Matter outside TRAI’s jurisdiction: IBDF on proposal to bring broadcast services under Telecom act

New Delhi: The Indian Broadcasting and Digital Foundation (IBDF) has raised concerns about the   Consultation Paper on Framework for Service Authorisations for Broadcasting Services under the Telecommunications Act, 2023. 

As per IBDF, “TRAI’s attempt to enter the content domain through the proposed authorisation framework - an expansion of power that we believe is neither contemplated by the TRAI Act, 1997, nor permissible under the broader legislative framework governing broadcasting in India.”

Matter outside TRAI’s jurisdiction

According to IBDF, the TRAI Act of 1997, limits TRAI's powers to recommending the "need and timing for introduction of new service provider" and "terms and conditions of license." “The current consultation, however, aims to significantly change the broadcasting regulatory framework by placing it under a telecommunications licensing regime. IBDF contends that this exceeds TRAI's mandate,” said the apex body of television broadcasters.

Historical development of the regulatory framework

IBDF traced the historical evolution of India's broadcasting regulatory framework, noting that it has deliberately separated content and carriage regulation. 

The comments by TRAI mentioned that the Cable Television Networks (Regulation) Act of 1995, placed content services under the Ministry of Information & Broadcasting’s (MIB) purview. The TRAI Act Amendment of 2000, included broadcasting services but restricted TRAI's role to carriage-related aspects like interconnection and technical standards. 

Moreover, comments by IBDF brought out that the Policy Guidelines for Uplinking and Downlinking, 2005, reaffirmed that content services fall under MIB's scope. The establishment of the Broadcasting Content Complaints Council (BCCC) in 2011, a self-regulatory body under MIB's oversight, further cemented the content regulatory framework outside TRAI's domain.

In other words, IBDF's comments highlight the importance of maintaining the separation between content and carriage regulation. They warn that attempting to merge these areas under a telecommunications licensing regime could have substantial implications for the broadcasting industry.

Separation of Content and Carriage

Furthermore, the comments call out that the distinction between content and carriage regulation is not merely administrative but reflects fundamental constitutional principles. “Carriage regulation deals with technical and infrastructure aspects that may legitimately require licensing due to the use of public resources like spectrum. In contrast, content regulation involves restrictions on speech and expression that must meet the higher threshold of Article 19(2) and cannot be imposed through technical or licensing frameworks,” the body quoted.

IBDF believes that the proposed authorisation framework poses significant concerns for editorial independence and creative freedom in broadcasting.

Way Forward

Speaking of the way forward, IBDF said, “In light of these submissions, we respectfully urge the TRAI to limit its recommendations strictly to carriage-related aspects of broadcasting that fall within its statutory authority. Additionally, we request that all content-related matters be explicitly excluded from any proposed authorization framework. 

It is crucial to acknowledge that fundamental questions about the constitutional validity of content regulation must be resolved before creating additional regulatory frameworks. It is important to recognize that broadcasting services, unlike pure telecommunications services, engage fundamental rights that require special protection.”