters could challenge the directive if TRAI failed to follow due consultation processes or adequately consider stakeholder inputs before issuing the directive, this could form the basis of a procedural impropriety challenge,” Miglani said.
Advocate Aarushi Jain, Partner (Head - Media, Education & Gaming), Cyril Amarchand Mangaldas, expressed a similar view, and said broadcasters could secure an interim stay on the TRAI directive on pay channels.
“The amendments have come in after stakeholder consultations and deliberations. This, however, doesn’t mean they are invincible. The amendments are always open to challenge in court on due legal grounds.
“While setting aside the concern causing provisions by the court is an ideal relief, an interim stay may be the most effective and immediate remedy to eye for,” said Jain.
In its regulatory framework for cable and broadcasting services, TRAI noted that the continuation of carriage of pay channels by DD Free Dish is leading to a situation where broadcasters on one hand, are charging subscription free for their pay channels from licensed DPOs but are paying DD Free Dish for the carriage of the same channels.
Currently, 75 private television channels that are permitted by MIB, are available on the DD Free Dish platform. Out of these, 20 channels are declared as 'pay' channels by their respective broadcasters under the provisions of the Tariff Order 2017. However, these 20 channels are accessible to DD Free Dish consumers without any monthly subscription fees.
TRAI has said that the price of a pay channel should be uniform across all the distribution platforms in order to ensure the level playing field among DPOs and non-discrimination among customers.
“Accordingly, the Authority has decided that a channel, which is permitted by MIB and is available at no subscription fee on DD Free Dish platform, shall not be declared as pay channel for addressable distribution platforms,” it said.
As per Advocate Mohit Garg, Managing Partner, Lex Panacea, broadcasters may argue that the directive violates their rights as guaranteed under the Indian Constitution, the right to carry on trade and business (Article 19(1)(g)), if they can demonstrate that the directive imposes undue financial burden or infringes on their business model.
“They can also argue that the directive is arbitrary, unconstitutional, or exceeds TRAI's statutory authority under the Telecom Regulatory Authority of India Act, 1997. The decision of TRAI to provide pay tv channels, which are on DD Free Dish, for free to distribution platforms falls out of their scope of powers and function,” he said.
However, broadcasters may not be able to secure any relief if they move the court against the tariff forbearance and permission to distribution platforms to form their own bouquets as that is well within its jurisdiction, said the experts.
“Fixing the tariffs and promoting fair competition among the players by letting the market forces determine the prices, is well within the jurisdiction of TRAI. And does not amount to an Ultra Vires act,” Garg said.
Section 11(1)(a)(iv) of TRAI Act empowers TRAI to “facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth.”
“And by permitting the Distributors/Cable Operators to form their own channel bouquets TRAI aims to promote fair competition among the operators,” Garg added.
The Section 11(2) further empowers TRAI ‘Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the Authority may, from time to time, by order, notify in the Official Gazette the rates at which telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India.’
This empowers TRAI to fix tariffs for telecommunication and broadcasting services.
“The potential negative economic impact of this directive on the industry, and by extension on content quality and diversity, could be framed as contrary to public interest, which TRAI is mandated to protect.
“The legal route for broadcasters is clear. As established in the landmark judgment of BSNL v. Telecom Regulatory Authority of India (2014), they can move the Delhi High Court under writ jurisdiction,” said Miglani.
Experts stressed on the need for constructive discussions and viable solutions to adhere to the regulatory framework without causing harm to any stakeholders.
“A tiff helps no one, including the customers, so amicable discussions and workable solutions have to be put in place to effectively comply with the regulatory framework without disadvantage to any party involved,” said Jain.
