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Securities And Exchange Board Of India

The Telecommunication (Broadcasting And Cable Services) Interconnection Regulations, 2004

SECURITIES AND EXCHANGE BOARD OF INDIA
India

The Telecommunication (Broadcasting And Cable Services) Interconnection Regulations, 2004

Rule THE-TELECOMMUNICATION-BROADCASTING-AND-CABLE-SERVICES-INTERCONNECTION-REGULATIONS-2004 of 2004

Published on 10 December 2004
Commenced on 10 December 2004
[This is the version of this document from 10 December 2004.]
[Note: The original publication document is not available and this content could not be verified.]

The Telecommunication (Broadcasting And Cable Services) Interconnection Regulations, 2004Published vide Notification No. 8-26/2004-B&CS, dated 10.12.2004, published in the Gazette of India, Extraordinary, Part III, Section 4, dated 10.12.2004.

1037.

In exercise of the powers conferred upon it under section 36, and paras (ii), (iii) and (iv) of clause (b) of sub-section (1) of section 11 of the Telecommunication Authority of India Act, 1997 read with the Notification No. 39 S.O. No. 44(E) and 45(E), dated 9-1-2004 issued from file No. 13-1/2004-Restg by the Government of India under clause (d) of sub-section (1) of section 11 and proviso to clause (k) of sub-section (1) of section 2 of the Telecom Regulatory Authority of India Act, 1997, the Telecom Regulatory Authority of India makes the following regulations, namely:-

1. Short title, extent and commencement .-(i) This regulations shall be called The Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004.

(ii)These regulations shall cover arrangements among service providers for interconnection and revenue share, for all Telecommunication (Broadcasting and Cable Services) throughout the territory of India.

(iii)These regulations shall come into force with effect from the date of its publication in the Official Gazette.

2. Definitions .-In these regulations, unless the context otherwise requires,-

(a)[ "addressable system" means an electronic device or more than one electronic device put in an integrated system through which signals of television channels can be sent in encrypted or unencrypted form, which can be decoded by the device or devices at the premises of the subscriber within limits of the authorisation made, on the choice and request of such subscriber, by the service provider to the subscriber;]

(aa)[ "Act" means the Telecom Regulatory Authority of India Act, 1997 (24 of 1997);] [ Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007).]

(b)"agent or intermediary" means any person including an individual, group of persons, public or body corporate, firm or any organisation or body authorised by a broadcaster/multi-system operator to make available TV channel(s), to a distributor of TV channels;

(c)"authority" means the Telecom Regulatory Authority of India established under sub-section (1) or section 3 of the Telecom Regulatory Authority of India Act;

(d)"authorised officer" has the same meaning as given in the sub-section (a) of section 2 of the Cable Television Networks (Regulation) Act, 1995, as amended;

(e)"broadcaster" means any person including an individual, group of persons, public or body corporate, firm or any organisation or body who/which is providing broadcasting service and includes his/her authorised distribution agencies;

(f)"broadcasting services" means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electromagnetic waves through space or through cables intended to be received by the general public either directly or indirectly and all its grammatical variations and cognate expressions shall be constructed accordingly;

(g)"cable operator" means any person who provided cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television network;

(h)"cable service" means the transmission by cable of programmes including re-transmission by cables of any broadcast television signals;

(i)"cable television network" means any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment designed to provide cable service for reception by multiple subscribers;

(ia)[ "carriage fee" means any fee paid by a broadcaster to a distributor of TV channels, for carriage of the channels or bouquets of channels of that broadcaster on the distribution platform owned or operated by such distributor of TV channels, without specifying the placement of various channels of the broadcaster vis-a-vis channels of other broadcasters;] [ Inserted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]

[[(ib)] [Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007). ]["commercial subscriber" means any subscriber who receives a programming service at a place indicated by him to a service provider and uses signals of such service for the benefit of his clients, customers, members or any other class or group of persons having access to such place;] [Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007). ]]

(j)"distributor of TV channels" means any person including an individual, group of persons, public or body corporate, firm or any organisation or body re-transmitting TV channels through electromagnetic waves through space intended to be received by general public directly or indirectly. The person may include, but is not limited to a cable operator, direct to home operator, multi-system operator, head ends in the sky operator;

(k)"direct to home operator" means an operator licensed by the Central Government to distribute multi-channel TV programmes [* * *] [ Omitted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007).] by using a satellite system directly to subscriber's premises without passing through intermediary such as cable operator or any other distributor of TV channels;

(ka)[ "direct to home service" means distribution of multi channel TV programmes by using a satellite system by providing TV signals directly to subscriber's premises without passing through an intermediary such as cable operator or any other distributor of TV channels; [ Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007).]

(kb)"direct to home subscriber" means a subscriber who receives the signals of a direct to home service;]

(l)"head ends in the sky operator" means any person permitted by the Central Government to distribute multi-channel TV programmes in C band by using a satellite system to the intermediaries like cable operators and not directly to subscribers;

(la)[ "Internet Protocol Television Service" means delivery of multi channel TV programmes in addressable mode by using Internet Protocol over a closed network of one or more service providers;] [ Inserted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]

(i)exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette players;

(ii)any audio or visual or audio-visual live performance or presentation, and the expression "programming service" shall be construed accordingly;]

(ma)[ "ordinary subscriber" means any subscriber who receives a programming service form a service from a service provider and uses the same for his domestic purposes; [Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007). ]

(mb)"pay channel" means a channel for which fees it to be paid to the broadcaster by the person receiving the signals from the broadcaster, for its re-transmission through electromagnetic waves through cable or through space intended to be received by the general public either directly or indirectly;]

(mc)[ "placement fee" means any fee paid by a broadcaster to a distributor of TV channels, for placement of the channels of such broadcaster vis-a-vis channels of other broadcasters on the distribution platform owned or operated by such distributor of TV channels;] [ Inserted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]

(md)[] [ Renumbered by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]["programme" means any television broadcast and includes- [Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007). ]

(n)"service provider" means the Government as a service provider and includes a licensee as well as any broadcaster, multi-system operator, cable or distributor of TV channels;

(na)[ "subscriber" means a person who receives the signals of a service provider at a place indicated to the service provider by him without further transmitting it to any other person and includes ordinary subscribers and commercial subscribers unless specifically excluded;] [ Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007).]

(o)[ "RIO" means the Reference Interconnect Offer published by a Party, prescribing conditions by fulfilling which other Parties would be entitled to obtain interconnection from that party; [ Inserted by Noti. No. 6-4/2006-B&CS, dated 4.10.2006.]

(p)"subscriber base" means the number of subscribers--

(i)as agreed to by two service providers in a non-addressable system on the basis of which payments are made by one service provider to the other, or

(ii)as reflected by the Subscriber Management System, where addressable systems are employed;

(q)"subscriber line report" or "SLR" means a monthly statement wherein, in a non-addressable system, a multi system operator and a cable operator agree upon the subscriber base for that month;

(r)"subscriber management system" or "SMS" means a system or device which, in an addressable system, stores the subscriber records and details with respect to name, address, etc., as well as information regarding the hardware being utilized by the subscriber, channels/bouquets of channels, subscribed to by the subscriber, price of such channels or bouquets of channels as defined in the system, the activation/deactivation dates and time for any channel or bouquet of channels, a log of all actions performed on a subscriber's record, invoices raised on each subscriber and the amounts paid by the subscriber for each billing period.]

3. General provisions relating to non-discrimination in interconnect agreements .-3.1 No broadcaster of TV channels shall engage in any practice or activity or enter into any understanding or arrangement, including exclusive contracts with any distributor of TV channels that prevents any other distributor of TV channels from obtaining such TV channels for distribution.

3.2Every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi-system operator, head ends in sky operator; Multi-system operators shall also on request re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators:Provided that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment:Provided further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request:[Provided also that the provisions of this sub-regulation shall not apply in the case of a distributor of TV channels, who seeks signals of a particular TV channel from a broadcaster, while at the same time demanding carriage fee for carrying that channel on its distribution platform.][ Explanation ] [Inserted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006. ][1] [ Explanation renumbered Explanation 1 by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).][.-The applicant distributors of TV channels intending to get signal feed from any multi-system operator other than the presently-affiliated multi system operator, or from any agent/any other intermediary of the broadcaster/multi system operator, or directly from broadcasters shall produce along with their request for services, a copy of the latest monthly invoice showing the dues, if any, from the presently-affiliated multi system operator, or from any agent/any other intermediary of the broadcaster/multi system operator who collects the payment for providing TV channel signals.] [Inserted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006. ][ Explanation 2.-The stipulation of "placement frequency" or "package/tier" by the broadcaster from whom the signals have been sought by a distributor of TV channels, as a "pre-condition" for making available signals of the requested channel(s) shall also amount to imposition of unreasonable terms.] [ Inserted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]

3. [3. Any broadcaster/multi system operator or any agent/any other intermediary of the broadcaster/multi system operator, who collects the payment for providing TV channel signals to any distributor of TV channels, shall issue monthly invoices to the distributor of TV channels. The monthly invoice shall clearly specify the arrears and current dues along with the due date for payment of the same.

Explanation .-Any claim for arrears should be accompanied by proof of service of invoices for the period to which the arrears pertain.] [ Inserted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006.]

3. [4] [ Renumbered by Noti. No. 6-4/2006-B&CS, dated 4.9.2006.] A broadcaster or his/her authorised distribution agency would be free to provide signals of TV channels either directly or through a particular designated agent or any other intermediary. A broadcaster shall not be held to be in violation of clauses 3.1 and 3.2 if it is ensured that the signals are provided through a particular designated agent or any other intermediary and not directly. Similarly a multi-system operator shall not be held to be in violation of clauses 3.1 and 3.2 if it is ensured that signals are provided through a particular designated agent or any other intermediary any not directly:

Provided that where the signals are provided through an agent or intermediary the broadcaster/multi-system operator should ensure that the agent/intermediary acts in a manner that is (a) consistent with the obligations placed under this regulation and (b) not prejudicial to competition.[* * *] [ Omitted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006.]

3. [5 Any broadcaster/multi system operator or any agent/any other intermediary of the broadcaster/multi system operator to whom a request for providing TV channel signals is made, should either provide the signals on mutually agreed terms to the distributor of TV channels who is seeking signals, or specify the terms and conditions on which they are willing to provide TV channel signals, in a reasonable time period but not exceeding sixty days from the date of the request. In case, the broadcaster/multi system operator or any agent/any other intermediary of the broadcaster/multi system operator to whom a request for providing TV channel signals is made, turns down the request for TV channel signals, the reasons for such refusal must also be conveyed within sixty days from the date of the request for providing TV channel signals so as to enable the distributor of TV channels to agitate the matter at the appropriate forum.

Explanation .-The time limit of sixty days shall also include time taken by the broadcaster to refer the distributor of TV channels, who has made a request for signals, to its agent or intermediary and vice versa .] [Inserted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006. ]

3. [6] [ Renumbered by Noti. No. 6-4/2006-B&CS, dated 4.9.2006.] The volume related scheme to establish price differentials based on number of subscribers shall not amount to discrimination if there is a standard scheme equally applicable to all similarly based distributors of TV channel(s).

[ Explanation .-"Similarly based distributor of TV channels" means distributors of TV channels operating under similar conditions. The analysis of whether distributors of TV channels are similarly based includes consideration of, but is not limited to, such factors as whether distributors of TV channels operate within a geographical region and neighbourhood, have roughly the same number of subscribers, purchase a similar service, use the same distribution technology.For the removal of doubts, it is further clarified that the distributors of TV channels using addressable systems including DTH, IPTV and such like cannot be said to be similarly based vis-a-vis distributors of TV channels using non addressable systems.] [ Substituted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006.]

3.7The provisions of clauses 3.1 to 3.6 shall apply to the contracts already entered into, after 90 days from the date of this regulation coming into force.

4. [ Disconnection of TV channel signals

.-4.1 No broadcaster or multi system operator shall disconnect the TV channel signals to a distributor of TV channels without giving three weeks notice to the distributor clearly giving the reasons for the proposed action:Provided that a notice would also be required before disconnection of signals to a distributor of TV channels if there was a written agreement, permitting the distribution of the broadcasting service, which has expired due to efflux of time:Provided further that no notice would be required if there is no ][written agreement] [ Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).], [permitting the distribution of the signals.

4.2No distributor of TV channels shall disconnect the re-transmission of any TV channel without giving three weeks notice to the broadcaster or multi system operator clearly giving the reasons for the proposed action.

4.3A broadcaster/multi system operator/distributor of TV channels shall inform the consumers about such dispute to enable them to protect their interests. Accordingly, the notice to disconnect signals shall also be given in two local newspapers out of which at least one notice shall be given in local language in a newspaper which is published in the local language, in case the distributor of TV channels is operating in one district and in two national newspapers in case the distributor of TV channels is providing services in more than one district. The period of three weeks mentioned in sub-clauses 4.1 and 4.2 of this regulation shall start from the date of publication of the notice in the newspapers or the date of service of the notice on the service provider, whichever is later.Explanation .-1. In case the notice is published in two newspapers on different dates then the period of three weeks shall start from the latter of the two dates.

2. Broadcaster/multi system operator/distributors of TV channels may also inform the consumers through scrolls, on the concerned channel(s). However, issue of notice in newspapers shall be compulsory.

4.4The notice in the newspapers must give the reasons in brief for the disconnection.] [Substituted by Noti. No. 6-4/2006-B&CS, dated 4.9.2006. ][4-A. Interconnection Agreements to be in writing.-4-A.1 It shall be mandatory for the broadcasters of pay channels and distributors of TV channels to reduce the terms and conditions of all their interconnection agreements to writing.

4.

-A.2 No broadcaster of pay channels or distributor of TV channels, such as multi system operator or headend in the sky operator, shall make available signals of TV channels to any distributor of TV channels without entering into a written interconnection agreement.

4.

-A.3 Nothing contained in regulations 4A.1 or 4A.2 shall apply to any supply of signals or continuance of supply of signals of TV channels by a broadcaster or distributor of TV channels, such as multi system operator or headend in the sky operator, in pursuance of or in compliance with any order or direction or judgment of any Court or tribunal, including any order or direction or judgment of any Court or tribunal on any proceeding pending before such court or tribunal.

4.

-A.4 It shall be the responsibility of every broadcaster of pay channels who enters into an interconnection agreement with a distributor of TV channels to hand over a copy of signed interconnection agreement to such distributor of TV channels and obtain an acknowledgement in this regard within a period of 15 days from the date of execution of the agreement and, similarly, it shall be the responsibility of every multi system operator or headend in the sky operator, as the case may be, who enters into an interconnection agreement with a cable operator to hand over a copy of signed interconnection agreement to such cable operator and obtain an acknowledgement in this regard within a period of 15 days from the date of execution of the agreement.]

5. [ Standard Interconnection Agreements

.-5.1 All broadcasters, multi system operators and cable operators shall mutually negotiate and finalise their interconnection agreements in respect of areas notified by the Central Government under section 4-A(1) of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995) vide Notification No. S.O. 1231(E), dated 31-7-2006.

5.2In case any of the service providers in the areas as notified by the Central Government vide Notification No. S.O. 1231(E), dated 31-7-2006, are not able to arrive at a mutually acceptable interconnection agreement within a time-period to be specified by the Authority through a direction, then they shall enter into interconnection agreements in terms of the standard interconnection agreements as specified in Schedule I (between broadcaster and multi system operator) or in Schedule II (between multi system operator and cable operator) to this Regulation, as the case may be, within a time period to be specified by the Authority for entering into standard interconnection agreements.Explanation .-For removal of doubts, in respect of areas notified by the Central Government referred to in clauses 5.1 and 5.2 above, it is clarified that if the service providers have already entered into mutually acceptable interconnection agreements by such date as specified in the direction issued by the Authority, then they need not take recourse to standard interconnection agreements specified in Schedules I and II. Further, those service providers, who have a pre-existing interconnection agreement as on the date of issue of this regulation, will also have the option, after the expiry of their existing agreement, to either enter into a mutually acceptable interconnection agreement, or failing which to enter into interconnection agreements as per the standard agreements specified in Schedules I & II, within a period to be specified by the Authority in the direction.

5.3If the provisions of the standard interconnection agreements in Schedule I and II are in conflict with any Act, rule, regulation, direction or order of the Government, TDSA T or TRAI, as the case may be, then the provisions of such Act, rule, regulation, direction or order shall prevail.

6. Prohibition of minimum guarantee clause .-Where a distributor of TV channels is using a technology by which pay channels can only be seen through an addressable system, then no service provider shall stipulate, insist or provide for any clause in an interconnection agreement with such a distributor which would require such distributor to pay a minimum guaranteed amount as subscription fee for the services provided.]

7. [ Conversion of a Free To Air channel/Pay channel

.-7.1 The nature of any channel, i.e., Free To Air or Pay will normally remain the same for a period of one year. Any broadcaster of a Free To Air channel intending to convert the channel into a Pay Channel or any broadcaster of a Pay channel intending to convert the channel into a Free To Air channel shall inform the Authority and give public notice in the manner specified in clause 4.3, one month before the scheduled date of conversion.]

8. Time period for renewal of existing agreements .-8.1 Parties to an interconnection agreement for supply of TV channel signals shall begin the process of negotiations for renewal of existing agreement at least two months before the due date of expiry of the existing agreement:

Provided that if the negotiations for renewal of the interconnection agreement continue beyond the due date of expiry of the existing agreement then the terms and conditions of the existing agreement shall continue to apply till a new agreement is reached or for the next three months from the date of expiry of the original agreement, whichever is earlier. However, once the parties reach an agreement, the new commercial terms shall become applicable from the date of expiry of the original agreement:Provided further that if the parties are not able to arrive at a mutually acceptable new agreement, then any party may disconnect the retransmission of TV channel signals at any time after the expiry of the original agreement after giving a three weeks notice in the manner specified in clause 4.3. The commercial terms of the original agreement shall apply till the date of disconnection of signals.

9. Finalising Subscriber Base at the time of first agreement .-9.1 First agreement between Multi System Operator and Cable Operator .-In non-addressable systems, while executing an interconnection agreement for the first time between a multi system operator and a cable operator, the parties to the agreement shall take into account the subscriber base of the cable operator on the basis of the Subscriber Line Report (SLR) where such SLR exists. Where such SLR does not exist, this shall be negotiated on the basis of the evidence provided by the two parties on the subscriber base, including the subscriber base of similarly placed cable operators and local survey.

Explanation .-The Subscriber Line Report (SLR) is only an indicative basis for arriving at the subscriber base and the subscriber base as mutually agreed by the two parties could be more than or less than the number indicated by the SLR.

9.2First agreement between Multi System Operator and Broadcaster .-In non-addressable systems, while executing an interconnection agreement for the first time between a multi system operator and a broadcaster, the multi system operator shall furnish a list of the cable operators who will be getting signals from its network along with their subscriber base. The parties to the agreement shall take into account the subscriber base of cable operators connected to the multi system operator while negotiating the subscriber base of the multi system operator. For the consumers proposed to be directly served by the multi system operator, the procedure as laid down in sub-clause 9.1 of this regulation shall be followed.

10. Variation of Subscriber Base during validity of agreement .-10.1 Between Multi System Operator and Cable Operator .-In non-addressable systems, the subscriber base agreed upon by the parties at the time of execution of the interconnection agreement between a multi system operator and a cable operator shall remain fixed during the course of the agreement except in exceptional circumstances that warrant an increase or decrease in the subscriber base. In such an eventuality, it is for the service provider seeking a change in the subscriber base to provide reasons and accompanying evidence including local survey for the proposed change.

10.2Between Multi System Operator and Broadcaster .-In non-addressable systems, the subscriber base agreed upon by the parties at the time of execution of the interconnection agreement between a multi system operator and a broadcaster shall remain fixed during the course of the agreement except in exceptional circumstances that warrant an increase or decrease in the subscriber base. In such an eventuality, it is for the service provider seeking a change in the subscriber base to provide reasons and accompanying evidence including local survey for the proposed change:Provided that this sub-clause shall not apply to changes in the subscriber base of a multi system operator on account of any cable operator joining or leaving the multi system operator:Provided further that any change in the subscriber base of a multi system operator, which is the basis of payment to a broadcaster, on account of any cable operator joining or leaving the network of the multi system operator shall be equal to the subscriber base of the cable operator, joining or leaving the network.

11. Finalising Subscriber Base at the time of Renewal of agreement .-11.1 Between Multi System Operator and Cable Operator .-In non-addressable systems, negotiations on revision of subscriber base at the time of renewal of interconnection agreement between a multi system operator and a cable operator shall take into account the changes in subscriber base of the cable operator over the past three years, as well as the changes in subscriber base of other cable operators operating in the area in which the cable operator is operating and its adjoining areas for the current period.

11.2Between Multi System Operator and Broadcaster .-In non-addressable systems, negotiations on revision of subscriber base at the time of renewal of interconnection agreement between a multi system operator and a broadcaster shall take into account the changes in subscriber base of the multi system operator over the past three years, as well as the changes in subscriber base of other multi system operators operating in the area in which the multi system operator is operating and its adjoining areas for the current period.

12. Monthly Subscriber Base Statement .-12.1 In non-addressable systems, the multi system operators shall furnish the updated list of cable operators along with their subscriber base to the broadcasters on a monthly basis.

13. Reference Interconnect Offer .- [13.1 Reference Interconnect Offers for non-addressable systems .-All broadcasting shall submit within 90 days of issue of this Regulation, copies of their Reference Interconnect Offers (RIO) describing, inter alia , the technical and commercial conditions for interconnection for non-addressable systems to the Authority. The same shall be published by the broadcasters and a copy shall also be put up on their websites after the terms and conditions of the draft reference interconnect offer are submitted to the Authority. The reference interconnect offer so published by the broadcaster shall form the basis for all interconnection agreements to be executed thereafter.]

13.2A published reference interconnect offer may undergo any change only after prior intimation to the Authority. Interconnection agreements shall be entered into by all broadcasters based on the reference interconnect offers so published, provided, however, that by mutual agreement, the parties concerned may modify and/or add to the terms and conditions stipulated in the published reference interconnect offer for entering into an individualized agreement.

13. [2-A. Reference Interconnect Offers for direct to home service.] [Inserted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007). ]

13. [2-A.1 Every broadcaster, providing broadcasting services before the date of commencement of the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009) and continues to provide such services after such commencement shall, within thirty days from the date of such commencement, intimate to all the direct to home operators existing on that date and coming into existence within the said period of thirty days, its Reference Interconnect Offer specifying, inter alia , the technical and commercial terms and conditions for interconnection for the direct to home platform, including the terms and conditions listed in Schedule III to these regulations:

Provided that no broadcaster shall, directly or indirectly, compel any direct to home operator not to make available its direct to home service to any class of subscribers including commercial subscribers.Provided further that a broadcaster may have a different Reference Interconnect Offer for supply of signals by the direct to home operators-

(a)to the following categories of commercial subscribers, namely:-

(i)hotels with rating of three star and above;

(ii)heritage hotels (as described in the guidelines for classification of hotels issued by Department of Tourism, Government of India);

(iii)any other hotel, motel, inn, and such other commercial establishment providing board and lodging and having fifty or more rooms; and

(b)in respect of programmes of such broadcaster, shown on the occasion of a special event for common viewing, at any place registered under the Entertainment Tax Law and to which access is allowed on payment basis for a minimum of fifty persons.

Explanation .-For removal of doubts, it is clarified that the reference interconnect offer containing various terms and conditions including commercial terms, published by a broadcaster for provision of signals to ordinary subscribers shall apply to provision of signals to commercial subscribers not specified in the second proviso.] [ Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]

13.

2.

-A.2. Every broadcaster shall publish a copy of the Reference Interconnect Offer, referred to in sub-regulation 13.2-A.1, on its website:Provided that any broadcaster, who had intimated or published on its website, before the commencement of [the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009)] [Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009). ], any Reference Interconnect Offer, shall modify such Reference Interconnect Offer so as to be in conformity with the Reference Interconnect Offer referred to in Regulation 13.2-A.1 and publish the same as required under this sub-regulation.

13.

2.

-A.3. Every broadcaster, who beings to provide broadcasting services after the date of commencement of [the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009)] [ Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).] shall, within [thirty days] [Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009). ] of such commencement or before providing such services, whichever is later, intimate to all the direct to home operators existing on that date, its Reference Interconnect Offer specifying therein the technical and on that date, its Reference Interconnect Offer specifying therein the technical and commercial terms and conditions referred to in sub-regulation 13.2-A-1 and publish the same, before or simulataneously with such intimation, on its website.

13.

2.

-A.4. Every direct to home operator, who has been granted a licence after [thirty days] [Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009). ] from the date of commencement of [the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009)] [Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009). ], may request a broadcaster for being provided with a copy of Reference Interconnect Offer of such broadcaster and such broadcaster shall, within ten working days from the date of receipt of such a request, provide the same to the direct to home operator.

13.

2.

-A.5. Every broadcaster, who makes any modification to its Reference Interconnect Offer referred to in sub-regulation 13.2-A.1 or sub-regulation 13.2-A.3, shall, immediately after such modifications, intimate to all the direct to home operators such modifications so made to its Reference Interconnect Offer:Provided that all such modifications shall be published and exhibited on its website in the same manner as the Reference Interconnect Offer had been intimated to the direct to home operators and published on the website of the broadcasters.Agreements between the broadcasters and direct to home operators.

13.

2.

-A.6. (1) The Reference Interconnect Offer of a broadcaster referred to in Clause 13.2-A.1 or 13.2-A.3 or 13.2-A.5, as the case may be, and intimated to the direct to home operators and published by the broadcaster on its website shall be the basis for all interconnection agreements to be entered into between the broadcaster and direct to home operators:Provided that the broadcaster may enter, on non-discriminatory basis, into agreements with different direct to home operators modifying the Reference Interconnect Offer on such terms and conditions as may be agreed upon between them:Provided further that in case a broadcaster had entered, before the commencement of [the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009)] [Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009). ], into an agreement with any direct to home operator and publishes, subsequently, its Reference Interconnect Offer (including its modifications) under said regulations, such broadcaster shall, after publication of the said offer, give an option to such direct to home operator to either enter into an agreement in accordance with these regulations or continue with the agreement entered before such commencement till its validity.

(2)No broadcaster, who had, before the commencement of the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009), entered into an agreement with a direct to home operator and such direct to home operator has given an option under sub-regulation (1), to enter into an agreement with such broadcaster in accordance with the Reference Interconnect Offer published after such commencement, shall disconnect signals (except in accordance with these regulations or any other law for the time being in force) during the period beginning from the date on which such operator gave the option and ending on the date on which such agreement was entered in accordance with the Reference Interconnect Offer or the date of expiry of earlier agreement, whichever was earlier.

(3)No broadcaster, who had, before [the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009)] [Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009). ], entered into an agreement with a direct to home operator and such direct to home operator has given an option under sub-regulation (1), to continue with the agreement entered, before such commencement, with such broadcaster, shall disconnect signals of such operator (except in accordance with these regulations or any other law for the time being in force) during the validity of such agreement.Time limit for entering into agreements between the broadcasters and direct to home operators.

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-A.7. (1) Every broadcaster shall, within a period of forty-five days from the date of receipt of request from a direct to home operator for entering into interconnection agreement or for modification of an interconnection agreement already entered, shall enter into an agreement, or, modify such agreement already entered, with such direct to home operator, in accordance with the Reference Interconnect Offer published under these regulations.

(2)In case a broadcaster intimates any modification as referred to in Regulation 13.2-A.5, the agreement referred to in sub-regulation (1) shall be modified at the option of the direct to home operator, in the same manner as that of entering into of an agreement under sub-regulation (1).

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-A. 8. In case a broadcaster and the direct to home operator fail to enter into an interconnection agreement, then both of them may jointly, without prejudice to the provisions of section 14-A of the Act, at any time, request the Authority to facilitate in a process for entering into an interconnection agreement.

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-A.9. Nothing contained in Clause 13.2-A.8 shall be construed to take away any legal right conferred upon the broadcaster and the direct to home operator under any law for the time being in force and either of them may, at any time during the facilitation process, exercise such right conferred upon them under any law for the time being in force.

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-A.10. Nothing contained in Clause 13.2-A.8 or 13.2-A.9 shall apply to any matter or issue for which-

(a)any proceedings are pending before any Court or tribunal under the Act or any other law for the time being in force; or

(b)a decree, award or an order has already been passed by any competent Court or tribunal or Authority, as the case may be.

Compulsory offering of channels on a-la-carte basis.

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-A.11. It shall be mandatory on the part of the broadcasters to offer pay channels on a-la-carte basis to direct to home operators and such offering of channels on a-la-carte basis shall not prevent the broadcaster from offering such pay channels additionally in the form of bouquets:Provided that no broadcaster shall, directly or indirectly, compel any direct to home operator to offer [any channel or channels or bouquet] [ Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).] or bouguets offered by the broadcaster to such operator in any package or scheme being offered by such direct to home operator to its direct to home subscribers.

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-A.12. The rates for pay channels on a-la-carte basis and rates for bouquets shall be subject to the following conditions, namely:-

(a)The sum of the a-la-carte rates of the pay channels forming part of such a bouquet shall in no case exceed one and half times of the rate of that bouquet of which such pay channels are a part; and

(b)the a-la-carte rates of each pay channel, forming part of such a bouquet, shall in no case exceed three time the average rate of a pay channel of the bouquet of which such pay channel is a part and the average rate of a pay channel of the bouquet be calculated in the following manner, namely:-

If the bouquet rate is Rs. X' per month per subscriber and the number of pay channels is Y' in a bouquet, then the average pay channel rate of the bouquet shall be Rs. X' divided by number of pay channels Y'.

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-A.13. Every direct to home operator, who, after the commencement of the Telecommunication (Broadcasting and Cable Services) Interconnection (Fourth Amendment) Regulation, 2007 (9 of 2007), opts for one bouquet or more bouquets (hereafter referred to as the opted bouquet) offered by a broadcaster, may decide the packaging of the channels from such bouquet or bouquets which may be offered by it to its direct to home subscribers:Provided that in a case where a direct to home operator-

(a)does not offer such opted bouquet as a whole to its direct to home subscribers but offers to such subscriber only certain channels comprised in such opted bouquet; or

(b)packages the channels comprised in such opted bouquet in a manner resulting in different subscriber base for different channels comprising in such opted bouquet, then, the payment, to the broadcaster for such entire opted bouquet by the direct to home operator, shall be calculated on the basis of the subscriber base for the channel which has the highest subscriber base amongst the channels comprised in that bouquet.

13. [2-B. Reference Interconnect Offers for addressable systems other than direct to home service.

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-B.1 Every broadcaster, providing broadcasting services before the date of commencement of the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009) and continues to provide such services after such commencement shall, within thirty days from the date of such commencement, submit its Reference Interconnect Offer specifying, inter alia , the technical and commercial terms and conditions including those listed in Schedule III for interconnection with addressable systems other than-

(a)cable service in areas notified by the Central Government under sub-section (1) of section 4-A of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995);

(b)the direct to home service,-

to the Authority.

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-B.2 Every broadcaster, who begins to provide broadcasting services after the date of commencement the Telecommunication (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regulation, 2009 (4 of 2009) shall, within thirty days of such commencement or before providing such services, whichever is later, submit to the Authority, its Reference Interconnect Offer specifying therein the technical and commercial terms and conditions referred to in sub-regulation 13.2B.1 and publish the same, before or simultaneously with such intimation, on its website.

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-B.3 The provisions of regulations 13.2-A.1, 13.2-A.2, 13.2-A.4, 13.2-A.5, 13.2-A.6, 13.2-A.7, 13.2-A.8, 13.2-A.9, 13.2-A.10, 13.2-A.11, 13.2-A.12 and 13.2-A.13, relating to Reference Interconnect Offers for direct to home service, shall apply, mutatis mutandis , to such a Reference Interconnect Offer for interconnection with addressable systems other than cable service in areas notified by the Central Government under sub-section (1) of section 4-A of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995) and the direct to home service:Provided that a broadcaster may have different Reference Interconnect Offers for different types of addressable systems.

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-B.4 Any distributor of TV channels using an addressable system for distribution of TV channels seeking interconnection with a broadcaster in terms of the Reference Interconnect Offer referred to in regulation 13.2-B.1 or 13.2-B.2, as the case may be, shall ensure that the addressable system being used for distribution of TV channels satisfies the minimum specifications for addressable systems as specified in Schedule IV to these regulations:Provided that in cases where a broadcaster is of the opinion that the addressable system being used for distribution of TV channels does not satisfy the minimum specifications for addressable systems as specified in Schedule IV to these regulations, upon being informed of such opinion by the broadcaster, the distributor of TV channels shall get the addressable system audited by M/s. Broadcast Engineering Consultants India Ltd., or any other agency as may be notified by the Authority from time to time for the purpose of such audit and obtain a certificate to the effect that the addressable system being used for distribution of TV channels satisfies the minimum specifications for addressable systems as specified in Schedule IV to these regulations:Provided further that the finding of M/s. Broadcast Engineering Consultants India Ltd., or any other agency notified by the Authority in this regard, as the case may be, based on such audit as referred to in the first proviso, about the addressable system being used for distribution of TV channels satisfying or not satisfying the minimum specifications for addressable systems as specified in Schedule IV to these regulations, shall be final.] [ Substituted by TRAI, F.No. 3-21/2009-B&CS., dated 17.3.2009 (w.e.f. 17.3.2009).]

13. [3 In case the Authority is of the opinion that the Reference Interconnect Offer requires modifications so as to protect the interests of service providers or consumers of the broadcasting sector and cable sector, or to promote or ensure orderly growth of the broadcasting sector and cable sector or the Reference Interconnect Offer has not been prepared in accordance with the provision of these regulations, it may, after giving an opportunity of being heard to the concerned broadcaster, require the concerned broadcaster to modify the said offer and such broadcaster shall make such modifications and publish, within fifteen days of the receipt of requirement for the modifications, the said offer and such broadcaster shall make such modifications and publish, within fifteen days of the receipt of requirement for the modifications, the said offer after incorporating such modifications.] [ Substituted by TRAI, F.No. 4-54/2007-B&CS., dated 3.9.2007 (w.e.f. 1.12.2007).]

14. [ Explanatory Memorandum

.-5.1 Annex A to this order contains an Explanatory Memorandum for the issue of this regulation.]ANNEX AEXPLANATORY MEMORANDUM

1. The distribution of cable TV in India is characterised by a few dominant broadcasters and large multi-system operators (MSOs). Some of these players have become even stronger as vertical integration have taken place. Last mile operations on the other hand are highly fragmented and therefore there are large disparities in the bargaining power of various players of the distribution chain.

2. The vertical integration may improve efficiency as it reduces the transaction between upstream and downstream operations but at the same time vertically integrated companies may be able to use the vertical integration in certain circumstances to reduce competition. The anti-competitive behaviour could take the following forms:

(i)Vertical Price Squeeze may happen when a vertically integrated broadcaster increases the price of a TV channel for competing operators but maintains the same price for operator affiliates. The effect would be to reduce or squeeze the margins.

(ii)Exclusivity of the Content could be another form whereby popular TV channels can be denied to a competitor so as to promote the broadcaster's own distribution network.

(iii)Denial of carriage by a vertically integrated cable system of TV channel of the rival company.

Non-Discriminatory Access

3. In India, competition for delivery of TV channels is not only to be promoted within the Cable Industry but also from distributors of TV channels using other mediums likely direct to Home (DTH), Head Ends in the Sky, etc. It is important that all these distribution platforms are promoted so that they provide consumers with chose. It would be veryimportant that at this stage vertical integration does not impede competition. Vertically integrated broadcaster and distribution network operators would, in the absence of strong regulation, have the tendency to deny popular content to competing networks or to discriminate against them.

4. One method of checking these practices is to stop at the source any chance of anti-competitive behaviour by ruling that vertical integration will not be allowed. This route could, however, impede investments and in the long run adversely affect competition. The only DTH platform today has a degree of vertical integration. There is another pay DTH platform which is awaiting approval from the Government that also has a degree of vertical integration. DTH is the platform most likely to provide effective competition to cable operators. Restriction of vertical integration could therefore lead to a situation where the DTH rollout could be affected and hence competition. It is for this reason that the alternative route has been looked at; controlling anti-competitive behaviour wherever it manifests itself. These issues are dealt with in the following paragraphs.

5. Generally TV channels are provided to all carriers and platforms to increase viewership for the purpose of earning maximum subscription fee as well as advertisement revenue. However, according to some opinions, if all platforms carry the same content it will reduce competition and there will be no incentive to improve the content. Some degree of exclusivity is required to differentiate one platform from the other.

6. Exclusivity had not been a feature of India's fragmented cable television market. However, the rollout of DTH platform has brought the question of exclusivity and whether it is anti-competitive to the forefront. Star India Ltd. and SET Discovery Ltd. do not have commercial agreements to share their contents with ASC Enterprises on its DTH platform and at present are exclusively available on the Cable TV platform. ASC Enterprises claims that the future growth will remain impacted by the denial of these popular contents. Space TV a joint venture of Tatas and Star, is also planning to launch its digital DTH platform. It has applied for license to the Government for the same. The DTH services have to compete with Cable TV.. If a popular content is available on Cable TV and not on the DTH platform, then it would not be able to effectively give competition to the cable network.

7. The issue has to be seen primarily from the consumer's perspective. If all channels are not available on one DTH platform then the consumer may have to install more than one dish to view his favourite channels. If the content is not available on all platforms then they would not be treated as the same and would be presented as different products having different content. If content, especially popular content, is exclusively available on one DTH platform then there may not be effective competition. The consumers would also have limited choice as subscribing to one particular DTH platform may not ensure the availability of content of his/her choice.

8. The DTH platform would have to be seen as a carrier of TV channels and its vertical integration with the broadcaster cannot be the reason for content denial to the other distributors. The DTH platforms would have to compete on the strength of the quality of service, tariffs and packaging of the TV channels and not on the content.

9. DTH is quite clearly the most effective competitor for Cable TV today. It would be illogical for a consumer to establish two arrangements to view the differing content of two platforms when he has access to the entire content through cable. Moreover, if a popular content is available on the cable network and is not available on the DTH platform, it would never be able to give an effective alternative to the cable services. Competition between cable and DTH will be enhanced if all the content is available on both platforms. Similarly the cable industry should not be denied content that is available on DTH. Therefore, in the interest of consumers it is essential that all channels are available on all platforms on a non-discriminatory basis. This would promote competition amongst different platforms and thus would be beneficial for the consumers.

10. The Authority has also looked at international experience in this regard. In India, the problem is that broadcasters may not provide content to rival platforms and this could adversely affect competition in terms of price and quality of service. It is, therefore, necessary that there should be regulations in place that can be invoked if content is denied in, a manner that stifles competition. Thus, a general ban on exclusivity at this stage has been envisaged.

"Must Provide" through whom

11. There is high cost involved in the distribution of TV channels if the market is fragmented. To reduce the distribution costs broadcasters/multi system operators should be free to provide access in the manner they think is beneficial for them. The "must provide" of signals should be seen in the context that each operator shall have the right to obtain the signals on a non-distributor-is a decision to be taken by the broadcasters/multi-system operator. Thus, the Broadcaster/multi-system operator would have to ensure that the signals are provided either directly or through a particular designated agent/ distributor or any other intermediary.

12. In order to expedite the interconnection process the Authority has further provided that in case an agent does not respond to the request for providing signals within one month of the request, then the applicant would be free to approach broadcaster to obtain signals directly.

Quality of TV Channel Signals

13. Some cable operators had apprehended that in case TV channel signals are provided though cable and not directly then the quality of transmission could deteriorate and accordingly it was suggested that agents must provide services through IRDs. The Authority through this regulation has framed the principle of non-discriminatory access, which also includes non-discriminatory access in terms of quality of signals. Operators can seek relief it is found that the quality of their signals is being tampered with.Safeguards for Broadcasters

14. In this context it must be recognised that certain basic criteria must be fulfilled before a service provider can invoke this clause. Thus, the service provider should be one who does not have any past dues. Similarly provisions of protection against piracy must be provided. However, the content provider must establish clearly that there are reasonable basis for the denial of TV channel signals on the grounds of piracy.

Volume Discounting Schemes

15. An important aim of non-discriminatory conditions is to ensure that a vertically integrated supplier does not treat itself in a way that benefits itself, its subsidiaries or its partners and has material effect on competition. The broadcaster/multi-system operator must offer the required channels on terms that are no less favourable that those on which it provides equivalent services to its own affiliated operators.

16. Broadcasters and multi-system operators are also offering discounting schemes including volume or bulk discounts. Such discounts are not considered anti competitive if these are consistently available to similarly based distributors of TV channels. However, such discounts will be treated as anti competitive if provided on preferential basis to one or select group of operators. The Authority has identified three factors which may not be exhaustive relating to the subscriber base, technology of the distribution of TV channels and geographical region and neighbourhood.

Discrimination in providing TV Channel signals

17. In case any distributor of TV channel feels he/she has been discriminated on terms of getting TV signals compared to a similarly based distributor of TV channel, then a complaint must be filed with the broadcaster or multi-system operator, as the case may be. In case the complainant is not satisfied with the response, he/she may approach the appropriate forum for relief.

Disconnection of Signals

18. An important issue in the cable industry is the disconnection of signals to settle a dispute. Usually this means that without notice the signals by a broadcaster or multi-system operator are cut off leaving consumers in the lurch. This implies that the consumer who has not defaulted nevertheless has to bear the brunt of the dispute between the operators. It is, therefore, necessary to find some solution that will protect the consumers without compromising the ability of the broadcaster/multi-system operator to settle their dispute. It has, therefore, been decided to impose a restriction on the broadcaster/multi-system operator that they cannot cut off the signals without giving at least one month's notice. This would give some time for the affected parties to obtain relief. This notice should also be given through the newspapers so that consumers also have an opportunity to approach the necessary forum to ensure that their interests do not suffer on account of a dispute to which they have not contributed in any way. Broadcasters have suggested that this requirement of notice period should be exempted when disconnection occurs for piracy and copy right violation and violation of the non-financial terms and conditions of the interconnect agreement. In the case of unauthorised re-transmission of TV channels, it may be necessary for Broadcaster or Multi-System Operator to disconnect signals of TV channels without giving one month notice. In such cases the Authority has decided that after giving a notice for two working days, the signals may be disconnected.

Consultation on draft Regulations

19. The draft Regulation had been put on the website of TRAI and time was given to all stakeholders till 5th November, 2004 for comments on the drafts. A number of comments have been received and these have been carefully analysed. Since the number of comments is very large, and in some cases are in the form of modification to the draft, the gist of the comments have been briefly summarised, section by section in the Annexe to this Explanatory Memorandum and the response of TRAI for each of the comments has been set out. Wherever necessary, the draft has been modified in the light of the comments received. Some other changes have been made to make the regulation clear. Some issues have also been raised which are not relevant to the issue of these regulations-these are being separately examined.

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