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Tag: Aman Ahluwalia

  • TDSAT-Ad cap: Amicus curiae No 2 takes over

    TDSAT-Ad cap: Amicus curiae No 2 takes over

    MUMBAI: The TRAI ad cap hearing has entered its final stages at the TDSAT even as the second amicus curiae Aman Ahluwalia came up spoke forth, following the completion of first amicus curiae Madhavi Divan’s arguments.

    Divan had opined that the Telecom Regulatory Authority of India (TRAI) has authority because duration of TV commercials is not content and quality of service is not a technical point. So the TRAI had the right to mandate any ad regulation under section 11 of the TRAI Act.

    Ahluwalia put forth the point that there wasn’t a necessity to get into the larger aspects as to whether TRAI has the right to deal with content or not because duration is not content. A decision can be made as to whether duration can be taken as content and if it is not then TRAI has the powers under section 11 of the TRAI act to deal with quality of services.

    Articles 19 and 14 of the Constitution will not come into the picture if it is held that duration is not content.

    He also said that he had personally done an average of ad timings on English channels for a week in September, after the 12 minute ad cap regulation came into effect. His finding was that broadcasters were doing an average of 17 to 19 minutes of TV commercials and it was not as grave as TRAI was making it out to be.

    The TDSAT bench questioned Ahluwalia that if there already was a provision in the Cable TV Networks (CTN) Act then what was the need to consider enforcement of regulating advertising under the TRAI Act. The bench added that it was difficult to understand that the regulation is the same as section 7 (11) of the CTN Act because they don’t have the same wording. To this Ahluwalia said that if they have powers under two laws but they have just used one then the two should be harmoniously constructed.

    Ahluwalia will continue on the commercial aspects of the the enforcement of the ad cap case tomorrow after which broadcasters will get a chance to submit their rejoinders.

  • TDSAT ad cap: All arguments done

    TDSAT ad cap: All arguments done

    MUMBAI: It has been a long three weeks of hearings at Telecom Disputes Settlement Appellate Tribunal in the ad cap case between the News Broadcasters Association and other channels versus the Telecom Regulatory Authority of India (TRAI). Several arguments went back and forth between all the parties and, finally, it has come to an end.

     

    The last day saw the music channels, Polimer Media and TRAI give their rejoinders. Polimer Media’s rejoinder was that Article 19 1 a of the Constitution does not apply in this case since it is not a writ petition. It also said that pay channels and FTA channels cannot be treated the same.

     

    The music channels’ counsel Ramji Srinivasan argued that TRAI cannot use both section 36 and section 11 of the TRAI act for the regulation and now do a flip and call it a direction. If TRAI did want to frame the regulation, it should have done so under section 36 and not used multiple sections from multiple acts.

     

    However the music channels’ counsel said that they do have a license from the TRAI but if the regulator wants to use it then it needs to to apply section 7 (11) of the Cable TV Networks act strictly without additions or subtractions.

     

    He also presented data showing the effect the ad cap will have on their revenues. He said that channels in this genre will need to resort to a 30 per cent hike in ad rates if the cap does come into effect.

     

    Srinivasan said that amicus curiae Aman Ahluwalia had said that news channels will be severely affected by ad cap since their viewership is low; similarly the music channels are also in danger since they are are also niche with a limited viewership. And hence the ad regulation should not be applied to anyone at all.

     

    Finally the TRAI gave its rejoinder clarifying that it has framed a regulation under section 36 of the TRAI act and if the TDSAT feels it is a direction then it is not impeded in saying so. However the regulator maintained that it is not a direction, it is a regulation.

     

    The TDSAT is supposed to announce its judgement on the case.

  • TDSAT-Ad cap: 2nd amicus curiae done, channels turn now

    TDSAT-Ad cap: 2nd amicus curiae done, channels turn now

    MUMBAI: The second amicus curiae Aman Ahluwalia continued his arguments today in the TDSAT-ad cap hearing. After giving the legal perspective yesterday, today he focused on the commercial implications of the ad cap regulation.

    Ahluwalia said that the Telecom Regulatory Authority of India (TRAI) has the power to implement licensing under section 11 (1) (a) of the TRAI Act as well as enforcing it on broadcasters through section 7 (11) of the Cable TV Networks (CTN) Act. There is no need for it to choose the CTN act. The TRAI’s procedure may have been faulty but the bench should not strike down the ad cap regulation on account of this.

    The bench wondered that when a licence is issued, the terms and conditions need to be read properly, and if the ad cap regulation issued by TRAI adds anything to section 7 (11) of the CTN act, then should it be accepted. The agreement between the licensor and licensee is only for section 7 (11) and if points like clock hour and reporting to TRAI come into the picture, it is in excess of the section.

    The bench said that one cannot change, modulate or supplement the terms of the licence. If TRAI had implemented it under sections 11 and 12 of the TRAI Act that address the issue of licensing and advertisements then such problems wouldn’t have come up.

    The amicus curiae read out the final draft report of the convergence bill which gives the definition of ‘broadcasting services,’ as it doesn’t have an exact one. He said that content, distribution and technical components all come under the TRAI act and content and distribution together mean carriage. By reading out reports such as the Nariman report, he chose to interpret broadcasting services to include content.

    Ahluwalia then proceeded to the commercial aspects. He told the bench that after reading the code in the UK, he saw that the ad cap may work for GECs while the news channels that have less viewership will be most affected by it. The only way revenue can be raised is either by digitisation when subscription revenue will go up, or by raising advertising rates. However, if subscription rates are jacked up, viewers may not pay, and resort to cord cutting, resulting in lower viewership, and comitantly lower ad revenues as they depend entirely on viewership.

    To support his statement, he also produced financial reports of Zee TV and the Sun Network which showed that their ad revenues were high as compared to news channels. Sponsored shows could be a way out for news channels to generated additional revenues but this could turn out to be dangerous as news could become coloured. And thus he suggested that genres should be dealt with differently.

    According to him, English news channels will be the most affected because advertisers will start turning the screws on them as viewership will quite likely drop off the cliff. The scenario could improve when DAS is implemented completely all over the country as by then subscription and ad revenues each will contribute equally to a company’s top line.

    Reading from an Ofcom (independent regulator and competition authority for the UK communications industries) report, he emphasized that TRAI’s ad cap regulation needs to be more precise in terms of the number of ads per half an hour, duration of the promos etc. Till DAS isn’t complete, it should not be implemented as, under Article 19 of the Constitution, broadcasters have the right to disseminate information and viewers have the right to receive plurality of information giving them the power to choose.

    If the regulation comes into effect now, many smaller news channels may shut down and the existing ones will generate less revenue and hence news could end up being coloured as only a limited number will be left to provide news.

    After Ahluwalia concluded, the News Broadcasters Association (NBA) counsel presented the rejoinder. He argued that TRAI’s analysis of the ad cap violations was incorrect.

    His second argument was that TRAI has the power to implement the terms and conditions between the licencee and licensor under section 4 A of the Telegraph Act that talks about teleport licences. It cannot implement it on the basis of the uplinking and downlinking policies.

    Teleport licences do not mention the CTN act at all and when TRAI is enforcing it on the basis of licensing then its line of reasoning needs to be read in the context of teleport licensing.

    The NBA counsel stated that TRAI cannot act against broadcasters under the uplinking/downlinking policy since it falls under the ambit of the Ministry of Information and Broadcasting.

    During its arguments, TRAI mentioned that broadcasters had suppressed documents related to licensing. The NBA counsel clarified that the data was about OB vans and teleports, which was available in the public domain.

    He added that, according to Ofcom, UK channels were allowed ad commercials of 9-12 minutes averaging and not per clock hour. Also, if TRAI were to enforce the ad cap, it should be under the teleport licence under section 4 A of the Telegraph Act.

    The NBA will continue its rejoinder tomorrow as well.

  • TDSAT-Ad cap: Amicus curiae No 2 takes over

    TDSAT-Ad cap: Amicus curiae No 2 takes over

    MUMBAI: The TRAI ad cap hearing has entered its final stages at the TDSAT even as the second amicus curiae Aman Ahluwalia came up spoke forth, following the completion of first amicus curiae Madhavi Divan’s arguments.

    Divan had opined that the Telecom Regulatory Authority of India (TRAI) has authority because duration of TV commercials is not content and quality of service is not a technical point. So the TRAI had the right to mandate any ad regulation under section 11 of the TRAI Act.

    Ahluwalia put forth the point that there wasn’t a necessity to get into the larger aspects as to whether TRAI has the right to deal with content or not because duration is not content. A decision can be made as to whether duration can be taken as content and if it is not then TRAI has the powers under section 11 of the TRAI act to deal with quality of services.

    Articles 19 and 14 of the Constitution will not come into the picture if it is held that duration is not content.

    He also said that he had personally done an average of ad timings on English channels for a week in September, after the 12 minute ad cap regulation came into effect. His finding was that broadcasters were doing an average of 17 to 19 minutes of TV commercials and it was not as grave as TRAI was making it out to be.

    The TDSAT bench questioned Ahluwalia that if there already was a provision in the Cable TV Networks (CTN) Act then what was the need to consider enforcement of regulating advertising under the TRAI Act. The bench added that it was difficult to understand that the regulation is the same as section 7 (11) of the CTN Act because they don’t have the same wording. To this Ahluwalia said that if they have powers under two laws but they have just used one then the two should be harmoniously constructed.

    Ahluwalia will continue on the commercial aspects of the the enforcement of the ad cap case tomorrow after which broadcasters will get a chance to submit their rejoinders.

  • TDSAT-Ad cap: TRAI done; amicus curiae takes over

    TDSAT-Ad cap: TRAI done; amicus curiae takes over

    MUMBAI: The Telecom Regulatory Authority of India (TRAI) finally wound up its arguments on 25 November on broadcasting advertising cap regulations. Speaking for the third consecutive day, TRAI counsel Rakesh Dwivedi elaborated on Article 14 of the Constitution that talks about the fundamental right to equality.

    His point was that all channels are at a par. Although free-to-air (FTA) channels don’t get subscription revenues like others, they are benefited in some other way and thus they should also be treated as those that receive payments. Dwivedi also submitted data alleging that channels had grossly (highly) violated the ad regulation.

    With that the TRAI concluded its side of arguments and the first Amicus Curiae took over. Madhavi Divan started with the history of television and brought up many points like how TV was licensed, a few judgements, the Cable TV Networks Act, the TRAI act, the convergence bill that never saw the light of day as well as the fact that there was a bill to establish an independent authority. She argued that broadcasting services fall under the TRAI Act because originally they were planning to bring it under an independent act, which never happened.

    She also stated that duration of advertisements does not come under content. She read out a few important points from a book that gave insight in to the setting up of TRAI, how cable operators came into existence and other details about the industry. The bench wanted to know from her who is the enforcer of violation of the duration of advertisements. Divan said she would be attending to that tomorrow.

    Once she concludes her arguments in a day or two, the second amicus – Aman Ahluwalia would speak on the subject.

    The ad cap issue hearing appears to be entering its last round. It is just a matter of time – some say within two to three weeks that TDSAT will be ready to announce its verdict.