India: Guidelines For Uplinking And Downlinking Of Satellite TV Channels In India 2022

I. INTRODUCTION:

Meaning of Uplinking and Downlinking of Satellite TV:

Satellite Television is a service that delivers linear television programming to viewers by relaying it from the communications satellite orbiting the Earth to the viewer's location through Distribution Platform Operators ("DPO"), like a Cable Operator or a Direct-to-Home (DTH) service provider. The signals are received by the DPOs via an outdoor parabolic antenna commonly referred to as a satellite dish and a low-noise block downconverter. Uplink refers to a communication channel to transmit messages of electronic nature/signals through a teleport to a satellite. Downlinking, on the other hand, means the communication channel used to receive the electronic messages/signals coming from the satellite

A brief history of the guidelines relating to the uplinking and downlinking of satellite television channels in India:

Considering the Cable Television Networks (Regulation) Act, 1995 and Cable Television Network Rules, 1994 regulated only the Cable Television Operators/Networks, the Ministry of Information and Broadcasting, Government of India ("Ministry") introduced the "Guidelines for Uplinking from India" in July, 2000 to regulate Satellite Television service/channels being uplinked from India. The said Guidelines of 2000 were further amended pursuant to the "Guidelines for Uplinking of News and Current Affairs TV Channels from India" in March, 2003, which were again amended in August, 2003. The said Guidelines of 2003 were followed by "Guidelines for use of SNG/DSNG's" in May, 2003 along with addendum dated 1st April, 2005 to the Uplinking guidelines, wherein the Ministry regulated the use of SNG/DSNG's which are primarily used by Satellite Television channels for uplinking signals of live events, including any live coverage of news or sports events, etc. Later the Ministry had, on 20th October 2005, further amended these Uplinking Guidelines, which came into effect from 2nd December, 2005. While all the said guidelines till 2005 dealt with uplinking of Satellite Television channels from India, and further considering there were multiple channels which were being uplinked from foreign countries and downlinked in territory of India, the Ministry introduced the Policy Guidelines for Downlinking of Television Channel on 11th November, 2005 which also bought the downlinking aspect under the purview of the Ministry. Some amendments to these Guidelines have also come into operation as a result of enactment of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 and the rules and notifications thereunder. Some amendments were also needed in the provisions relating to the determination of the foreign investment in the applicant/permission holder company to bring them in line with the extant FDI Policy of the Government.

The Government on 7th October, 2011 further amended both the Uplinking and Downlinking guidelines. Accordingly, in supersession of all previous guidelines, the Government notified the Policy Guidelines for Uplinking of Television Channels from India and Policy for Downlinking of Television Channels ("2011 Guidelines")¹, which came into effect from 05th December, 2011.

Recently, the Government, with a two-fold aim of (i) making India a teleport hub for the world; and (ii) Ease of Doing Business in India, in pursuance of the Cabinet decision taken on 28th September, 2022 regarding amendments in the 2011 Guidelines, introduced a consolidated guideline i.e. the "Guidelines for Uplinking and Downlinking of Satellite Television Channels in India, 2022" ("2022 Guidelines")², which came into force on 09th November, 2022. It is also pertinent to note that the 2022 Guidelines deals only with the uplinking and downlinking of satellite TV channels in India which are within the purview of the Ministry of Information & Broadcasting, thus, keeping out of its scope and ambit other ancillary permissions required from the Wireless Planning and Coordination (WPC) of the Ministry of Communications. One may also bear in mind that the DPOs and the issues relating to Interconnection between Broadcasters to DPOs, and the Tariff of the Satellite Television channels are governed by the Telecom Regulatory Authority of India, which is an independent regulatory authority formed under the TRAI Act, including for the Broadcasting Sector, and therefore do not form part of the 2022 Guidelines.

II. KEY HIGHLIGHTS AND IMPACTS FROM THE 2022 GUIDELINES:

1. Permission for Setting up of Teleport, Uplinking and Downlinking of TV Channels

A company or an LLP may apply online on Broadcast Seva Portal of the Ministry ("Portal") along with processing fees and other documents as specified in the Guidelines for setting up a Teleport/teleport hub and/or Uplinking of Television Channels from India and/or Downlinking of Television Channels in India ("Applicant"). The Ministry shall, preferably within 30 days of receiving clearance and approval of Ministry of Home Affairs ("MHA") and other authorities, and after satisfying itself that the Applicant is fit for grant of permission, issue a Letter of Intent ("LOI"), requesting the Applicant to pay the permission fees along with Performance Bank Guarantee ("PBG") and Security Deposit within the stipulated period. Upon receipt of the payment, the Ministry grants the Applicant the permission either for setting up the teleport or Uplinking or Downlinking of Satellite TV Channels (as the case may be) ("Permission Holder") for a 10 year period or the term as prescribed under the 2022 Guidelines ("Term"). The Permission granted is conditional to the Permission Holder abiding by the conditions (as specified in the Guidelines) throughout the Term. Further, in addition to the aforementioned, where permission is sought for setting up of teleport, the Permission Holder is required to inform the Ministry about the operational status of the teleport as soon as it becomes operational.

It is pertinent to note that although the 2022 Guidelines state the specific timeline for the Ministry to grant permission from receipt of security clearance from MHA, the time frame for such security clearance by MHA is beyond the control and purview of the Ministry. The 2022 Guidelines however do not clarify if the Applicant who has been granted security clearance by the MHA within a specified period would receive an early approval from the Ministry, or would need to be cleared again.

2. Change of Name & Logo of a TV Channel:

A company/ LLP shall always display on the permitted TV channel only that name and logo which has been approved by the Ministry, failing which and/or any display of dual logo would be treated as violation of the 2022 Guidelines. A Company / LLP may apply for change of name and/or logo on the Portal by paying the prescribed along with submission of the required documents. The 2022 Guidelines however do not clarify on whether display of dual logo for a limited period would not be considered a violation of the 2022 Guidelines, for e.g. the television channels run/show of a branded block of third party on their channels where logo of such third party brand is also displayed during such telecast along with the channel logo.

3. Telecast of Live Events and Use of DSNG / SNG Equipment:

A news channel which is given permission under the Guidelines shall uplink live telecast by using SNG/DSNG equipment permitted to it or by buying such equipment from permitted entity & shall register such equipment. Further, a permitted non-news and current affairs channel shall register itself by paying the prescribed fee to live telecast any event and shall, while registration, furnish the required details. A Foreign channel entity may be granted permission up to 12 months at a time for live uplinking of an event from time to time through a pre-designated permitted teleport, by way of an application made in this behalf online on the Portal upon the fulfilment of the conditions mentioned in the Guidelines Thus, Company / LLPs desirous to telecast live events need not seek any additional permission for the same and only the event needs to be pre-registered with the Ministry through the Portal, however any such Company / LLP has to be mindful of the Programme Codes as laid down in Cable television Network Rules, 1994 and shall be in total compliance with the same, failing which the Company / LLP may be held liable for violations under the 2022 Guidelines, the penalty of which may even lead to suspension of the Channel and/or revocation of the permission for operation of the channel. Hence, it is critical for the broadcasters to ensure placement of experienced personnel watching the live events at the same time of uplinking of signals with a control to switch in case of any exigency!

The use of DSNG/SNG would be permitted to News and Current Affairs channels uplinked from India for live news / footage collection and point-to-point transmission. The Ministry has approved the eligibility of (i) Company/LLP having permission for operating teleport, (ii) Company / LLP having permission for uplinking news channel and (iii) Company / LLP having permission for news agency for purchase and use of DSNG & SNG Equipment: A company/LLP having a permitted non-news channel which is uplinked from its own permitted teleport, can use DSNG/SNG equipment for their approved channels, for transfer of video feeds to the permitted teleport.

Only teleport operators / channel owners permitted by the Ministry and Doordarshan may grant SNG/DSNG equipment / infrastructure to other broadcasters who are permitted to uplink from India. A non-news or a foreign channel may use the services of a permitted DSNG/SNG equipment for the purposes mentioned in Part VII of the Guidelines i.e. for live telecast of events. Further, no separate permission would be required to use the already pre-approved SNG / DSNG Equipment.

4. Appointment of new CEO / Director:

A company / LLP having permission under these Guidelines shall not appoint a new person as a Chief Executive Officer (by whatever name called), Director or Designated Partner, without prior approval of the Ministry. However, in case of a company having only two Directors or of a LLP having only two Designated Partners, the new Director or Designated partner may be appointed, and intimation sent to the Ministry along with all details required for security clearance by the Ministry of Home Affairs (MHA) under the condition that in the event that security clearance is denied by MHA, such person shall be removed forthwith from the post of Director or Designated partner, as the case may be, by the Permission Holder. It is pertinent to note that in all other scenarios, the Permission Holder cannot engage a CEO/Director/Designated Partner even in the case of business exigency/requirement or any other emergency and has to wait until the security clearance for such personnel is received from the MHA, for which the timelines are not given or pre-determined. As indicated above, the 2022 Guidelines do not clarify if such personnel i.e. CEO/Director/Designated Partner who has been granted security clearance by the MHA in the recent past would receive an early approval from the Ministry, or would need to be cleared again.

5. Penalties for Violation:

Where a channel is found to have broadcast a content which is in violation of the Programme Code and Advertising Code under the Cable Television Networks Regulation Act, 1995 and/or any of the provisions of the 2022 Guidelines, it shall be liable for penal action, including one or more of the following: (a) Advisory, to be communicated in writing to the entity; (b) Warning, to be communicated in writing to the entity; (c) An apology scroll, to be run on the channel; (d) A statement of apology to be read out by the Director/CEO of the entity on the channel; (e) Directing the channel to be off-air for specified number of hours/days; and (f) Suspension/revocation of permission. Thus, it is critical to note that while the penalty clauses have been rationalized and separate nature of penalties have been proposed for different type of contraventions as against uniform penalty which were provided in the earlier guidelines, the Ministry, under the 2022 Guidelines, is empowered to direct suspension / revocation of permission of Channel in case of repeated offences of violations of the 2022 Guidelines which was otherwise read as a 'three-strike/five-strike rule' under the previous Guidelines.

6. Applicability of the Guidelines on existing Permissions:

Clause 36 of the Guidelines lay down that all the various terms and conditions as stated in the Guidelines shall automatically apply to all permissions and approvals granted in this Ministry under the previous guidelines and further, all renewals shall also be governed by these Guidelines. Thus, by the virtue of this clause, the new 2022 Guidelines have aimed to bring under its scope all the permissions and their renewals thereof granted under the previous Guidelines. Although, the intention of the Ministry was to consolidate the earlier guidelines to simplify and rationalize the regulations but while doing so, this created a larger impact on Companies since during the time of renewal the Company who was granted permission for News Channel under the 2005 Guidelines, whose net worth was required to be Rupees 5 crores for the set-up of first news channel will now be required to have a net worth of Rupees 20 crores.

7. Obligation of Public Service Broadcasting:

The Guidelines provide that as airwaves/frequencies are public property and need to be used in the best interest of the society, a Company/LLP having permission under these guidelines for uplinking a channel and its downlinking in India (other than foreign channels only downlinked in India) may undertake public service broadcasting for a minimum period of 30 minutes in a day on themes of national importance and of social relevance, including the following, namely —

1. Education and spread of literacy;
2. Agricultural and rural development;
3. Health and family welfare;
4. Science and technology;
5. Welfare of women;
6. Welfare of the weaker section of the society;
7. Protection of environment and of cultural heritage; and
8. National integration.

Provided further that the channels may, for the purpose, appropriately modulate their content to fulfil the obligation, except where it may not be feasible, such as in the case of sports channels, etc.

III. KEY POINTS OF DIFFERENCE BETWEEN 2011 GUIDELINES AND 2022 GUIDELINES:

IV. CONCLUSION:³

The Ministry, in form of the 2022 Guidelines, have consolidated all the previous guidelines into one simple legal framework which is more systemized to avoid duplication. In conclusion, the 2022 Guidelines has a positive impact overall. While it has allowed for greater competition and innovation in the market, it has also addressed the challenges in terms of regulation and compliance and has eased it. The 2022 Guidelines are intended to ensure the smooth and efficient operation of the Satellite TV Channels, while also protecting the national interests and promoting the responsible transmissions of content through Satellite TV Channels. Overall, the changes in the uplinking and downlinking of satellite TV channels in India reflects the broader transformation of the media and entertainment sector in the country, however, the Ministry may consider issuing some clarifications, which may come up soon with efforts from personnel from industry / stakeholders.

Footnotes

1. https://mib.gov.in/sites/default/files/FinalUplinkingGuidelines05.12.2011.pdf and https://mib.gov.in/sites/default/files/Downlinking_Guidelines05.12.11.pdf

2. https://static.pib.gov.in/WriteReadData/specificdocs/documents/2022/nov/doc2022119122101.pdf

3. https://pib.gov.in/PressReleasePage.aspx?PRID=1874717

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