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Should TRAI identify significant market power in TV industry?
MUMBAI: Broadcasters have submitted to the Telecom Regulatory Authority of India (TRAI) that there is no need to identify significant market power (SMP) as the Indian broadcasting industry has enough competition at the broadcaster as well as the distribution platform operator (DPO) level.
On the other hand, direct-to-home (DTH) operators who are not aligned to any broadcasters have urged TRAI to identify SMP as the pay TV market is dominated by five broadcasters—Star India, ZEEL, Sun TV Network, Sony Pictures Networks India and Viacom18.
The multi-system operators (MSOs) have taken a stance that there is no need to identify SMP if their suggestion of adopting a model of distribution network tariff is adopted by TRAI.
“If the suggestions made above for distribution network model are accepted, it would be a new direction for the entire industry and, hence, the impact of the same may first be analysed before attempting to identify significant market power,” the All India Digital Cable Federation (AIDCF), the apex body of digital cable TV operators, said in its submission.
“We are hopeful that in the new regime, the unequal bargaining power enjoyed by the major pay channel broadcasters will be reduced and will give rise to a level playing field with respect to the MSOs,” it stated.
TRAI in its consultation paper ‘Tariff issues related to TV services’ had noted that SMPs have the potential to adversely influence the value chain. Therefore, it needs to be determined whether there should be a differential regulatory framework for such powers.
On the broadcasting side, it noted that there are 51 pay broadcasters with 262 pay channels, but nearly half of the pay channels belong to the top five broadcasters. SMPs, it said, have also influenced DPOs who have started demanding carriage fee and placement fee to carry broadcasters’ channels due to limited carriage capacity in analogue networks.
Such practices continue in the digital networks in spite of a substantial increase in the network carriage capacity, it noted.
Broadcaster Star India said that there is no need to identify the so-called SMP since the market is highly competitive.
Existing regulatory framework acts as sufficient safeguard to prevent distortions in access and price, and there is a balance between DPO and broadcaster, as the latter offers discounts and carriage fees to the former.
ZEEL also submitted that there is absolutely no need to identify SMP since the existing regulatory framework of TRAI, which is based on the premise of non-discrimination and transparency, already provides for the formulations to offset any abuse/anti-competitive behaviour of any entity, viz. broadcasters and/or distribution platforms.
It also said that the proposed tariff formulations on implementation would further address all the concerns regarding non-discrimination, transparency, reasonable pricing, meaningful a la carte choice both at the wholesale and the retail level.
Star and ZEEL noted that TRAI’s findings in its recommendations on cable monopoly clearly reiterate that market power actually rests with operators.
Sony Pictures Networks India said that there is no need for identifying SMP as no broadcaster or DPO can be called a market power.
It also said that the current regulatory regime in the form of Competition Act is working well. If TRAI attempts to create another definition or system parallel to the one provided under the Competition Act, it would lead to an anomaly, resulting in different interpretative precedents. This will create more chaos and confusion in the market, it added.
Viacom18 and Sun TV Network are of the view of that TRAI must not deal with issues relating to SMP since it is the domain of the Competition Commission of India (CCI). They also said that if the TDSAT does not have jurisdiction to adjudicate, TRAI obviously cannot frame regulations in relation thereto.
DTH operator Airtel Digital TV said that practically every broadcaster holds SMP since both the content and the TV channel of a broadcaster are unique and cannot be substituted with other content/TV channel. It noted that the top five broadcasters offer 191 TV channels and control almost 80% of TRP as per BARC data.
“It shows that the TV market is highly concentrated and controlled by a few broadcasters as against a high number of DPOs. Furthermore, many broadcasters also hold a DPO licence, i.e. DTH, MSO and therefore, there are genuine concerns of monopolisation and vertical integration,” the DTH operator said.
As a protective measure, the wholesale price of TV channel should be regulated and fixed on the basis of a cost-based model. This will ensure that no broadcaster is able to distort the market in any manner. It further stated that additional regulatory provisions should be placed on broadcasters holding significant market share (either assuming a number of channels or based on TRP) as well as vertically integrated (holding a valid DPO licence) based on international best practices and TRAI’s earlier recommendations.
Applauding TRAI for flagging the issue in the consultation paper, Dish TV said that TRAI has rightly observed that the identification of such power at the DPO level is easier than at the broadcaster level. This reflects the urgency of determining such power at the broadcaster level, since the DPOs having declared their subscriber numbers are fairly transparent.
“On the contrary, the content being already monopolistic and exclusive to a particular broadcaster, the opportunity for such broadcaster to distort the market is considerably high,” it stated.
Videocon d2h submitted that SMP should be identified and brought under a regulatory framework. It has suggested strong regulatory safeguards of such powers.
In particular, it has submitted that the deals between broadcasters and DPOs should be monitored to see if vertically integrated DPOs are getting sweet deals.
Tata Sky said that there is enough competition among broadcasters and DPOs to warrant such a move by TRAI.
“In fact, due to the hyper competition that is playing out in the market place today, consumers have access to diversified content at the best possible prices. Further, there are sufficient laws that already provide safeguards against monopolies,” it submitted.
Sun Direct has said that there is no need to identify SMPs since the cost-based or regulated RIO models will ensure that any monopolistic behaviour is brought under check.
Siti Cable said that there is no need at this stage to identify SMP for DPOs. There is also no need for differential regulatory framework for the SMP.
Asianet Satellite Communications, the dominant MSO in Kerala, had submitted that there is no need to identify SMP as long as the power is not misused. “In a competitive market with several broadcasters and DPOs, the subscriber decides his choice and if there is a market leader in the segment, it would be based on service vs price combination,” it stated.
IndusInd Media & Communications Ltd (IMCL) said that SMP should be considered for both DPO and broadcaster. For broadcasters, it should be based on the language/region and BARC ratings, and on the total number of customers keeping the channel active/subscribing. For DPOs, it should be based on the market share of the total pay TV homes, which can be considered for an entire district level only. For larger districts, urban and rural differentiation may be considered, it stated.
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