TRAI reaffirms earlier recommendations on DTH platform services

The Telecom Regulatory Authority of India (TRAI) has reiterated its earlier recommendations on platform services offered by DTH operators. This was in response to the back reference dated May 13, 2020 received from the Ministry of Information & Broadcasting (MIB) on the Authority’s recommendations dated November 13, 2019.

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TRAI recommendations on Platform Services offered by DTH operators

In its earlier recommendations, TRAI had stated that the total number of permitted platform services (PS) for a DTH operator shall be capped to 3 per cent of the total channel carrying capacity of the DTH operator platform and subject to a maximum of 15 platform services channels.

Giving its views on this, MIB had stated that IMC noted that while it is necessary to restrict capacity of platform services (PS) channels by DTH operators as recommended by TRAI, there is a wide variation at present among the DTH operators in their channel carrying capacity and PS channels being offered. Taking note of this, IMC recommended that the DTH operators may be permitted to operate to a maximum 5 per cent of its total channel carrying capacity as permitted PS channels without any limit on maximum number of PS channels which may vary as and when the channel carrying capacity of operator increases.

TRAI responded to MIB’s views by stating that the DTH operators being the distributors of the broadcasting value chain primarily have to carry the content produced by the broadcasters, and not to produce their own content. The domain and functioning of the DTH operators is different from that of the broadcasters.

TRAI further said that allowing more PS channels to DTH operators will block a large capacity for their own use, which can seriously jeopardise the availability of channel not only for new broadcasters but also for government mandatory channels.

Therefore, the Authority was of the view that as such there was no need to change recommended cap of 3 per cent of the total channel carrying capacity for the platform services. An upper limit of 15 channels is also important, so that even if the channel carrying capacity gets increased in future, it should be given to broadcasters to who is waiting for the channel capacity.

Meanwhile, in case the same programme is found available on the platform service of any other DPO, TRAI had recommended that MIB/TRAI may issue direction to immediately stop the transmission of such programme. MIB also reserves the right for cancellation of registration of such PS of the DTH operator.

MIB’s view was that this power was to rest with the Ministry itself.

To support its earlier recommendation, TRAI drew MIB’s attention to 3.2 (c) [para 2.16 (c)], which stated:

“DTH operator shall ensure and provide an undertaking to the Ministry in the format prescribed by the Ministry that the programme transmitted is exclusive to their platform and not shared directly or indirectly with any other DPO.”

TRAI also mentioned Section 11 (1) (b) (i) of the TRAI Act, which read as under:

“......ensure compliance of terms and conditions of licence.”

Thus, TRAI reiterated that “in order to ensure consistency between the TRAI Act and the DTH licence, it will be prudent to make explicit provision in the DTH licence/ guidelines to issue such directions by TRAI.”

Another of TRAI’s recommendations was that the DTH operator shall be bound by orders/ directions/ regulations issued by TRAI in respect of DTH services, including platform services provided by the operator.

MIB had stated that IMC had deliberated on powers of TRAI in respect of DTH operators as recommended and suggested that except in respect of powers being hitherto exercised by TRAI in respect of DPOs, the issues pertaining to DTH operators, etc., as per licence should be regulated by MIB. However, it may be desirable that DTH operators may also abide by orders/ directions/ regulations of TRAI issued by the Authority from time to time, relating to Interconnection agreement/ tariff/ quality of service and also keeping in view the fact similar provision already exists under Article 21.1 of the DTH guidelines.

TRAI responding by pointed out, “It is not correct to say that service providers will be bound by the orders/ directions/ regulations of TRAI issued by TRAI from time to time only on issues relating to Interconnection agreement/ tariff/ quality of service. Supreme Court in CIVIL APPEAL NO. 5253 of 2010 upheld that the power vested in the Authority under Section 36(1) of the TRAI Act to make regulations is wide and pervasive. The exercise of this power is only subject to the provisions of the Act and the Rules framed under Section 35 thereof. There is no other limitation on the exercise of power by the Authority under Section 36(1) of the TRAI Act.”

The Authority affirmed that therefore, MIB should not put any artificial restriction in the license condition. It added, “It is essential that DTH guiltiness should have one overarching clause clearly stating that DTH operator shall be bound by orders/ directions/regulations issued by TRAI in respect of DTH services.”