This article is written by Ruhi Kanakia, a student from ILS Law College, Pune, pursuing B.A.LLB. The article explains the provisions established under the Broadcasting Services Regulation Bill of 2007.
Table of Contents
Introduction
The existence and prevalence of law and jurisprudence surrounding Broadcasting Rights in India, is meagre and unaddressed for the most part, in our country. The predominant justification for such a state is the existence of a prevailing power, ‘Prasar Bharati’, which reduced the need to make any laws governing such rights and competition. However, in the new age of sports, western cinematography, and a larger and younger audience, multinational companies have begun purchasing broadcasting rights to broadcast certain events, due to the large commercial value that it attracts, which has led to an increased need for a legal structure to govern such activities in India. Further, the rapid digitalization and technological advent in the country, has led to the merger of the three frontal aspects of communication, namely broadcasting, telecommunications, and multimedia. This portrays the case that our country today needs a tangible and adept national regulatory framework for the promotion and production of works, along with the transmission and diffusion of the same into society. In pursuance of the same, the government drafted a bill providing a blanket law, governing broadcasting rights and services, called the Broadcasting Services Regulation Bill, 2007 [hereinafter referred to as the ‘Bill’].
Background of the Bill
Broadcasting in India is a service developed and managed by the Government of India. The onset of broadcasting in India was in 1921, as a collaboration between ‘The Times of India’ with the ‘Posts and Telegraph Department’, which started a broadcasting program in Bombay. The second milestone that the service reached was the initiation of the ‘All India Radio’, in 1948, which then soon acquired ancillary radio and broadcasting services including Vividh Bharati, and 117 other national and regional stations in the country. Then, in 1997, vide the Act of Parliament, 1997, ‘Prasar Bharati’ was established as an autonomous body, to become the largest public broadcasting service in the country. It acquired Vividh Bharati, as well as the All India Radio, and is directly handled by the Ministry of Information and Broadcasting [hereinafter referred to as ‘MIB’].
As mentioned hereinabove, the prevalence of one broadcasting giant, Prasar Bharati, left India with little need to accommodate any regulations surrounding broadcasting services and rights. The advent of technology and an increase in the number of players in the field created a gap between the services, and the laws governing them. The Supreme Court, to fill this gap, directed the government through various pronouncements, to establish an independent authority to free Prasad Bharati from government control, so as to protect the freedom of expression, as protected by the Indian constitution. In light of the 2006 verdict of the Supreme Court in Government of India v. Cricket Association of Bengal and Ors., the MIB finally introduced a draft bill on regulating the broadcasting rights and services in India.
Objective and Purpose of the Bill
The draft Bill consists of 61 [sixty-one] Sections over 6 [six] chapters, which delve into the parameters and regulations surrounding the operation of broadcasting services and rights provided to the citizens in our country. After the judgment proclaimed in Government of India v. Cricket Association of Bengal and Ors, acknowledged the public ownership of airwaves, the Act was made to regulate the use of such airwaves, to regulate the dissipation of content over the country. While the Government of India has surely introduced guidelines periodically to ensure control over broadcasting, the MIB felt it necessary to establish statutory enforcement to such guidelines, and legally govern such operations.
The bill is thus made ‘to provide for the regulation of broadcasting services in India for offering a wide variety of entertainment, news, views, and information in a fair, objective, and competitive manner and to provide for the regulation of content for public viewing and matters connected therewith or incidental thereto.’, and to ‘provide for the establishment of an independent authority to be known as the Broadcast Regulatory Authority of India for the purpose of regulating and facilitating the development of broadcasting services in India to encourage Broadcasting services to be responsive to the educational, developmental, social, cultural and other needs and aspirations of people and include in their programming public service messaging and content.’
Important Definitions
Section 2 of the Bill consists of the definitions with respect to the provisions in the Bill. Some of the more important definitions are as follows:
- Section 2(d) talks about the meaning of the word ‘broadcasting’, which means the ‘assembling and programming any form of communication content like signs, signals, writing, pictures, images and sounds, and either placing it in electronic form on electro-magnetic waves on specified frequencies and transmitting it through space or cables to make it continuously available on the carrier waves so as to be accessible to single or multiple users through receiving devices either directly or indirectly.’
- Section 2(e) defines ‘Broadcasting Services’, as the process of ‘assembling, programming and placing communication content in electronic form on the electromagnetic waves on specified frequencies and transmitting it continuously through a broadcasting network or networks so as to enable all or any of the multiple users to access it by connecting their receiver devices to their respective broadcasting networks, and includes all the content broadcasting services and the broadcasting network services.’
- Section 2(f) defines ‘Broadcasting Network Services’ to include, inter alia the following facets:
- Teleport/ Hub/ Earth Station
- Direct-to-Home (DTH) Broadcasting Network
- Multi-System Cable Television Network
- Local Cable Television Network
- Satellite Radio Broadcasting Network
- Such other Network Service as may be prescribed by the Central Government
- Section 2(q) defines ‘Content Code’ as the ‘broadcasting content certification and regulation rules as prescribed under section 4(3) of this Bill’.
- Section 2 (ba) defines a ‘license’ under the Bill as any license ‘issued for any of the broadcasting services by the relevant Licensing Authority prescribed by the Central Government under this Bill.’
The Bill consists of 66 [Sixty-six] definitions of different authorities and other technical aspects of broadcasting, more particularly described in Section 2 of the Bill.
Licensing and Permissions to Broadcast
Section 3 of the Bill makes the acquiring of a broadcasting license mandatory for any person providing any broadcasting service and/or program/channel, along with the registration of such program/channel in accordance with policy guidelines as mentioned in the Bill. The Section also makes clarifications and provisions for the following categories of persons in such an instance:
- Cable operators: Any cable operators already registered with the Cable Television Networks (Regulation) Act, 1995 are permitted to continue providing cable services in accordance with Section 4B of the said Act.
- Licenses and permissions issued by the Central Government: in this respect, such licenses and permissions as read with the provisions of the Indian Telegraph Act, 1885 are deemed as valid and in accordance with the provisions of the Bill.
- Central Government and other concerned authorities: This Section empowers the Central Government, and any other authority to make amendments, modifications, changes, or deletions from the license agreements and permissions, as entered into with the service providers. It also allows the Central Government to exempt Prasar Bharati and other Public Broadcasting Channels from the provisions of the Act.
Content Code Compliance
The registration of the service channel, radio or television, with the Authority is mandated in Section 4 of the Bill. The Authority has the power to refuse the registration of a particular channel, only after the registration applicant is given the opportunity to be heard if it believes that the content of such channels can threaten the security, integrity, peace, harmony, or public order of any part of the country, or its relations with other nations. The Section also mandates the service providers to conform with the content certification and regulation rules, also called the Content Code, before broadcasting any content. The violation of the Content Code is punishable and penalized only by the Authority, as empowered under Section 44 of the Bill.
Powers and Functions of the Central Government
The Central Government has an overriding influence on most matters prevailing in the Bill. In addition to the powers mentioned in Section 10 of the Bill, certain other responsibilities and functions of the Central Government are scattered amidst other sections in the Bill. Section 10 functions, along with the others understood from the Bill are stated hereunder:
- The Central Government suggests guidelines to regulate the procedures of granting and revocation of licenses, permissions, and registration of services;
- Prescribes the terms and conditions of the licenses, registrations, and permissions along with procedures to ensure their compliance;
- Prescribe a license and registration fee for the grant of the same;
- Prescribe guidelines for transitional agreements, in order to facilitate the digital addressable systems in broadcasting services throughout the country in a time-bound manner;
- Prescribe guidelines for evaluation and certification of broadcasting content;
- Prescribe policies for self-regulation of content by service providers;
- Prescribe guidelines and arrangements for grievance redressal forums against the violations of norms of broadcasting content code by the service providers;
- Facilitate competition by prescribing methods to increase efficiency in operations of broadcasting services;
- Lay down mandatory terms and conditions for sharing of broadcasting signals with Prasar Bharati for broadcasting sporting events of national importance;
- Prescribe percentage of revenue received by Prasar Bharati to be used for broadcasting other sporting events;
- Lay down eligibility requirements and restrictions on ownership of broadcasting services;
- Prescribe limits on Public Service Broadcasting Obligations;
- Designate certain officers of the Central Government, State Government or the Authority, as the Licensing Authorities.
The Central Government prescribes eligibility conditions and restrictions concerning the accumulation of interest as the national, state, and local level, as may be necessary from time to time to prevent monopolies across different segments of the media, thus ensuring plurality and diversity of news.
The Central Government has the power to make it mandatory for the broadcasting network service to transmit or retransmit content of any channel, via a digital addressable system, if it feels that doing so is necessary for the public interest.
The Central Government is empowered to decide the number and names of channels to be mandatorily carried by categories of Broadcasting Network Service Providers, as well as the manner of reception of such channels.
It has the power to specify the name of every Doordarshan channel as well as any other public service channel transmitted by cable operators, and the number of channels to be carried in the non-prime band, including the manner of the reception of such channels.
The Central Government has the power to direct a service provider to stop broadcasting its content in a particular manner, if the Government feels it necessary to do so in exceptional circumstances, and is expedient to do so in the public interest, public order, maintain international relations, etc.
The Central Government may pay the Authority and the Council, in each financial year. such sums of money as the Government considers necessary by way of grants-in-aid.
The Central Government has the authority to request for the furnishing of returns, statements and particulars of the financial situation by the Authority and the Council, in a manner as prescribed by the Government.
The Central Government can make directions and guidelines as it feels necessary for the interest of the sovereignty of the State, national security, and friendly relations with other nations, which the Authority has to comply with.
Section 57 of the Bill gives the Central Government to make rules regarding the provisions of the Bill, which should be in consonance with the object of the Bill.
Lastly, Section 60 empowers the Central Government to make provisions vide notifications in an Official Gazette, not inconsistent with the Bill, to remove any difficulties arising from this Bill.
Public Service Broadcasting Obligations
More particularly described in Section 2(za) in the Bill, the Public Service Broadcasting Obligations [‘Obligations’] are certain obligations that are to be discharged by a broadcasting service provider.
Such Obligations are prescribed and suggested by the Central Government periodically, in accordance with the following limits:
- The share of content produced in India should not be less than 15% [Fifteen Percent] of the total content of a channel broadcasted every week.
- The share of public service through advertisements should not be more than 10% [Ten Percent] of the total commercial time of the channel.
- The share of public service program content should not be more than 10% of the total program content of a channel broadcast every week.
The Central Government may provide a time frame to comply with any one or more of the obligations as mentioned above, and lay down policy guidelines to either exempt or to allow partial compliance with respect to an individual broadcaster or certain categories of broadcasters.
In an event the content-broadcasting service provider fails to comply with the public service obligation, they shall be liable to pay such amount to the Authority, as may be calculated by the Authority in the manner prescribed by the Central Government towards its Obligation.
The Public Service Broadcasting Council, as constituted under the Bill and mentioned more particularly hereinbelow, shall discharge the responsibility of ensuring compliance of public service broadcasting obligations by the broadcasters, and suggest the amount of penalty to be paid by a broadcaster for non-compliance of its Obligations. Further, the Public Service Broadcasting Council also lays down the regulations, from time to time, regarding the definition and understanding of public service/socially relevant programming or messaging and how its share is to be calculated.
Broadcast Regulatory Authority of India
Chapter 3 of the Bill introduces the Broadcast Regulatory Authority of India [‘Authority’]. Section 14 states that the Authority has perpetual succession, long with the power to hold property and to sue and be sued. The Authority consists of a 7 member team, led by the Chairperson, and 6 full-time members, of which 1/3rd are to be women. The head office of the Authority, according to the Section is in New Delhi, India. These members, under Section 53 of the Bill, are deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.
Appointment and Removal
Sections 15 and 18 dictate the processes of appointment and removal of the Authority members, respectively.
Appointment
The Central Government appoints the members of the Authority based on the recommendations of a quorum of 2, of a Committee, which shall be binding on such appointment, that consists of the following:
- Chairman of the Rajya Sabha,
- the Speaker of the Lok Sabha, and
- the Leader of the opposition in the Lok Sabha
In an event, the Committee does not make a decision within 30 [thirty] days of receiving the list of eligible applicants, or in 3 [three] sitings, whichever is earlier, the President takes over the matter.
Prerequisites: The 6 [six] full-time members are required to have 25 [twenty-five] years of experience in the fields of:
- Television, Radio, Cinema, Advertising, Audio-Visuals, Fine Arts, etc;
- Journalism, Mass Communication, Literature, Social Sciences, etc;
- Finance, Commerce, Audit, Accountancy, etc;
- Electronics, Telecommunication, Information Technology, etc;
- Consumer Affairs, Social Work/Service, Civil Society Organizations, etc;
- Law, Judiciary, etc; or
- Public Administration, Management, etc.
Further, the person so selected shall not:
- Have any financial or other interest, that may prejudicially affect their functions as a member of the Authority.
- Have either directly or indirectly, any commercial employment or interest in any broadcasting services provider, newspaper, advertising or program producing agency.
- Take up any commercial employment in the organizations that fall within the operational jurisdiction of the Authority, without permission from the Central Government.
Removal
Section 18 entails the process of removal and resignation of the Chairperson as well as the full-time members.
Removal/ suspension: The Central Government can remove any member who:
- Ceases to be a citizen of India;
- Is adjudged as an Insolvent;
- Is convicted of any offence;
- Is unfit to continue term due to bodily or mental infirmity;
- Engages in paid employment outside the office;
- Acquires financial and other interests that may cause prejudicial effects on their duties in the office; or
- Abuses the power of their office.
Resignation: The Chairperson and full-time members can resign from office by giving a notice of resignation to the Central Government.
Term
The Chairperson and the full-time members hold office for a term of 6 [six] years, or up until they attain the age of 65 [sixty-five] years, whichever is earlier. Such a term of the Authority is subject to the following provisions:
- 1/3rd of the full-time members retire at the end of every second year of the term.
- The Central Government can pass an order to reduce the term of some members while making sure that /3rd of the members holding office shall still retire after every second year of the term.
- The Chairperson and full-time members are not eligible for a re-term in the Authority
- A full-time member is eligible for being appointed as the Chairperson while being in a term at the Authority.
Powers and Functions of the Authority
The powers and functions of the Authority are predominantly mentioned in Section 23 of the Bill.
The main powers of the Authority are:
- Notify service providers of the terms and conditions of their licenses that may have changed in accordance with governmental guidelines;
- Recommend guidelines for the discharge of its duties or operation of broadcasting services, to the Central Government;
- Grant registration to radio and television channels;
- Establish standards of quality service to be provided by service providers;
- Conduct surveys periodically, of service providers, to check quality standards and protect the interest of the consumers;
- Ensure compliance of legal and administrative guidelines to be followed by service providers;
- Establish conditions for fair and equitable access to broadcasting services;
- Publish findings on issues of broadcasting related to the public interest, to facilitate public discourse and debate;
- Facilitate competition between service providers to promote efficiency in services;
- Advise the Central Government on means to ensure the development of broadcasting technology and other such related matters;
- Establish codes and practices with respect to guidelines and rules as laid down by the Central Government from time to time, and ensure compliance of such codes;
- Hear appeals against orders by the Licensing Authority;
- Adjudicate matters between two Licensing Authorities, or between a Licensing Authority and one or more service providers;
- Certify content as being appropriate with respect to the requirements of the certification board;
- Any other administrative or financial function as prescribed by the Central Government.
The Authority can also constitute a number of sub-committees or departments within itself, and set regulations for transactions and meetings for the Authority and such committees.
The Chairperson, according to Section 17, has the power of superintendence and control over the Authority and shall preside over the meetings and functions of the Authority, along with discharging such functions as may be prescribed.
Section 29 also gives the Authority the power, in addition to those unravelled in the preceding section of the Bill, the power to formulate rules and regulations in addition to those mentioned in the Bill, without going against any provision mentioned therein.
Section 55 of the Bill exempts the Authority from the payment of wealth tax, income tax, or any other tax in respect of their wealth, income, profit or gains derived.
Public Service Broadcasting Council
Chapter 4 of the Bill encapsulates the establishment and working of the Public Service Broadcasting Council [‘Council’]. The Council consists of a President, and 5 [five] other members.
Appointment/ Removal
The Appointment of the President and Members is laid down in Section 30, and the removal and resignation processes are laid down in Section 33.
Appointment
The President and 5 members are appointed by the Central Government, from among persons of respect and knowledge in the fields of media and civil society organizations. At least one of such members is a representative of Prasar Bharati, and at least 2 [two] members are women.
Removal
Removal: The Central Government can remove any member, or the President, form their office if such member:
- Ceases to be a citizen of India;
- Is adjudged as an Insolvent;
- Is convicted of any offence;
- Is unfit to continue term due to bodily or mental infirmity;
- Engages in paid employment outside the office;
- Acquires financial and other interests that may cause prejudicial effects on their duties in the office; or
- Abuses the power of their office.
Resignation: The President and members can resign from office by giving a notice of resignation to the Central Government.
Term
Section 30(3) states that the President is a full-time member of the Council, whereas the members are only part-time. Both the categories hold an office for 3 [three] years in the Council.
Powers and Functions
Section 31 of the Bill incorporates the major powers and functions of the Council. These include:
- Ensuring compliance of this Bill by the service providers, on the failure of which the Council can suggest the penalty to be given to such provider, to the Authority;
- Institute national awards for service broadcasting;
- Define the meaning of public services and socially relevant programs;
- Establish a production quality benchmark, and produce or organize the production of content that meets the benchmark;
- Create mechanisms to provide free air time for public service content created by NGOs and civil society workers;
- Promote and support training courses, workshops, seminars discussions, and research on Public Service Broadcasting for various individuals interested in the same.
The Council can also constitute a number of sub-committees or departments within itself, and set regulations for transactions and meetings for the Council and such committees.
Section 32 of the Bill empowers the President with the responsibility of general superintendence and control over the Council and to preside over the meetings and functions of the Council, along with discharging such functions as may be prescribed.
Section 39 also gives the Council the power, in addition to those unravelled in the preceding section of the Bill, the power to formulate rules and regulations in addition to those mentioned in the Bill, without going against any provision mentioned therein.
Penalties
|
Sr. No. |
Section No. |
Details of the WrongDoing |
Penalty Levied |
|
1 |
40 |
If anyone provides, distributes, or receives any broadcasting service which is not licensed in accordance with the Bill. |
First offence- fine of Rs.25 lakh, or imprisonment of 3 [three years], or both. Subsequent offences: Fine of Rs.25 lakh, or imprisonment of 5 [five years], or both. |
|
2 |
40 |
broadcasts a channel that is not registered under sub-section (1) of section 4. |
First offense- fine of Rs.25 lakh, or imprisonment of 3 [three years], or both Subsequent offenses: Fine of Rs.25 lakh, or imprisonment of 5 [five years], or both. |
|
3 |
40 |
abets or assists transmission or distribution of such service or content, as the case may be, in any manner. |
First offense- fine of Rs.25 lakh, or imprisonment of 3 [three years], or both. Subsequent offenses: Fine of Rs.25 lakh, or imprisonment of 5 [five years], or both. |
|
4 |
40 |
Whoever contravenes the orders given by the Central Government in times of war or external threat (section 5). |
First offense- fine of Rs.25 lakh, or imprisonment of 3 [three years], or both. Subsequent offenses: Fine of Rs.25 lakh, or imprisonment of 5 [five years], or both. |
|
5 |
40 |
Whoever contravenes the orders given by the Central Government in times of exceptional circumstances (section 6). |
First offense- fine of Rs.10 lakh, or imprisonment of 2 [two years], or both. Subsequent offenses: Fine of Rs.25 lakh, or imprisonment of 5 [five years], or both. |
Section 42(2) provides for the power to the Chief Metropolitan Magistrate and a Chief Judicial Magistrate of First Class to be the only authorities competent to try a case or hear an offense punishable under the Bill.
Sections 43 and 44 also give the Authority and the Licensing Authorities the power to decide penalties and punishments for certain acts, described more particularly within the Sections respectively.
Appeals and Transfer of Cases
Sections 45 to 49 entail the provisions regarding the appeal and the transfer of cases and matters arising out of the Bill.
Orders by the Licensing Authorities: A person aggrieved by an order passed by the Licensing Authority, can appeal against such order to the Authority, within a period of 30 [thirty] days from the date of the passing of such order.
Orders by the Authority: A person aggrieved by an order passed by the Authority, can appeal against the same to the following authorities within a period of 30 [thirty] days from the date of the passing of such order:
- the Film Certification Appellate Tribunal [‘FCAT’], with respect to cases of violations of the Content Code, and
- the Telecom Disputes Settlement and Appellate Tribunal [‘TDSAT’] in respect of cases of all other violations of the terms and conditions of the license.
Appeals before the Supreme Court: A person aggrieved by the order passed by the TDSAT or FCAT, not being an interlocutory order, shall lie before the Supreme Court, preferably within a period of 90 [ninety] days from the date of passing of the order.
Appeals before the Supreme Court: (1) Notwithstanding anything contained in the Code of Civil.
Transfer of cases to the Authority:All the proceedings pending before the Telecom Regulatory Authority of India (TRAI) and Ministry of Information and Broadcasting, Government of India are deemed to be pending before the Authority, on the date after the establishment of the Authority.
No Civil Court has the jurisdiction to entertain any suit or proceedings in respect of any matter which the Authority or the Licensing Authority has the power to hear, as the case may be.
Problems brought out in the Bill
The Bill, even though not passed by the Parliament, has already faced an upheaval in the broadcasting industry and within its players. Within its ambit, the Bill covers major areas of broadcasting, including content creation, cross-media ownership, subscriptions, and live sports feeds. The more prominent and glaring problems with the Bill are stated hereunder.
The Bill prohibits the public ownership and control of radio and/or TV Channels, excerpt those already run by Doordarshan, and this is replaced by the ownership by the private sector.
The Bill lays down that ‘no proprietor of a newspaper shall be a participant with more than 20% interest in a body corporate which is a holder of a license’. Similarly, it states that ‘no licensee can hold more than 20% interest in a body corporate which runs a newspaper’. The proprietor is defined as a person who can ‘control a body which is the proprietor of such a newspaper’. The definition of ‘control’ can also now give rise to legal loopholes and exceptions in cases of multiple owners\proprietors, including benami shareholders of newspapers.
The Central Government is empowered to form the Content Code and decide certification and compliance of the same, which may lead to a draconian State.
The accountability of the Authority and its committees is not clearly laid down in the Bill. The control the Authority has over electronic media, and private control of radio and TV, and the extensive powers it is invested with, makes this lack of accountability concerning.
The Government is curtailing cross media proliferation and imposing limits, by laying down obligations in advertising programs, for all providers and broadcasters to comply with, as well as prescribe a particular percentage of content broadcasted that has to be of Indian Origin.
Section 10 prescribes that the Centre has the power to order a percentage of revenue gained by Prasar Bharati for broadcasting of sports events.
Conclusion
The Broadcasting Services Regulation Bill, 2007, as seen from the detailed understanding and conception of the same, was introduced to fill the void of a prevailing legislation regulating the control and overview of the broadcasting system in India. Although controversial and criticized for the predominant Government control, the Bill gives an outline of a systematic and controlled broadcasting service regulation, which before its conception, was vague and monopolised.
References
- https://www.exchange4media.com/media-others-news/broadcast-bill-2007other-facets-of-a-controversial-bill-27088.html
- https://www.mib.gov.in/broadcasting/broadcasting-acts-rules
- https://sg.inflibnet.ac.in/bitstream/10603/185070/19/11_chapter%205.pdf
- https://www.prsindia.org/uploads/media/vikas_doc/docs/1241499927~~Broadcasting_Services_Regulation_Bill_2007.pdf
- https://lawandotherthings.com/2007/07/on-broadcasting-services-regulation/
- http://indiatogether.org/uploads/document/document_upload/2139/blawbackgrounder.pdf
- https://trai.gov.in/sites/default/files/Recom12nov08.pdf
- http://archive.indianexpress.com/news/what-is-the-broadcasting-bill–/219641/
- https://www.mondaq.com/article/4856/broadcasting-bill-in-india-introduction-in-parliament-delayed
- https://www.slideshare.net/annukutty/history-of-indian-broadcasting
- https://lawandotherthings.com/2007/07/on-broadcasting-services-regulation/
- http://www.ieo.org/broadcast.html
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