Challenges for regulators to navigate a dynamic and fast-paced M&E ecosystem

Regulators all over the world struggle to balance industry growth, consumer welfare, and other intersectional concerns such as privacy, security and quality of service. These complexities are compounded by the unceasing march of technology, unpredictable commercialisation models, and new competitive landscapes. Day 2 of FICCI frames 2023 saw an interesting panel discussion on ‘Trial by Fire: Challenges for Regulators to Navigate’. Moderated by Vivan Sharan, Partner, Koan Advisory, the panel comprised of:

Anil Bhardwaj, Director General, TCSR & Advisor (Broadcasting), TRAI

Rahul Vatts, Chief Regulatory Officer, Airtel

Mihir Rale, Chief Regional Counsel, Disney Star India

“There is a need to create an abstract outside of the executive and the legislature, concept of a regulator that is able to work with industry, consumers, etc., on a dynamic basis, because these are fast moving fields with high stakes,” noted Vivan Sharan, Partner, Koan Advisory, while commencing the discussions.

TRAI is one of the early regulators and has been present for 25 years now. On how the experiences from the past can shape the future and to what extent they can help one navigate the minefield that technology and innovation is for regulators in keeping with their mandated objectives, Anil Bhardwaj, Director General, TCSR & Advisor (Broadcasting), TRAI, said, “We are regulating two of the technology intensive sectors – broadcasting and telecom. Such is the change of pace of technology that after every three years we have a new generation of telecom coming in; and therefore, every three years the rules of the game, rules of content, and how content is getting delivered are getting redefined due to the technology. Focusing on the media and entertainment sector, specifically broadcasting, radio and television distribution, if you look at the journey TRAI has traversed, we didn’t start at a very positive footing because the concept of a broadcasting regulatory authority was there and somewhere as a stopgap there was a notification which obviously enabled TRAI in January 2004 and the sector was reeling under a different kind of pressure tactics being laid off by the editors.”

Bhardwaj further said, “If you look at the very first decision, it was to stall and create a status quo that no more price changes or any other changes happened till we understood what was happening in the market. That was the first intervention of TRAI that nobody will be able to change the prices. So, from there to being an enabler of the sector in 2011, where we recommended to the government, and the government amended the Act, we have travelled a long way. Now, we theoretically at least have regulations that consumer is the king, consumers will decide which channel to watch and which channel not to watch. The very purpose of a regulator is to create a level playing field and be as technology agnostic as feasible; so, both are the core principles at which we have been working.”

Continuing further, Bhardwaj said, “We have time and again stated that it is a genuine progress. We react sometimes to the market and sometimes we forecast that this is likely to happen. This is how we are shaping the regulations and rules of the game. We do sell recommendations to the government in anticipation of certain technological or certain challenges which are coming with the core principle, which is creating a level playing field and enablement of consumers.”

TRAI has been in the midst of a lot of disputes between market participants and regulators. About the ways in which market participants as well as regulators can work together to foresight better and disputes, Rahul Vatts, Chief Regulatory Officer, Airtel, said, “Most of our regulators are still relatively young, so most of our regulatory principles have been quite recent. I think what is very defining in all these forward-looking regulations and setting up the regulator was that there are stakeholders whose interests need to be taken care of. The biggest stakeholder is the customer. So, that’s the starting point for most of the regulators – how do you protect the consumer? How do you ensure that his journey has been the best? One of the principles, which most of the regulators follow, relates to transparency – that whatever the regulator is trying to postulate, or whatever the regulatory is trying to do, there is a rationale behind it and that reason is transparently shared with everybody.”

He further added, “I get to see what others are saying and others get to see what I’m saying. So, it’s not hidden from anybody as to what our views are, and then we can openly discuss about it and come up with a regulation. Every regulation has an explanatory memorandum to define how it was done and what was the reason behind it. Some regulators have also used another principle, which is that before making any sweeping changes they sometimes produce a draft regulation. The third important stakeholders in this entire journey are the investors. We have chosen to go and invest in a market and today there are substantial investments that people are making – either in regulated or unregulated ways. It is also incumbent upon the regulator to ensure that investments which are being made, are protected.”

Commenting on the spectrum allocation and auctioning, Mihir Rale, Chief Regional Counsel, Disney Star India, said, “There’s no doubt that spectrum is an actual thesis. It should be utilised in the interest of the public. The question comes whether that interest lies only in the monetisation of it, or it actually lies in certain segments, like, let’s say, broadcasts or content provisioning services – does it actually lie in ensuring plurality of voices? Within a constitutional framework, it has to lie in terms of ensuring that, because if you are talking about spectrum auctioning by actually creating almost exclusive pathways and if you are creating that kind of atmosphere, you are actually creating scarcity where there isn’t any. So, to that extent, I would say satellite spectrum also should be looked at from that standpoint.”