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Business News/ Opinion / Views/  OTT Platforms – Must Provide-Must Carry
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OTT Platforms – Must Provide-Must Carry

OTTs by virtue of restricting the content to some platforms are controlling the accessibility of the content to only some consumers. This discrimination is violative of the principle of ‘Must Provide – Must Carry’

In January 2019, about 15 OTT Platforms like Netflix, Amazon, etc. entered into a self-regulation code, namely, ‘Code of Best Practices for Online Curated Content Providers’ (Photo: iStock)Premium
In January 2019, about 15 OTT Platforms like Netflix, Amazon, etc. entered into a self-regulation code, namely, ‘Code of Best Practices for Online Curated Content Providers’ (Photo: iStock)

Considering the importance of Broadcasting, India has created an enabling and well-thought-out regulatory framework that ensured that all broadcasting content is available to consumers without discrimination through every distribution platform operator. The framework was built on sound regulatory principles such as customer choice, transparency, and non-discrimination, which ensured non-exclusivity for all stakeholders and worked exceptionally well till date.

The onset of the covid-19 pandemic across the world has compelled the advancement of technology for the current digital age. Every industry is undergoing a technological advancement from the way they traditionally operated. The entertainment industry has also witnessed change in relation to its consumer base, mode of delivery, et al. There is a parallel and fundamental shift that has happened in content broadcast, accelerated due to convergence of distribution platform on wireless and wireline broadband. Today content consumption is happening over interfaces other than traditional television. Accordingly, the need of the hour is for the regulatory authority to catch up with the growing pace of the entertainment industry, to bring within its ambit novel platforms, commonly known as Over-The-Top (OTT) platforms, that deliver content to consumers in India.

At present, in order to curb exploitation, certain basic laws such as Information Technology Act 2000, Indian Penal Code 1861, and Indecent Representation of Women (Prohibition) Act 1986 have been made applicable to the content generated on OTT Platforms. However, OTT Platforms are not governed by all the regulations that govern a traditional Distribution Platform Operator (“DPO’"). In January, 2019, about 15 OTT Platforms like Netflix, Amazon, etc. entered into a self-regulation code, namely, ‘Code of Best Practices for Online Curated Content Providers’ (“Code") which was designed by the companies carrying on the business in consultation with the Internet and Mobile Association of India. Significantly, the self-developed Code will not and cannot compel the OTT Platforms to comply with standards that are required for an orderly growth of the entertainment industry.

The traditional content delivery platforms known as DPOs, i.e., DTH Operators, Multi System Operator, Headend-In-The-Sky and Internet Protocol Television are regulated by Telecom Regulatory Authority of India (“TRAI"). Further, DPOs provide services under a license from Ministry of Information and Broadcasting. However, the OTT Platforms which are a manifestation of the technological advancement, mostly function in the grey area of law. They circumvent traditional methods of broadcasting audio-video content to consumers and do not include carrier service providers. Therefore, despite providing the same services as DPOs, the OTT platforms which broadcast content on wireless and wireline broadband, have escaped the regulatory framework.

Further, OTT Platforms pose a serious challenge to the viability of the traditional DPOs. Today, the consumer has the freedom to watch any content including linear content, live broadcast, and all other global content on the OTT Planforms. To ensure that similar content is available to all conusmers on a non-discriminatory basis, there is a need to define a uniform framework applicable to both DPOs and OTT Platforms to effectively ensure that customers have access to content on the platforms they want to choose.

The fundamental principle and objective behind any regulatory framework is to create a non-discriminatory, level playing field based competitive environment, where all the players have equal opportunity to compete and grow, thereby resulting in the sector’s overall growth. Accordingly, the TRAI regulatory framework rests on principles such as Must Provide – Must Carry, Consumer Choice, Transparency, etc. Under the “Must Provide – Must Carry" principle, all broadcasters are mandated to provide their TV channels to every DPO. This obligation prevents the broadcasters from discriminating amongst DPOs. However, the non-application of the regulatory framework of TRAI to OTT Platforms, has resulted in skewed policy regime which has impacted the competitive landscape and opened the industry to risks such as exclusionary and discriminatory practices, thereby directly impacting the consumers who may not be able to access same broadcast content on their choice of delivery platform.

The situation has been worsened by the presence of vertically integrated broadcasters, who also own distribution digital platforms, creating a conflict of interest and incentivizing the broadcasters to not provide TV channels or other content, to standalone digital platforms. In fact, the parent companies of most prominent digital platforms are broadcasters themselves and favour their own digital platform by providing content on a discriminatory basis. Further, in some cases, content developers are reluctant to offer their content to more than one digital platform, on account of contractual obligations or commercial reasons.

Hence, the OTTs by virtue of restricting the content to some platforms are controlling the accessibility of the content to only some consumers. This discrimination is violative of the principle of “Must Provide – Must Carry" which forms the backbone of the TRAI Regulatory framework.

There is, therefore, an urgent need for amendment in the current regulatory framework to ensure applicability of the fundamental principle such as “Must Provide – Must Carry" across all modes of delivery for broadcast content across all platforms irrespective of underlying technology used for or mode of delivery including but not limited to wireline, wireless, internet, satellite and/or cable etc. and no one should be permitted to block any delivery platform’s access to content in the value chain. This will ensure transparency and a level playing field and provide an equitable access of content to all consumers on all the platforms/mediums.

(Shally Bhasin is partner, Shardul Amarchand Mangaldas & Co, and Prateek Gupta is senior associate, Shardul Amarchand Mangaldas & Co. Views expressed are personal.)

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Published: 09 Sep 2022, 09:10 AM IST
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