The government?s much-touted Broadcast Bill and self regulation guidelines (content code) hangs in the balance with the information and broadcasting (I&B) ministry and the broadcast industry at loggerheads over the latest drafts of the regulations. Even though the ministry claims it had involved the industry at almost every step of drafting the regulations, most stakeholders have firmly rejected the draft. So with industry and the ministry divided, the Bill seems to be stuck.

The industry has lambasted the ministry on a number of issues contained in the Bill and the content code. The very idea of regulating the media, cross-media holding restrictions, ensuring an independent regulator, carriage of local content, Prasar Bharati?s role as a public broadcaster, over-regulation of radio and the ministry?s hurry to pass the Bill and the code are just some of the contentious issues.

Regulating the media

The Bill mandates the setting up of a Broadcast Authority of India (BRAI), which will regulate the sector. But the lack of transparency in the appointment, the removal of the regulator by the government and the regulator?s independence are issues being questioned by broadcasters. They want some say in the appointment and have suggested a committee of private and government representatives be set up to look into the matter. After all, it is the media that is under scrutiny.

The industry is questioning why the media needs to be regulated at all. ?The fourth estate is like an auditor and you can?t put restrictions on auditors. ?The existing guidelines are good enough. India is a mature and powerful democracy and it is the media, the fourth estate, that should be the auditor of content, not a regulator,? says G Krishnan, CEO, TV Today.

An unclear content code

Times Now CEO Sunil Lulla agrees with Krishnan. The provisions of the Broadcast Bill would ?shackle? the industry. ?It is improper to put regulation in place,? Lulla says. ?The new legislation is not enabling. It is disabling. Also, if it is self-regulation, why are there guidelines? The ministry is asking the broadcasters to employ an internal auditor but the auditor has been given stringent guidelines to follow.? Ficci?s Amit Mitra also rejects the very idea of a media regulator. Regulation is required only when there is market failure, he says, but with so many players in the market, where is the question of that.

The ambiguity of the content code is also a point of contention. Chintamani Rao of India TV lambasted the content code for being ?full of homilies and broad generalisations?.

Cross-media restrictions

Cross-media holding restrictions and sectoral caps in the Bill are another contentious issue. The industry is unanimous in its opposition to both. The cross-media restrictions require that no content broadcasting service provider will have more than 20% share of paid-up equity or any other financing arrangements that may give it management control over the financial management or editorial policies of any other broadcaster (read channel) or broadcast service provider (read cablewallah, DTH, CAS etc). Other sectoral caps included in the Bill restrict the total number of channels a broadcaster can have in a city or state to a ceiling of 15% of all the channels available in the city.

Cross-media restrictions are required not only when there is market dominance, but also the fear of abuse of dominance, Mitra says. With licences given to over 100 news channels, where was the question of dominance, he asks.

Amit Khanna, chairman of Reliance Entertainment, says that in a multi-ethnic, culturally plural situation, cross-media restrictions are absurd: ?All across the world, companies are consolidating and here such restrictions are forcing companies like Zee to form Dish TV, WWIL, and so forth, out of one company, causing fragmentation, which is unacceptable.?

The Companies Act, Competition Act, MRTP Act are already in existence, says Khanna. Similarly, on sectoral capping, he says the entertainment industry is globally worth $1.4 trillion, and in India it is the second largest employer. Hence such restrictions would have to go if India indeed wanted to become the global ?soft? power everyone wants. The Broadcast Bill requires 15% of content to be local as well as 10% to be public service broadcast. These are contentious issues as it is difficult for international channels to carry local content and public service broadcast and local content have not been clearly defined.

Prasar Bharati?s role

Another issue that has the industry up in arms is that Prasar Bharati is mandated as the public broadcaster, yet it competes with other broadcasters. India TV?s Rao has a major grouse on this. Doordarshan has no right to be called a public broadcaster, as mentioned in the Bill, since it is competing for commercial revenue with private broadcasters. If it is to get free content, then it cannot be allowed to commercially market the content. Rao demands that DD should show cricket without commercial marketing or pay for it like everyone else. The public broadcaster should be publicly funded and publicly accountable, not compete commercially with others.

Radio is peeved too

Radio broadcasters are also unhappy. ?The radio industry in India is the most regulated globally,? says Tarun Katial, COO, Big 92.7 FM. ?The fact that radio is the most local of all media and almost everyone has access to it but the medium is not allowed to make people aware of the goings on around them, not allowed to spread awareness of floods and earthquakes around them? not allowed to broadcast any form of news is absurd,? he says.

The first draft of the Broadcast Bill was ready in early 2006 and after major debate, the draft was put up on the I&B website to garner public comments and suggestions. The self-regulation guidelines came in February 2007 after which the ministry sought comments and suggestions from all stakeholders. And now after the second draft is ready, the ministry has been receiving flak for trying to pass the Bill and the Code with only 15 days of discussions ? the ministry put the drafts up for debate on the website two weeks back and set a deadline of August 5 to get all suggestions before introducing the Bill in Parliament in the Monsoon Session.

The ministry has relented a bit and said it will introduce the Bill in the Winter Session with some of the modifications asked for, but this is not enough for the industry. ?The regulations concern the media and, therefore, should be given a minimum of 12 months of debate,? says AP Parigi, MD and CEO, ENIL, the company that runs Radio Mirchi. ?This 12-month moratorium should be announced to discuss the Bill in detail, instead of placing it before the industry with a deadline.?

Advertisers not too happy either

Even the advertising fraternity is worried about the overriding powers the draft Broadcasting Services Regulation Bill, 2007 has envisaged for regulating content of promotional campaigns despite the Advertising Standard Council of India (ASCI) having its own model code of conduct.

?In a meeting with I&B officials, we expressed our view that as the ASCI has a code for self regulation, why should an outsider regulate us,? an ASCI representative said.

ASCI?s unhappiness comes on the heels of the government taking a suo moto action to ban two undergarment advertisements Lux Cozy and Amul Macho, claiming them to be indecent, which were cleared by the Consumer Complaints Council (CCC) of the apex body regulating advertisements in India. The draft Broadcasting Services and Regulation Bill, 2007 has incorporated that it would override the deliberations of ASCI. ?The CCC has 21 members, of which 12 are from non-advertising backgrounds and they have been involved in clearing those advertisements,? the ASCI official said.

I&B?s response

To be fair, the ministry has sought to explain itself and made modifications to the Bill to appease the industry. At a recent seminar organised by Ficci on the matter, I&B officials made a presentation explaining some of the contentious issues, including cross-media restrictions, sectoral capping and public service broadcasting obligations. I&B secretary, Asha Swarup stressed that what the government was trying to do was take the power of content regulation out of the government?s hands and give it to the industry. ?Restrictions exist already, which is how some channels can be banned and have been banned. So we are trying to formalise the code and it would be the channels who would exercise the powers, not the government,? she maintained.

She justifies cross-media restrictions by saying that it is in the interest of the industry to avoid ?a Sun TV-like situation?, which is an example of complete monopolisation and not acceptable. The industry is not impressed. Pradeep Singh, additional secretary, I&B, says cross-media restrictions exist in all countries, but admits that the trend across the world is towards liberalising, which will come to India as well: ?Every three years, the issue will be reviewed and the percentages will go up, as shown in the new draft Bill.?

Swarup told agitated broadcasters that issues like media regulation and cross-media holdings have been hanging fire for the last 10 years and cannot wait indefinitely. She said the government has been engaging with the industry since 1997, and the present draft, which has been put up on the ministry?s website from July 20, is the 19th in line. Singh observes that the media is being ?a little too emotional? and claims there is a ?trust deficit? here.

There is some support for the ministry ? a small but vociferous contingent of cable operators, headed by Roop Sharma, who stress that they are happy the regulation was being brought in, as it will create a level playing field and not one dominated just by broadcasters.