The grounds on which broadcasters are opposing the regulation that limits the advertisement duration on television channels have no substance

One of the latest developments on the broadcast regulation front, and important from the viewer’s perspective, is the revised regulation on the limitation of advertisements on television channels to 12 minutes per clock hour.

In March 2012, the Telecom Regulatory Authority of India (TRAI) came up with a detailed consultation paper on “Issues related to advertisements in TV Channels.” Two months later, it notified the Standards of Quality of Service (Duration of Advertisements in Television Channels) Regulations, 2012 (15 of 2012). However, broadcasters challenged the TRAI regulation.

Revised regulation

TRAI then reconsidered the matter and, on March 22, 2013, notified a revised regulation called Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013. This amended regulation retained a key provision of the principal regulation, i.e., “no broadcaster shall, in its broadcast of a programme, carry advertisements exceeding twelve minutes in a clock hour. Explanation: The clock hour shall commence from 00.00 of the hour and end at 00.60 of that hour (example: 14.00 to 15.00 hours).”

The broadcasting fraternity, led by the News Broadcasters Association (NBA) and the Indian Broadcasting Foundation (IBF), has vehemently opposed TRAI’s move. Last week, the broadcasters met the Union Minister of State for Information and Broadcasting, Manish Tewari, to express their reservations. Mr. Tewari is reported to have said: “We have encouraged the finding of a modus vivendi whereby the imperatives of the consumer’s value for money as well as the imperatives of their revenue model can be balanced.”

The broadcasters’ main grounds of opposition are:

1) TRAI has no power to notify such regulations;

2) TRAI’s regulation is against the fundamental rights guaranteed under Article 19(1) (a) and (g) of the Constitution;

3) Advertising revenue is the lifeblood of the media and TRAI’s regulations were issued at a time when news channels are facing a most unfriendly business environment, non-receipt of advertisements from the Directorate of Advertising and Visual Publicity (DAVP) and the low level of digitisation in the country;

4) The regulations, if implemented, will force many news organisations to shut down. With the General Election looming ahead, it would appear that this is an attempt to muzzle the media by taking away its ability to operate independently.

Let us analyse the arguments:

Firstly, the Ministry of Communication and Information Technology vide Gazette Notification No. 39, dated January 9, 2004, notified the “Broadcasting Services and Cable Services to be Telecommunication Services.” The duration of advertisements carried during programmes on TV channels is closely related to the quality of viewing experience of consumers. The quality of viewing experience is akin to the “quality of service” provided by the service providers to consumers, which can very well be regulated by TRAI. This clearly shows that TRAI has the necessary powers to regulate the duration of advertisements on TV channels. Perhaps, this is the reason why the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) also allowed TRAI to have a second look into the matter and did not strike down the latter’s original regulation.

Second, and most important, the cap on advertisement duration to 12 minutes per hour is already a part of an existing Advertisement Code, i.e., Rule 7(11) of the Cable Network Regulation Rules, 1994. It reads: “no programme shall carry advertisements exceeding 12 minutes per hour, which may include up to 10 minutes per hour of commercial advertisements, and up to 2 minutes per hour of a channel’s self-promotional programmes.” TRAI’s revised regulation doesn’t disturb this existing statutory position and only adds that “hour” means “clock hour” and proposes to enforce the said rule.

It is indeed surprising to see the response of the broadcasters that TRAI’s regulation will affect their business/revenue models. The “10+2” rule has been in force for many years, so it is strange that it has not already been factored into the revenue models of broadcasters. If the rule was affecting their rights, why did they not challenge it in court all this time? The TRAI regulation is being opposed because it means the existing statutory stipulation will now be implemented systematically. Before this, despite many complaints by viewers, the I&B ministry played the role of a spectator, never taking any penal action against erring broadcasters who blatantly violated the “10+2” rule. But how could media houses presume forever, the Ministry’s “continued inaction” against their violations?

Further, while the broadcasters are talking about “control” of their freedom of expression, is indiscriminate advertising to the extent of 35 per cent of prime time (even in pay channels) not a violation of the basic rights of viewers, aside from being a statutory violation under existing laws?

Third, the factors quoted by broadcasters’ associations such as economic slowdown, unfriendly business environment, non-receipt of advertisements from DAVP, low level of digitisation in the country, etc., may be reasons affecting broadcasters’ revenues but they can’t, by any stretch of imagination, be cited as justification for indiscriminate and limitless advertising by TV channels in the name of freedom of expression and freedom to carry on trade or business.

A study conducted by the Centre for Media Studies (CMS) on the duration of advertisements in six major news channels over the last four years found that on an average, around 35 per cent of the prime time (7 p.m. to 11p.m.) of news broadcasters is just advertisements, against the per hour limit of 20 per cent prescribed in the existing rules. The maximum yearly average was found to be as high as 47.4 per cent.

Global codes

Lastly, almost all countries with a free media have codes in place to regulate the duration and scheduling of television advertisements. For example, the Audiovisual Media Services (AVMS) Directive of the European Union which sets the limit of advertising for all channels to be 12 minutes per hour, establishes the need to “protect the interests of consumers as television viewers, particularly by ensuring they are not exposed to excessive amounts of advertising which is also detrimental to the viewing experience.” But these international best practices are conveniently ignored by the broadcasters in their arguments. Media houses going to the extent of painting this viewer-friendly regulation by TRAI as the government’s attempt “to muzzle the media” in view of the upcoming election is a deliberate effort to obfuscate the debate.

TRAI has in fact dropped many other key provisions that were a part of the original regulation such as prohibition of part-screen advertisements during programmes and the audio level of advertisements not to be higher than the audio level of programmes. (These are other violations of the code relating to advertisements on TV, presently going on unchecked.)

If broadcasters feel they have a genuine case — that the present statutory cap on advertisement duration is impacting their interests adversely — they can pressure the government (not TRAI) to amend the extant Rule 7(11) of Cable Network Regulation Rules, 1995 so as to increase the present cap of 12 minutes further, say, to 15 minutes. Instead, the broadcasting fraternity’s blanket opposition to the TRAI regulation, based purely on business considerations, is unwarranted. It not only shows its disregard for the relevant legal provisions presently in force but also its disrespect for the due rights of millions of TV viewers in the country.

(Edara Gopi Chand is vice-president, MediaWatch-India, a civil society initiative to promote decency and accountability in the media — www.mediawatchindia.org. Email: mediawatchindia123@gmail.com )