‘Airwaves Scam’ by DTH operators and the ‘Silent’ Government

The entry of Direct-to-Home (DTH) operators into the television arena has significantly changed the urban landscape. They attract customers with a variety of offers. But are they following the law of the land? While a PIL in the Delhi High Court comes for hearing later this month against the private DTH operators, here is a look at the issue in detail with the list of violations.

On 29^th of this month (July 2015), Delhi High Court slated its next hearing in a PIL against all private DTH operators and the Central Government.

What is DTH?

Direct-to-Home (DTH) technology enables direct beaming of broadcast signals to television sets of customers. Presently, there are seven DTH service providers in the country, six in private sector – Dish TV, Tata Sky, Airtel Digital, Reliance Digital, Videocon D2H & Sun Direct and one by Doordarsan – DD Free Dish. As per TRAI, by the end of 2014, India has around 73 million private DTH subscribers, out of which 40 million are active.

The important regulations that govern DTH services are:

1. Guidelines for obtaining license for providing Direct-to-Home (DTH) Broadcasting Service in India, 2007 (Notified and enforced by Ministry of Information & Broadcasting)
2. Direct to Home Broadcasting Services (Standards of Quality of Service and Redressal of Grievances) Regulations, 2007 (Notified and enforced by TRAI)

If one observes closely, there are several violations and exploitative practices by private DTH operators which amount to gross misuse of ‘air waves’, a public property. Despite acknowledging the serious breaches on record, the government is ‘silent’ without any action on DTH companies. Below is a list of such violations.

‘Default’ ad channels by DTH operators illegal

As per the very preamble of ‘Policy Guidelines for Downliking of Television Channels’ notified by the government, “…no person/entity shall downlink a channel, which has not been registered by the Ministry of Information and Broadcasting under these guidelines…” Further, clause 6.7 of terms and conditions under Guidelines for obtaining license for providing Direct-to-Home (DTH) Broadcasting Service in India, 2007 mandates: “No licensee shall carry or include in his DTH Service any television broadcast or channel which has not been registered by the Central Government…”.

From the above, it is crystal clear that the DTH operators are licensed only for carriage / distribution of channels duly registered with Central Government. Despite this, all private DTH operators are merrily broadcasting their ‘own’ channels with 24/7 ads, self-promotional messages and teleshopping spots. These ‘default/home’ channels which start as soon as one turns on TV/Set Top Box (STB), have no registration or whatsoever with the Government. Some DTH operators went a step ahead and programmed their STB’s in such a way that the remote control device is made defunct for first few seconds so that the customer is forced to watch the ‘default’ ad.

Extract from Dish TV brochure for prospective advertisers               

Screenshot from Tata Sky default channel 100                                               

Unauthorised ‘Value Added Services’ (VAS)

Apart from the basic licensed activity, i.e., carriage of registered TV channels, any other service, facility or communication through DTH platform constitutes ‘Value-added Service’. Examples include the interactive services like Movie on Demand (MOD), games, puzzles, facilities like Electronic Programme Guide (EPG) etc. To ensure that these interactive/on-demand services do not trespass into the domain of regular broadcasting, article 10.1 of terms and conditions under DTH Guidelines mandates for obtaining specific license for provision of ‘value-added services’. For an RTI query seeking details of any such specific licences granted till date to any of the DTH operators, the answer given by Ministry of I&B is ‘NIL’, thereby implying that all the value added services presently offered by DTH operators are unlicensed and hence illegal.

Illustrative screenshot from Tata Sky active service – ‘Smart Games’

Illustrative screenshot from Airtel Digital ‘Free Movies’ Channel                                         

Irritating ‘pop-up’ ads blocking screen – Violation of right to privacy

All DTH operators are inserting ads and other unsolicited self-promotional messages blocking the TV screen, e.g., unsolicited ‘pop-up’ ads through yellow mail box icons, continuous ‘​L-shaped’​ ads in movie-on-demand​ channels, inserting ads/images in Electronic Programme Guide, settings screen etc., display of DTH brand logo on corner of TV screen etc. This rampant practice is adversely affecting the viewing experience of millions of DTH customers who are already harassed with distracting ‘part-screen’ ads and scrolls in regular TV channels. This is not only a gross violation of Advertisement Code (Rule 7(10)), but tramples upon audience’ ‘right to privacy’. It is pertinent to observe here that TRAI, which framed elaborate provisions to regulate Unsolicited Commercial Communications (UCC) in telecommunications, has miserably failed in laying down similar regulations in case of cable and broadcasting sector.

Another key provision of Advertisement Code (Rule 7(11)) mandates that no TV channel can carry advertisements exceeding twelve minutes per hour. While carriage of their own channels itself is illegal, the DTH operators are airing continuous ads on 24/7 basis, thus making an open mockery of the said ‘12-minute’ rule.

Illustrative screenshot from ‘Airtel Digital’ service – Menu Screen

Extracts from Dish TV brochure for prospective advertisers                                             

TRAI’s fence-sitter approach

In 2009, based on a reference from Ministry of I&B, TRAI issued a consultation paper seeking views of stakeholders precisely on all the above issues relating to DTH. In response, the stakeholders including some broadcasters and DTH operators gave their comments. Some of the DTH operators as part of their comments acknowledged the present restrictions barring DTH operators from broadcasting their own ‘linear’ channels, FM Radio and interfering with broadcasters’ feed by inserting ads in EPG etc. However, these consultations proved inconclusive as TRAI, for some unknown reason, didn’t release any recommendations on the issues for next 5 years.

Last year, in June 2014, TRAI issued another ‘mega’ consultation paper titled, “Consultation paper on regulatory framework for platform services”. This time, it sought comments on

(i) registration of ‘local/ground-based’ channels run by cable operators and

(ii) legal implications in case of all Distribution Platform Operators (DPO’s), viz., DTH, HITS, IPTV etc., if they were to be allowed to transmit their own channels and services. Though TRAI acknowledged that ‘channels which are being operated by DTH operators need to be registered’ (Para 1.26), it chose not to acknowledge the ongoing illegality involved in DTH operators carrying their own channels. Broadcasters like Star TV and Indian Broadcasting Foundation (IBF) vehemently opposed TRAI’s proposal to allow DTH operators to carry their own channels which will do away with the traditional distinction between ‘content’ and ‘carriage’ saying that it would ‘irreparably harm content providers like broadcasters’. TRAI gave its recommendations in November 2014 putting forth several conditions and legal requirements before allowing DPO’s to transmit their own channels/services. It remains to be seen when the Ministry of I&B, known for its policy paralysis takes a final view on changing rules based on these recommendations.​

PIL in Delhi High Court

‘MediaWatch-India’​ the organization which the author of this article represents, filed specific complaints in 2014 with Ministry of I&B to issue show cause notices to all private DTH companies for above irregularities. Violation of terms and conditions under DTH guidelines attracts a penalty of upto Rs. 50 Crore (Art. 20). As Ministry failed to initiate any action, in December, 2014, a Public Interest Litigation was filed in Delhi High Court (WP(C) 9400/2014). During the latest hearing, some DTH operators raised a pointless objection that TRAI has recently released its recommendations on the subject. While the issue raised is about violation of ‘EXISTING’ ​rules, the DTH operators are citing TRAI’s recommendations to Govt. which are about making changes to the DTH policy in ​FUTURE. Next Hearing is on 29^th of this month.(July 2015).

Ministry of I&B acknowledges violations but ‘silent’

Copies of file notings recently obtained under RTI Act revealed that Ministry of Information and Broadcasting did conclude in unambiguous terms that the DTH companies are in clear breach of clauses 6.7 and 10.1 of DTH guidelines by broadcasting their own channels.

Here is what the top officials in the Ministry of I&B have noted:

“…DTH operators are not allowed to transmit any program or any channel on their own as they are merely carriage platforms for re-transmitting permitted channels. Thus, carrying of any channel/programme which is generated by DTH operator amounts to violation of 6.7 of the DTH license agreement. In doing so, DTH operators become broadcasters, thereby violating cross-holding restrictions enjoined in the DTH guidelines. …(KS Regimon, Director, BP&L DT. 18-7-2014)…

I agree. Kindly put up an advisory in two days. Please also simultaneously seek self-certified reports that they are not violating provisions in cl. 6.7 and 10.1. (Supriya Sahu, Joint secretary (Broadcasting) DT. 18-7-2014)

Curiously, after the above vital remarks in the file, the note sheet went ‘blank’ for reasons best known to the Ministry. For a query under RTI Act for subsequent file notings and whether the JS (Broadcasting)’s instruction to issue advisory was implemented, Director, BP&L section gave a reply: “no such information is available on the records…”!

‘Air Waves’ Scam

Supreme Court in the landmark ‘Air Waves’ case held that electro-magnetic waves are ‘public property’ and “No individual has a right to utilize them at his choice and pleasure and for purposes of his choice including profit. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute.”

Seen from this perspective, all the above illegalities by private DTH companies for last many years amount to what can be aptly called as ‘Air Waves Scam’. As there is no pressure from any quarter – the public, media or government, the DTH companies are merrily making a fast buck by openly flouting the law and exploiting millions of TV consumers. As the government brazenly chose to side with DTH lobby, judiciary is the only hope for now!