OTT Services Are Not Subject To Licensing And Regulatory Norms

Public TV broadcaster Doordarshan has been a unique recipient of the free-rider benefits from private broadcasters for over a decade. Since the advent of cable and direct-to-home (DTH) broadcasting, private broadcasters were made to mandatorily include all free-to-air DD channels on their networks. From 2007, private TV channels that pay crores of rupees for broadcasting rights of signature sports tournaments were asked to compulsorily transmit those events on DD channels as well via an Act of Parliament. Now, Prasar Bharati, DD’s holding organization, has suggested that over the top, or OTT, channels should compulsorily carry all DD channels. Prasar Bharati’s logic, as explained in response to a consultation paper floated by the Telecom Regulatory Authority of India (TRAI), the broadcast regulator, is to bring OTT services on a par with TV broadcasting.

Part of Prasar Bharati’s argument is valid: TV broadcasters are subject to various licensing and regulatory norms, OTT services that live stream news and current events via the internet are not. Since the argument stretches to “responsibility, liability and accountability”, the argument that OTT services should be registered with the ministry of information and broadcasting has some validity. But to suggest parity with TV channels over mandatory transmission of DD channels on their networks is to stretch the already flawed logic.

The compulsory carriage provision for DTH and cable networks works primarily as a way for DD, which competes with them for advertising revenue, to piggyback on the private sector. By claiming a monopoly over events such as parliamentary proceedings (including the Budget), which it then offers to private channels, DD ensures it is able to leverage its position of an official broadcaster in a way that even the British Broadcasting Corporation (or BBC) cannot. The proliferation of OTT channels, which offer a bouquet of private TV channels, suggests that there is no great demand for DD channels. On the other hand, a compulsory carriage mandate would give DD access, for free, to a customer base that OTT operators have invested crores to build. There is little logic in this.

The fiasco over sports broadcasting offers some index of the infirmity of the argument. Under the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, private broadcasters were required to share live broadcasting signals of sporting events of national importance with Prasar Bharati. The idea was to offer poorer Indians, who could not afford the fees of cable and DTH, a chance to view sporting events. Over time, however, the definition of “sporting events of national importance” stretched from cricket to World Cup football and the later stages of Grand Slam tennis tournaments, among others. Also, with paid cable and satellite TV subscriptions accounting for close to 90 percent of all TV households, the argument for inclusive broadcasting has weakened.

A 2017 Supreme Court ruling restored some justice while maintaining Prasar Bharati’s equity principle. The apex court upheld a 2015 Delhi High Court order stipulating that the sports feeds could be re-broadcast only on DD’s terrestrial channel and its DTH network Free Dish, not on the DD channels carried by private cable and DTH operators. OTT channels, however, do not have access to such an escape route and will, therefore, deliver DD a free and growing customer base. TRAI would be unwise to accede to this asymmetry.―Business Standard

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