Monday, 21 July 2008

RIGHT OF WAY DEMANDED BY MSO’s and Cable Operators

The Ministry of Information and Broadcasting has constituted a Sub-Commitee for rationalization of ‘Right of Way’ charges for the Cable Television Industry. First meeting of the sub-commiteehaving representation from all the stake holders was held in the Ministry on 11 June 2008 under the Chairmanship of Sh. Uday Kumar Verma, Add Secy., Ministry of I&B Since 1990 yet it dose not have a clearcut defined right of way regulation for laying its networks. Every State government, Municipal Authority and the Electricity Board has its own way of charging the Cable Operators for using electric poles or laying underground cables. The rates vary tremendously from state to state. This cost if ultimately passed on to the consumers.
We all know that cable TV has become an essential service in the country, being a mass media for information and entertainment of the masses including the ones staying in rural and remote areas. Infact cable TV in the last fifteen years has changed the whole economy of the country.

Hon'ble TDSAT in its judgment dated 27/02/2007 in case of Set Discovery Vs. TRAI & others had observed that:
"Cable broadcasting may not be an essential commodity in the sense that it is not an item of food without which one cannot survive, yet looking to the figures of TV viewer ship in this country its importance cannot be underestimated. Available figures suggest a TV viewer ship of 68 million for the whole country. This shows that television viewing has almost attained the status of an essential service in this country.”
Hence it is very important to give the Industry a right of way to play its networks which would ultimately carry the broadband signals of the future.

Some Important Considerations
Distinction between information technology (IT), broadcasting, telecommunication & multi-media services is dis-appearing very fast because of convergence.
Major driver of convergence is digital technology.
"Cable broadcasting may not be an essential commodity in the sense that it is not an item of food without which one cannot survive, yet looking to the figures of TV viewer ship in this country its importance cannot be underestimated. Available figures suggest a TV viewer ship of 68 million for the whole country”
Digitalisation of cable results in capacity augmentation, provision of various value added services, triple play (voice, video, data), transparency and better tax compliance.
Digitalisation of cable requires laying down of extensive optical fibre infrastructures.
Vide notification no. S.O. 44(E) dated 9.1.04 issued by Ministry of Communication & Information Technology (Department of Telecommunications), the Central Government has notified 'Broadcasting Services and Cable Services' to be Telecommunication Service' under TRAI Act, 1997.
Cable TV service providers are also entitled for "right of way" as infrastructure providers as is available to telecom/inter net service providers as cable services are also covered under Indian Telegraph Act, 1885.
Cable Services are covered under the provisions of Indian Telegraph Act. The attention in this regard is invited to the judgment of Hon'ble High Court of Rajasthan in Shiv Cable TV System Vs The State of Rajasthan & ors. - AIR 1993 RAJ 197 wherein the Hon'ble High Court inter alia held:
"The disc antenna as well as the cable network installed by the petitioners, therefore (both) require licence under the Indian Telegraph Act read with Indian Wireless Telegraphy Act, 1933. The transmission of prerecorded cassette trough cable network also requires licence under these Act.”
It is for this reason, the registration of Cable Operators is granted by Postal Authority.

TRAI recommendations of 14 September 2OO5: Right of Way
The cost of digital cable services per user can be substantially brought down in case service from a digital head end is supplied to a larger area through optical fibre cable network. The right of way is not available to MSOs/ Cable Operators as they are not licensed under Section 4 of the ITA. In the absence of this right it may not be always possible for a MSO/cable operator to lay their optical fibre network and may have to depend on telecom operators for lease of their optical fibre network. This in many cases may not be beneficial when compared to having own infrastructure. It is therefore imperative that such rights are available to licensees of digital cable systems. On the lines of the provisions contained in the Convergence Bill, 2001 the following can be considered for incorporation in the 'The Cable Television Networks (Regulation) Act, 1995. The salient provisions are:
i) Any licensee may from time to time lay, and establish cables and erect posts under, over, along, across, in or upon any under the control or immovable property vested in or management of a public authority.
ii) Any public authority under whose control or management, any immovable property is vested shall, on receipt of a request from a facility provider permit the facility provider to do all or any of the following acts namely:
(a) to place and maintain underground cables or posts
(b) to enter on the property from time to time, in order to place, examine, repair, alter or remove such cables or posts.
iii) The permission mentioned in (ii) above shall be promptly given and shall not be unreasonably withheld or denied. In case of an emergency the facility provider may at any time for the purpose of examining, repairing altering or removing any cable or post enter upon the property for that purpose without first obtaining such permission.
(iv) Nothing in this section shall confer any right upon any licensee other than that of user for the purpose only of laying underground cables or erecting posts or maintaining them.
v) The facility of right of way for laying underground cables, and erecting posts, shall be available to all licensees without discrimination and subject to the obligation of reinstatement or restoration of the property or payment of reinstatement or restoration charges in respect thereof at the option of the public authority.
vi) Where any shifting or alteration in position of the underground cable or post is required due to compulsive causes like widening -of highways and construction of flyovers or bridges, the said licensee provider shall shift or alter the same at his own cost within the period indicated by concerned authorities.

Various Authories Involved
• For laying overhead cable/fibre (poles, buildings, etc.)
• Local Municipal Authorities, Electricity Boards, Electricity Distribution Companies, Telephone Poles owned by MTNL & BSNL, other utility poles, other local bodies owning infrastructure.

For laying underground cable /fibre
• Local Municipal Authorities, public works departments (PWD), Local Urban Development Authority (such as DDA), Gram Panchayat & Railway, other local bodies, National Highway Authority. 

Various Authories
At present rules regardimng right of way existing in some of the states are as given below:-
• The Uttar Pradesh Public Land (Permission For Placing And Maintaining Optical Fibre Cable) Act, 2001 and Rules made thereunder;
• ROW Policy notified in the year 2000 of for laying of communication backbone in Haryana;
• Order dt. 14.8.2000 issued by Chief Secretary of Punjab on "Information Technology - Promotion of Telecommunication Infrastructure, by Laying of Optical Fibre Cables along the State Properties Guidelines”
• Right of way policy dated 26.4.2002 of Govt of Himachal Pradesh.
• GO. ms.No.10 dt. 4.5.2000 issued by Information Technology Department, State of Tamil Nadu on "Guidelines for Grant of Permission to Private and Public Sector Organizations for use of Public Right of way for laying Optic Fiber Cables in Tamil Nadu "
however all the above guidelines/notifications are in respect of grant of right of way to telecommunication /ISP licensees. An IPTV operator delivering the same content as a cable service provider, is eligible for ROW, however a cable service provider is not.

Issues Involved
For laying underground cable/fibre
* Multiple authorities
*Lack of uniform rates across the States
*Cable service providers are not included as eligible for
grant of right of way

For laying overhead cable/fibre
*No policy/guideline for grant of permission
*Permissions are granted on ad hoc basis at arbitrary &
exorbitant rates.
*At times the permissions are refused also as there is no
obligation to grant permission in the absence of any policy.
*Rates varys from State to State and even authority to
authority in a State.
*In the absence of any well defined policy local bodies
some times restrict competition & promote monopoly by
permitting only one cable service provider per pole - e.g.
*Certain local bodies follow Bidding mode for allocation
of poles to highest bidder thereby eliminating the usages
by Other service providers - e.g. Hyderabad, Noida.

The Disparity In the Costs can Be Judged from the Following:-
Municipal Corporation / Electricity Companies/Boards
• Vizag — Rs.3OO/- per year per pole;
• Chennai - Rs.365/- per year per pole;
• Punjab - Rs. 110/-per year per pole;
• Kerala (Thrissur) Re.I/- and Rs.50 per k.m.
• Kerala (Thiruvananthapuram) Re.I/- and Rs.50 per k.m.
• Bangalore - Rs.50/- per coaxial cable per pole per year.
• Delhi - demanded Rs. 1,569 but settled at Rs.801/- per pole p.a. as against Rs.500 recommended by Secretary Power.
• Haryana - 
• (i)permission charges for Installation of dish antenna Rs.5000/- p.a. plus Rs.3750/- p.a. as fee, and 
• (ii) Rs.20/- per consumer connection p.m.
• Kolkata - 
(i) Calcutta Municipal Corporation -Rs. 2.0 Lakhs per area p.a.
(ii) Bidhannagar Municipality -Rs.490/- per pole for 3 years.

Important points that emerge from the above are that-
• Cable Services being "essential services", grant of right of way should not be construed as a source of revenue by the local authorities.
• These poles have been erected on public land and as such are "public infrastructure" to be utilised for the benefit of public at large.
• The charges add to the cost of transmission and can not be passed on to the consumers as the rates for cable services are highly regulated & in fact have been frozen in both CAS & non-CAS areas by Telecom Regulatory Authority of India.
• On each pole, about 4-5 cable service providers have laid their cable/optical fibres. The companies have rejected the proposal to divide charges equally among all the Cable TV operators.

Some Immediate Solutions
• Inclusion of cable services as eligible services for grant of right of way by including them in various rules/policy guidelines/notifications issued by State Govts as cable services are also covered under Indian Telegraph Act. A notification in this regard can be issued by I&B Ministry.
• Grant of ROW permission to cable service providers at nominal charges treating them as "essential public utility services"
• Constitution of empowerment committees for ROW Single window clearance for grant of ROW permissions Uniformity in rates across various States
• Formulation of uniform ROW policy for overhead cables/fibres by the State Govts.
• Grant of permission to all eligible cable service provider without any restriction & discrimination so as to promote competition.
The issue has become very important as the cable television industry is moving towards digitalization and is competing with new digital technologies like DTH, IPTV, and mobile TV where quality is the USP. In such a scenario a good quality infrastructure is very important. Moreover, since government is serious about regulating the industry now, it will implement the BIS standards of Cable TV service which can not be achieved until the network infrastructure improves.


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