Another stab at broadcast regulation

BY I and B| IN Law and Policy | 18/08/2010
In November, 2009 a Task Force was constituted by the Ministry of Information and Broadcasting to evolve a consensus on the draft broadcasting bill. It has recommended both content and carriage regulation.
The Task Force’s draft recommendations have not been put in the public domain so far. We do so here on the HOOT.

For more than a decade India has been struggling to come up with broadcast regulation acceptable to the broadcasting sector, the government and to lawmakers and citizens. It has not succeeded in passing  two draft bills, or in achieving a consensus on who should regulate the broadcast sector.

 

In November, 2009 a Task Force was constituted under the chairmanship of Secretary, Ministry of Information and Broadcasting to hold wide ranging consultation with stakeholders and evolve a consensus on the draft bill. The Task Force also included 2 representatives each of broadcasting associations like Indian Broadcasting Foundation (IBF), News Broadcasters Association (NBA) and Broadcast Editors’ Association (BEA) along with ministry officials.

 

A background note was prepared culling out ten specific issues briefly indicating the diverse viewpoints on each issue and circulated to the invitees prior to consultations to elicit response from them. The Task Force held consultations with  other broadcasting associations, namely Cable Operators Federation of India (COFI), MSO Alliance, DTH Association, IPTV Forum, Association of Radio Operators of India (AROI)  as also with CII, ASSOCHAM and FICCI. It also held discussions with media experts, members of the civil society, Resident Welfare Associations, academia and consumer groups. Lastly, it elicited the views of statutory bodies like National  Commission for Women (NCW) and National Commission of Protection of Child Rights (NCPCR).

 

In addition, an industry roundtable was organized by CII on this issue which was attended by a cross section of broadcasting media.

 

The draft recommendations that the Task Force came up with have not been put in the public domain so far. We do so here on the Hoot in the belief that the three tier regulation suggested needs to be debated. The Annexures are not given.

 

 

The wide ranging consultations as undertaken by the Task Force have substantially clarified most of the major issues involved on the complex issue of establishing an industry authority as also the need for a comprehensive Broadcasting Bill.

 

There was a near consensus on the issue of an industry regulatory Authority which should be autonomous, independent and credible in its structure, mandate and functioning. These attributes are fundamental to the universal acceptance of such an Authority.  It was noted that the broadcasting sector is on a high growth trajectory with increasing areas like DTH, FM Radio, Community Radio, IPTV, HITS being opened up for private sector participation.  With rapidly evolving technologies for the production and delivery of broadcast content and emerging new business models, a Regulatory Authority will be required to ensure an orderly growth and a competitive market with clearly established dispute resolution and consumer grievance redressal mechanisms.  It was also observed that with the growing nature of localized content delivery services like FM Radio, Community Radio etc. which as of now are not allowed to broadcast news and current affairs for want of a regulatory mechanism, the only way the restrictions can be considered to be relaxed is to put in place a regulatory mechanism.  It was also felt that it is neither possible nor desirable for the Government to monitor and regulate the volume and diversity of content provided which is increasingly getting localized.   

 

There was a near unanimity that such an Authority should be mandated to handle all those issues of carriage that are being handled by TRAI.

 

While there were no divergences on the issue of this Authority to be mandated to handle carriage issues of the broadcasting sector, majority of stakeholders felt that the role of such an Authority in handling content issues should be of a limited nature, largely as an appellate body.

 

On the issue of content regulation, both NBA and BEA were strongly of the view that adequate space need to be created for allowing the self-regulatory mechanisms set up by them to blossom. NBA felt that their existing mechanism of self regulation and complaint redressal mechanism will get stabilized and mature over a period of time and will be adequately effective in addressing the concerns of the consumers. There were also, however, some stakeholders who felt that the concept of self regulation was illogical, as it would amount to a situation where a judge sits in judgment on its own creation. Such a system will be quite opposed to the system of regulation being followed in other sectors; e.g. Bankers and Insurance companies do not regulate themselves, they are regulated by independent bodies. They also felt that such a model is inconsistent with systems prevailing in other countries.      The preponderant opinion on content regulation was that a system of co-regulation is best suited to the Indian context, with the two initial tiers of content monitoring comprising of self ??"regulation, to be created by the Broadcasters themselves. It was felt that the first tier of content regulation and complaint redressal should be set up at the level of channels themselves. The next higher tier of such regulation should be at the level of industry bodies like IBF, NBA etc. All such issues which are not resolved at these two tiers alone should be referred to the Autonomous Authority which should essentially act as an Appellate body.

 

Task Force also deliberated on how the self regulatory mechanism incorporated in the three-tier system can be made more effective.  The main concerns were whether each sub-sector within the Broadcasting Sector will be able to put forth the second tier?  Even if it is set up, how will a body set up at the second tier be able to exert pressure on its Members to ensure compliance of the Code  and enforce sanctions and penalties in case of non-compliance unless such powers have legal backing?  How will the non-Members of that sub-sector be regulated?    

 

Task Force has come to this broad consensus that there is a need to set up an independent and autonomous regulator to be known as National Broadcasting Authority of India (NBAI), which should be both the carriage and content regulator for the broadcasting sector. While on the regulation of carriage issues, it will exercise powers of an independent authority, on the content regulation, it would only have an appellate jurisdiction which could be invoked only after the two tiers of self regulation structures are approached and exhausted. 

 

It was felt that the three-tier content regulation mechanism should get built into the Law itself.  While the obligations on the broadcasting service provider (BSP) to set up a complaint redressal mechanism at his level can be provided into the terms and conditions of the license/permission/registration with provision for penal action against the BSP in case of non-compliance.   The details of the consumer redressal mechanisms at the BSP level can be left to the Authority to spell out through regulations which may include the procedure to collect complaints and the time lines required for redressal and the process of filing appeals.  

 

The second tier at the industry association level will need a number of issues to be addressed.  Firstly, the Law will have to clearly spell out that the second tier will be allowed to be created by the recognized industry associations only.  For this to happen, a mechanism and an eligibility criteria for an association to be recognized and to be able to set up the second tier will need to be created.  The second requirement which also will have to be spelt out through Law is to enable the Authority to spell out the pre-requisites and the essentials to be satisfied for the authority/ombudsman/complaints committee by whatever name called at the second tier to fulfil the task assigned.   The Law can enable such a mechanism and criteria for recognition of the association as well as the redressal mechanism to be set up by them at the second tier to be spelt out through regulations laid by the Authority which in turn can spell out the details. 

 

The Law can also empower the second tier to issue interim orders, levy financial and other penalties like running an apology scroll etc., and where and how the financial penalties will be collected, deposited and utilized.  The terms and conditions of grant of license to the BSPs can suitably modified to make it incumbent on the part of the BSP to ensure compliance of such orders passed by the second tier.  The second tier can also be empowered to recommend to the authority in case a violation requires a channel to be taken off-air either temporarily or permanently.  Here again the Authority can be required to spell out through regulations as to the details of the consumer grievance redressal mechanism including the procedure for filing and time lines  for disposal.  It is expected that such a mechanism would strengthen the self-regulatory mechanism set up at the second tier in letter and spirit and will take care of all the apprehensions while enabling the media to self-regulate. 

 

The next question that arises is which Content Code should be followed for setting out the parameters for provisioning of the content and determining whether  a violation has taken place or not.  It is understandable that there cannot be different codes for the self-regulatory mechanism and the appellate mechanism. Since different associations belonging to different sub-sectors within the Broadcasting Sector are proposed to be allowed to create a self-regulatory mechanism there should be a uniformity of approach with regard to the Content Code followed.  The content on the television side can be broadly categorized into three different segments namely, Advertisements, General Entertainment Content and News and Current Affairs content.  As of now, different versions are available in the form of programme and advertisement codes spelt out in the Cable Rules, in the form of draft Self Regulation Guidelines 2008 proposed by a Secretary level committee, the NBA Code of Ethics and Standards, the IBF Code etc.  The other content pertains to Radio broadcasts where again it can be categorized into three different segments.     It is, therefore, incumbent that the Law should enable such Codes to be stipulated through regulations laid down by the Authority.  The Authority while formulating such codes will reconcile the essential elements in the content codes spelt out by different industry bodies as of now while formulating its draft.  Since the Content Codes cannot be frozen in time and should be dynamically evolving with changing social and economic ethos, the Law should require the Authority to periodically look at the Content Code and also incorporate inputs received from the self-regulatory bodies from the experience gained by such bodies while redressing consumer grievances or for other reasons.  The Authority can also be required to incorporate any suggestions given by the Government while formulating such Codes.  To incorporate greater participation from the Industry while formulating such Codes the Law can enable the Authority to co-opt representatives from the second tier in draft committees, if any, for the Content Code. 

 

It was also felt that the content aired on Prasar Bharati network through its constituents DD/AIR should also be brought within the purview of the Content Regulatory mechanism being set up under this Law.  However, in the case of Prasar Bharati it can be only a two tier mechanism, one to be set up at the level of Prasar Bharati and the second can be an Appellate mechanism at the level of the Authority.  Prasar Bharati will also be required to follow the same Content Codes as spelt out in the Law subject to its mandate given under the Prasar Bharati Act.  

         

It was also felt that since the three tier mechanism will take time to redress a grievance relating to content, a mechanism needs to be created for dealing with emergent situations as mentioned in Section 19 and Section 20 of the Cable Act wherein the Authorised Officers or the Central Government has been given certain powers to intervene.  However, the scope of intervention need to be curtailed and clearly defined.  The present provision under Section 19 enables the Authorised Officer to prohibit transmission of any programme or channel on a cable service if it is not in conformity with any of the provisions of the Programme and Advertisement Codes or if it is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feeling of enmity, hatred or ill-will between different religions, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility.  It was felt that while the general violations of the Programme and Advertisement Codes can be left to be dealt with by the three tier regulatory mechanism, the Authorised Officers will have to be empowered to deal with emergent situations mentioned in Section 19.  However, the powers of the Authorised Officers with regard to blockage of content can be limited to a period within which he will have to seek ratification of his orders from the Authority.    The Central Government should also continue to retain certain powers to intervene in the interest of the sovereignty or integrity of India, or security of India or friendly relations with India with any foreign state or in the interest of maintenance of public order.  It was also felt that the present powers of the Central Government under Section 20 of the Cable Act to intervene in the interest of decency or morality can be left to the three tier regulatory mechanism. 

 

The appointment of such an authority should take place through a transparent and credible process so that the industry and the society does not nurse any doubts about the independence and autonomy of such an authority.

 

The Task Force studied the method of appointment as prevalent for other regulators in the country including TRAI as also the method of appointment of Prasar Bharati Board. The Task Force also studied the method of appointment of such a regulator in some major democracies of the world. It may be seen from the Annexure that the Regulatory Authorities in the major democracies and most other parts of the World have been set up by Acts of Parliament and are discharging their functions well. The notable examples are Federal Communications Commission  of USA set up under the Communications Act of 1934, Office of Communications (OFCOM) of UK set up under the Office of Communications Act 2002, Australian Communications & Media Authority (ACMA) of Australia set up under the Australian Communications and Media Authority Act 2005, Canadian Radio-TV and Telecommunications  Commission (CRTC) set up under the Canadian Radio-TV and Telecommunications  Commission Act, Independent communications Authority of South Africa set up under Independent communications Authority of South Africa Act,2000.

 

The Authority should be created through an Act of Parliament. This Act should, among other things, prescribe the composition of the Authority, the eligibility for the Chairperson and other members and their number, the method of appointment, the tenure and the powers and jurisdiction of such an Authority as also the procedure for removal of the Chairperson and the members.

 

Keeping all the factors in mind and after intensive and detailed deliberations, the Task Force felt that the mechanism to set up the Authority given in the Draft Bill 2007 can be followed subject to the following changes :-

 

a.     The Committee to appoint the Chairperson and the Members can be the Chairman of the Council of States, the Speaker of the House of the People and a Supreme Court Judge to be nominated by the Chief Justice of India. 

 

b.     Other alternatives could be the Chairman of the Council of States, a Supreme Court Judge to be nominated by the Chief Justice of India and a third Member  which can be either a nominee of the President, or Chairman Press Council of India. 

 

c.      The Chairperson and the whole-time Members can be taken from the seven categories mentioned in the Draft Bill.  However, the requirement of experience of at least twenty five years may not enable enough eligible candidates for consideration.  Accordingly it was felt that the requirement of experience should be reduced to fifteen years from the present proposal of twenty five years.

 

d.     To enable greater participation of the media it was felt that the Law should also enable the recognized industry associations to nominate persons for consideration by the Appointment Committee.  The Law should also require that at least one Member out of the six should be selected from the names suggested by the industry associations subject to fulfillment of the eligibility criteria. 

 

e.     It was felt that with the rapidly changing broadcasting sector the tenure of the Members and the Chairperson of the Authority should be such as to enable induction of fresh talent into the Authority.  It was felt that the tenure of six years is too long and a tenure of three years would be sufficient enough to lure talent and provide stability simultaneously catering to the need of the sector for induction of fresh talent.

 

f.       The present draft does not allow a Chairperson or a Member to be re-nominated.  It was felt that now that the tenure is proposed to be reduced to three years the provision can be modified to enable a second term for a Member either as a Member or as a Chairperson.  However, a Chairperson cannot be allowed a second term.  

 

g.     While reducing the tenure to three years it was also felt that to further strengthen the independent functioning of the Authority some of the grounds on which a Chairperson or Member can be removed can be subject to an enquiry held by the Supreme Court on a reference from the President of India.  These grounds can be as follows :-

 

i)                   If a Member or Chairperson acquires financial or other interest as is likely to affect prejudicially his functions as a Chairperson or Member,

ii)                  Abuses his position so as to render his continuance in office prejudicial to public interest.

 

 

On the issue of how the Authority should be funded, the models of other Regulators in India and abroad were considered and it was felt that funding per se should not affect the independent functioning of the Authority provided the Authority is sufficiently empowered to ensure its independent functioning.  Therefore, it was agreed that the Authority can be funded by the Government as proposed in the Draft Bill.

 

 

The issue of whether the Authority should have regional offices as proposed in the Draft Bill or not, was also deliberated.  It was felt that with growing number of cable operators and other localized distribution services certain functions relating to licensing, dispute resolution amongst service providers and consumer grievance redressal especially of individual consumers will require a localized presence.  However, such regional offices should not be assigned any role as far as content regulation is concerned which should be left to the three tier mechanism proposed above. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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