Swaraj Samiti, a consumer organization based in Rajkot, Gujarat has sent a memorandum to the sector regulator TRAI requesting for continuation of analogue cable systems along with digital cable as the law for mandatory digitization as given in Sec. 4A (Substituted by Act 21 of 2011) of The Cable Television Networks (Regulation) Act, 1995 (7 of 1995) is inconsistent with
1.the Rule 3 of The Radio, Television and Video Cassette Recorder Sets (Exemption from Licensing Requirements) Rules, 1997 and
2. with the Statement of Objects & Reason enshrined at the time of enactment of the 1995 Act.
The organization has therefore request to withdraw the compulsory digitalization policy or liberalise the same by keeping the option of analogue mode and to create necessary national awareness regarding the same.
Distinction between 'Pay' Channel and FTA removed
The Samiti has drawn Regulator's attention towards the salient provisions of the Radio, Television and Video Cassette Recorder Sets (Exemption From Licensing Requirements) Rules, 1997 wherein Rule 3 of the said Rules states that no viewer or user of Television Set requires to obtain any license from any authority. However, inspite of the above Rules of 1997 being in force, sub section 1 of section 4A of The Act has been substituted w.e.f. 25.10.2011 by Act 21 of 2011 wherein the words “any pay channel” have been substituted by the words “any channel”.
The Samiti alleges that because of this retrospective amendment, it seems that whole purpose is to create intentional unnecessary confusion and force the subscribers to purchase set top boxes and get them installed thereby, indirectly making the obtaining of a kind of license compulsory in form of Set top box.
Further, if a subscriber viewer does not purchase and install a set top box then as per the Notification of compulsory digitalization, the broadcasting would get stopped which is also wholly inconsistent with the Statement of Objects & Reasons enshrined at the time of enactment of the 1995 Act.
As per digitalization policy to be implemented in four phases across the country, if set top boxes are compulsorily installed then, in contrast to current capacity of 90 channels in analogue mode, there shall be capacity of nearly 1000 channels in digital mode. It is well known that thousands of national and international programmes are available on air. Therefore, if all those thousands of programmes start becoming available in all the houses across India, then the effect of cultural invasion would be multi times then that feared earlier.
Not only that but economic and financial interests of certain foreign broadcasters would also be benefitted and may also lead to economic exploitation of a large section of society. It is well known that the present controlling authority does not have any infrastructure to prevent or control the same, therefore, one fails to understand as to how the undesirable programmes and advertisements would be censored.
As per the digitalization policy, as far as digital viewing or programmes and availability of vast pool of information and entertainment is concerned, nothing of such sort can be made mandatory.
Taxes can be Recovered without the use of STBs
Entertainment Tax is a State subject and therefore, for proper and effective recovery of such taxes if the law mandates compulsory installation of set top boxes, then such a step would lead to slavery of people of India. Even without set top boxes, respective State Governments can introduce various plans and programmes for effective recovery of taxes.
Hon'ble Supreme Court in a recent judgment in the case of Tata Sky Ltd. v/s State of Madhya Pradesh & Ors. reported in (2013) 60 VST 1(SC) has held that Direct To Home Broadcasting cannot be subjected to Entertainment Tax. It was further held that entertainment taking place in specified locations to which persons admitted on payment alone is taxable. It is needless to say that the above argument shall also be applicable to services provided by local cable operators. Therefore, the issues concerning revenues due to the State government do not arise and consequently there is no need to gather data on actual number of viewers.
Measuring Viewership is Broadcasters' Responsibility
On a conjoint reading of all the provisions of the 1995 Act as well as other related issues and judgments on the subject, it seems that Cable Television Regulations and number of actual viewers have nothing to do with each other., The present authority currently has no infrastructure or any other set up for cable television regulations. Compulsory installation of set top boxes by viewers on payment of a price would mean creation of a path of self exploitations. The present digitalization policy is intended for benefit only a few (nearly twelve) broadcasters lying at the top in the cable transmission structure.
As a matter of fact, the cost and concerns for measuring cable services should be left with broadcasters and not with viewers. This digitalization policy would also lead to complete erosion of local cable operators who though lying at the bottom of the structure have always played a very important role since inception of cable television in India. Thus, looking from all the angles, the amendment made in Sec. 4A of The 1995 Act is the most important piece of evidence of corruption behind the amendment which has been made without any objects and reasons and further in complete contrast to objects and reasons behind the enactment of the original Act.
In view of the above the digitalization policy needs to be cancelled, keeping the option of analogue mode open and needs a public clarification. Lastly, clause 2 of Amendment Act 2 of 2003 Statement of Objects and Reasons wherein the primary objective of the Government is to ensure that every subscriber receives at least a minimum number of free-to-air channels at a reasonable cost. The current digitalization policy totally dilutes the aforesaid objective. Further, as per clause 3 installation of addressable systems is required only for viewing pay channels and not for free-to-air channels. Therefore, again the question as regards clarity of the fact as to whether the analogue mode of viewing is still open or not, especially for fee-to-air channels?
First two Phases are a Failure
The Samiti has provided statistics in relation to implementation of digitalization in Phase 1to vindicate its point. It has expressed a complete failure and ineffective implementation of the said policy in phase 1. In addition, there has been no implementation of any of the salient provisions of The Consumers Complaint Redressal. (Digital Addressable Cable TV Systems) Regulations, 2012.
There is nothing as how to regulate effectively the sale or distribution of set top boxes. MSOs and local cable operators are misguiding the subscribers by asking them to sign the forms with small fonts in English language without creating necessary awareness amongst the consumers. No bill is being issued to subscribers in consideration of price paid for purchase of set top boxes. When inquired for bills, they intimate that the amount collected is towards security deposit for five years. However, no receipt towards the said deposit is being awarded to the consumers. Therefore, the moot question is that whether the deposit collected in this fashion will ever be refunded? In our considered opinion, this deposit will be eaten away.
China made set top boxes of low quality and high prices are being sold in the market. Further such set top boxes do not confirm to the India Standards as set by the Bureau of India Standards. The sum total of all the above facts leads to only one presumption that the digitalization policy has opened a new market of looting the subscribers of cable television. There has been massive loot in the entire country by all the connected beneficiaries of the digitalization policy. As far as the set top boxes are concerned, it is just a tip of ice berg and a visible loot. However, the volume of the ice berg inside the ocean is beyond description and outside the knowledge of a common man. One cannot also quantify and describe the amount of invisible loot that may be caused by national as well as foreign broadcasters connected with the said business.
Instead of doing it's duty of regulating broadcasters, the authority is regulating subscribers and thus, has opened doors of houses of a common man for broadcasters to loot them in the name of the digitalisation policy.
Lastly the Samiti states that Indian culture has always been Tyaag Pradhan. Western culture has always remained Bhog Pradhan. It seems that clever amendment made in Sec. 4 A of the 1995 Act is going to invade the Indian tyaag culture and forcefully divert them to Western Bhog culture, which is totally inconsistent with the fears and serious concerns stated of Objects & Reasons enshrined at the time of enactment of the 1995 Act. Therefore, the compulsory digital mode of cable subscription increases slavery of citizens of India and it is just like colonial foreign rule. Democracy has no role to play in the same.
The Socity plans to take requisite legal actions including filling a Public Interest Litigation (PIL) before the Jurisdictional High Court or the Supreme Court of India if the policy is not changed.