It is quite surprising that the media and broadcast industry has always been subjected to ad hoc and ad interim legislations, which have lasted long to form the foundation and basis of its growth for the last over two and half decades. What surprises me more is the consistent approach of coming up with laws (as if to meet an emergency or exigency), which are intended to govern the broadcast and cable sector but are titled as “Guidelines”. Yes, I am referring to the recently announced “Uplinking And Downlinking Guidelines”. Would it not have been better if a clear statutory framework could be laid down by way of a proper enactment?
Let me highlight some of the concerns that have emanated from these Guidelines, and these include constitutional and fundamental rights concerns (curtailment thereof). The same should not have been casually done by way of an executive order/policy/guidelines, when there was enough time to come up with a proper law enacted by Parliament instead of taking the shortcut route of guidelines again.
The absence of a statutory backup makes it a subject of suspicion even on the very motives and intent, especially going by the nature of provisions that have now been introduced. In fact, it was a mega opportunity for the government to streamline everything and come up with a robust uplink and downlink law that could have lasted at least another decade or may be more.
While the government appears to be structured in its approach when it released the “Telecommunication Bill”, followed by the “Digital Personal Data Protection Bill”, in a sequence for consultation, and which is now to be followed by the “Digital India Act” consultation, some of the recent legislations, guidelines, rules, etc. seem to be getting done in a very random, ad hoc or even a haphazard manner. While the intent and objective of the government is laudable, it would be appropriate if these enactments are being done to ensure that their legitimacy does not get questioned and challenged, and it does not become an easy subject of challenge for its inherent incapacity to trace its legitimacy and constitutionality or for being per se arbitrary and illegal.
No Global Precedence
One of the most controversial provisions introduced by way of the 2022 Guidelines relates to the provision of “Public Service Broadcasting” (“PSB”) and the requirement upon private channels to modulate their content to ensure compliance, which as such had no global precedence. News broadcasters in the past, during emergency or even otherwise, have always played a vital role in amplifying announcements related to national interest. Similar was the approach of the government while introducing the grant of sweeping ‘fact check powers’ to PIB or such an agency for having a final say on fact checks or correctness of a news item.
As for the PSB, the government had initially stated the same to be “voluntary”. But in a recent advisory, for the purpose of PSB reporting, it has used the words “shall submit a monthly report on Broadcast Seva Portal”. Coupled with such an oxymoronic approach, it has also been given a prescribed format under Annexure-A and there is a further requirement of inclusion of a compliance certificate in the Annual Reports. What is exempted is only “sports and devotional/spiritual/yoga”.
Why “News” was left out is also not understood. Is it because they feel news is falling short to qualify in its programming to offer content that can be called “programs on themes of national importance and social relevance” or on subjects of “education & spread of literacy”, “agriculture & rural development”, “health and family welfare”, “science and technology”, “welfare of women”, etc? There is also a lack of guidance in the policy document that can lead to enforcement of such ideas, viewpoints or content, which a broadcaster may not necessarily agree, endorse or be aligned with.
In fact, exempting “News” would have come as a big positive move by the government and a counterblast to the allegations of media control/media restraint. However, seeking this nature of compliance may again be alleged to be in the nature of interference in the freedom of speech and expression or press. The “News” content going by its very nature surely cannot escape the type and nature of content that is intended to be covered under the PSB requirement, as the same is interwoven into it. While there are general popular maxims like “good deeds should be done with intention and not retention”, “noble deeds that are concealed are the most esteemed” or to say “a good deed dies when it is spoken about”, the PSB requirement expects that such content of national importance as defined should be measured and tracked on a monthly basis to be not only submitted to the government but also reported in the Annual Reports.
Uplinking, Downlinking Guidelines Missed An Opportunity
Coming now to the rationale of such a stipulation as it appears from the policy document is that airwaves being a public property. If that is the case, the question that also arises is that is there any thought or any expert opinion being sought or any consultative process having been conducted to check whether TV broadcasters avail any scarce kind of spectrum unlike telecom operators or is it even being administered by them in the first place. Interestingly, there is no specific frequency allocation done in the case of satellite TV channels. Further, it is available in abundance in comparison to the radio spectrum and continues to increase with the growth in the number of satellites. It is a matter of consultation and deep debate before assuming ownership on such spectrum and fastening liabilities and obligations upon the user broadcasters. Prima facie, it therefore appears to be an unreasonable restriction on freedom of speech & expression/press and is being introduced without an adequate deep dive into the subject or without exercise of intelligent care and deliberation and making a choice of path or course which reason dictates. It is also indirectly enforcing on “what to carry” mandates and further interferes with the enjoyment of rights and freedom by imposing excessive and arbitrary conditions which are not desired for public interest.
There is another perspective to this, which is the need to have PSB requirement for private broadcasters when there is already a public-funded Prasar Bharti having 6 billion viewership with a reach over 1.2 billion people, to carry out the very same function. There are also ample provisions existing in Cable TV Act and DPO License Permissions, which prescribe the mandatory and compulsory carriage of Prasar Bharti channels and thus all of them are any which ways reaching the people of the country. Will private news broadcasters be conferred with a similar provision of “mandatory carriage” since they are now mandated to carry out the PSB obligations? The private news channels are self-funded and despite having been conferred the status of “essential public service”, do not have any special concessions, tax holidays/tax breaks and no special privileges whatsoever. Till date they do not even qualify to be “infrastructure provider service” when the discussions are going to start about convergence in a recent TRAI consultation or to bring them under the definition of “telecommunication service” under the recent Telecom Bill. While the minister had clarified sometime in September 2022 that broadcasting services are not intended to be brought under the ambit of Telecommunication Bill. At the same time, a reference went to the TRAI in August 2022 wherein it was seeking recommendations on certain additional items like restructuring of legal licensing and regulatory frameworks for reaping benefits of convergence of carriage and broadcast services and telecommunication services. Further, there is a question relating to revising regulatory regime in respect of DTH and cable services holistically addressing all institutional, regulatory and legal aspects. So the decision of convergence of broadcast with telecom would now be after going through the TRAI recommendatory process.
It has also been a long standing prayer to the government of conferment of a statutory recognition to the self-regulatory mechanism of the NBDA and an opportunity for doing so has again been missed in these guidelines. This is despite the recognition and acknowledgement of these self-regulatory bodies like NBDA, BCCC, etc in judicial pronouncements. The reluctance and hesitation of the government is not understood, especially when the self-regulated body of ASCI is well recognised under the Cable TV Act Rules. The recognition of the NBDSA Guidelines and the self-regulatory guidelines of BCCC and a reference to the same along with the obligation to consult could have gone a long way in bringing more certainty and resolving ambiguities.
The ministry by way of these guidelines have also reserved an unfettered power to refuse grant of permission on renewal by giving any reasons in writing. While non-fulfilment of criteria could be a valid ground, however absence of any clear outline or clear parameters which could lead to rejection/refusal, gives an omnibus unbridled and untrammelled powers with the government to determine who should be allowed permission or who can be allowed with the extension. Further, five violations being a ground for rejecting renewal is another provision which is vicious and menacing, since this would even include any trivial content related violations as well, for which the broadcaster may even have already suffered consequences during the tenure of permission. Such provision will have a serious chilling effect on the freedom of speech and expression and in the form of an unreasonable restriction.
The Guidelines also encapsulate some enhanced and disproportionate penalties, which result in micro-management of the broadcast sector and can range from advisory, warning, apology scrolls, reading out an apology by CEO/Director, direction to be off air for specific number of hours/days, suspension and revocation of permission and so on. There are no checks and balances or any safeguards on what constitutes violation and therefore potentially qualifies as being arbitrary and excessive.
The Guidelines apart from not fulfilling the objectives of “maximum governance minimum government” also falls short of fulfilling the Ease of Doing Business criteria while stipulating provisions of mandatory clearance from MHA, appointment of new CEO/Director, renewal of existing permissions, etc. These are completely avoidable requirements and thus could be converted as a requirement of intimation and deemed approvals. Similarly, there could be simplification of many other provisions like dispensing of the requirement of having a trademark certificate, avoiding submission of Performance Bank Guarantees (PBG). Some clarifications should also be accorded to the definition of ‘regional channels’ to include ‘Hindi regional channels’ and avoiding “Advisories” being equated with “Directions”.
The government must work to help the industry work with ease and legitimise self-regulation, do away with the deterrents, and promote independence of media by eliminating any provision that dictates the type of content to be hosted or creates any atmosphere of fear for any stakeholder.
Disclaimer: The opinions, beliefs, and views expressed by the various authors and forum participants on this website are personal and do not reflect the opinions, beliefs, and views of ABP Network Pvt Ltd.