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Media carriage and media ownership (vertical integration)

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Curator: Manish, Research Fellow, Centre for Communication Governance at National Law University, Delhi

Contributor: Arun Mal, National University of Juridical Sciences

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Primary sources

Legislative and regulatory material

Sections 4, 4A, 4B and 5, Cable Television Networks (Regulation) Act, 1995

These sections provide for the registration and regulation of cable operators, transmission of programmes through digital addressable sections and the procedure therefor.

Cable Television Networks Rules, 1994

Telecom Regulatory Authority of India, Interconnection Regulations (as amended till date)

Ministry of Information and Broadcasting, Uplinking/Downlinking Guidelines (as amended till date)

Telecom Regulatory Authority of India, Consultation Paper on Issues relating to Media Ownership (2013)

Telecom Regulatory Authority of India, Consultation Paper on Monopoly/Market Dominance on Cable TV Services (2013)

Canadian Radio-Television and Communications commission, Regulatory Framework relating to Vertical Integration (2011)

This document sets out the decision of the Canadian Radio-television and communications commission on its regulatory framework for vertical integration. The policy also sets out a number of decisions designed to ensure fair treatment for independent broadcasting distribution and programming services that must compete against strong vertically integrated competitors, protection of commercial information, and timely resolution of disputes between parties in the Canadian broadcasting system.

Case law

Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161

The respondents claimed the right to get a sporting event organised by them telecast by a broadcaster of their choice. The issue was whether the Government had monopoly of creating terrestrial signals and of telecasting them or refusing to do so. The court held that the freedom of speech and expression included the right to acquire information and to disseminate it to public at large, and that the right to communicate included right to communicate through any media whether print, electronic or audio-visual. Holding that airwaves constituted public property and needed to be used for advancing public good, the Court suggested that Parliament enact a legislation  at the earliest placing the broadcast media in the hands of a public corporation.

Theory/Commentary

International and comparative material

Robin Foster, News plurality in a digital world, Reuters Institute for the study of journalism, 25-52 (2012)

This report analyses the potential impact of digital intermediaries (such as news aggregators, search engines, social media and digital stores) on plurality in the news media. It finds that although digital intermediaries play an important role in enhancing plurality in many ways, concerns remain over their gatekeeper position over the news as well as the exercise of editorial judgment over different sources. It further argues that digital intermediaries are likely to have a significant impact on the future of news economics and may even develop considerable political influence. The report, however, concludes that hasty attempts to regulate may prove to be ineffective.

Eli M. Noam, Will Universal Service and Common Carriage Survive the Telecommunications Act of 1996? 97(4) Columbia Law Review 955 (May, 1997)

The author analyses the effect of competition law on telecommunications policy, observing that counter-intuitively, universal service is likely to endure rather than perish, because its support is ensured as advanced connectivity becomes even more essential; while on the other hand, common carriage is likely to be replaced by private carriage. It suggests that in a competitive environment, non-discriminatory common carriage can be maintained by enforcing the rule of third-party neutrality.

Tim Wu and Christopher Yoo, Keeping the Internet Neutral?: Tim Wu and Christopher Yoo Debate, 59(3) Federal Communications Law Journal 575 (2007)

In this paper, Tim Wu and Christopher Yoo make clear the connection between net neutrality and broader issues of national telecommunications policy. The paper is structured in the form of a debate between these two scholars, with both of them engaging with each other and presenting arguments and counter-arguments.

James B. Speta, The Vertical Dimension of Cable Open Access, 71 University of Colorado Law Review 975 (2000)

This paper discusses the debate over whether the owners of broadband internet access systems should be required to provide open access, and argues that mandating open access is unnecessary to prevent monopoly leveraging or monopoly maintenance by cable companies.

Austan Goolsbee, Vertical Integration and the Market for Broadcast and Cable Television Programming (April 2007)

This paper examines the evidence on vertical integration in television programming in the United States. It documents its prevalence and presents findings relating to whether integrated producers systematically discriminate against independent content in favor of their own content.

Thomas W. Hazlett, Vertical Integration in Cable Television: The FCC Evidence (October 2007)

This paper argues, empirically, that among the most popular and profitable cable TV channels, ownership by a cable operator is irrelevant to carriage decisions, and also shows that cable TV networks owned in whole or in part by cable TV operators succeed in gaining carriage on systems owned by other cable systems about as much or even more often than on cable systems owned by their parent company. The analysis then examines whether there is anti-competitive vertical foreclosure in the market leading to cable operators inefficiently favouring their own  program networks.

Christian Sandvig, Network neutrality is the new common carriage, 9(⅔) Info 136 (2007)

This article considers internet system development with reference to the net neutrality debate; with the objective of developing improved ways of reasoning about the role of the public interest in networked communications infrastructure.

William R. Richardson, Jr., The FCC’s television duopoly rule: is the third time the charm? 15 Commlaw Conspectus 1 (2006)

This paper discusses the lead up to the 2006 Quadrennial Regulatory Review of the Federal Communications Commission in the United States, focusing on the television duopoly rule and relying the analytical framework relied upon by the Commission in its previous Reviews.

Lesley Hitchens, Media Regulatory Frameworks in the age of broadband: Securing Diversity, 1 Journal of Information Policy 217 (2011).

In this article, the author explores the possibilities of a dramatically different regulatory framework in a post-convergence “Broadband Age.” She suggests that future media policy and regulation, she says, will have to address the entire “media ecosystem,” viewed as a “regulatory space” in which self-regulation and the market are all part of the basket of regulatory tools. Traditional rules limiting media ownership or setting content requirements are unlikely to be viable, and will be replaced by increased reliance on sectoral ex ante competition regulation. She concludes that traditional media regulations rooted in spectrum scarcity are not sustainable in the long term.

Richard Ma and Vishal Misra, The Public Option: a Non-regulatory Alternative to Network Neutrality (2011)

In this article, the authors develop a model of the Internet ecosystem in terms of three primary players: consumers, ISPs and content providers. They analyse this issue from the point of view of the consumer, describing the desired state of the system as one which maximizes consumer surplus. By analyzing different scenarios of monopoly and competition, they obtain different conclusions on the desirability of regulation.

Indian Material

Snehashish Ghosh, Cable Television Networks (Regulation) Act, 1995, Centre for Internet and Society (2013)

In this article, the author examines the purpose of the legislation, the persons affected by it, the administrative bodies which come under the Act, the penalties including the consequences in case of non-compliance, appeal process and the debates surrounding the legislation.

Nikhil Pahwa, TRAI’s Digital Cable Regulations: Fixes Carriage Fee, Channels, Tariffs, MediaNama (2012)

The article analyses the Tariff Order and Interconnection Regulations for the Digital Addressable Cable TV Systems, issued by the Telecom Regulatory Authority of India in 2012.

Amandeep Sandhu, How Cable Cartels Shut Out Independent Views, Tehelka (2013)

In this article, the author examines how politically-influenced cartels among cable television operators are adversely restricting consumer’s abilities to watch channels of their choice.

Sukumar Muralidharan, Broadcast Regulation and Public Right to Know, 42(9) Economic and Political Weekly 743 (2007)

The article discusses the debate around regulation of satellite television in India. The author argues that while the Constitutional provisions ensuring the freedom of expression remain open-ended on the matter of regulation, the debate itself has been between the interests of the television networks vis-à-vis those of the Government, as a result of which the public have ended up sidelined.

Daya Krishnan Thussu, The ‘Murdochization’ of news? The case of Star TV in India, 29 Media Culture Society 593 (2007)

This article discusses the growth of Rupert Murdoch’s Star TV group into a powerful player in India across various aspects of media. It argues that the resultant  ‘Murdochization’ of the media – described as a ‘process which involves the shift of media power from the public to privately owned, transnational, multimedia corporations controlling both delivery systems and the content of global information networks’ – in India, is debasing the quality of public deliberations in the country.

Aakshita Bansal, Vertical Integration in TV Broadcasting and Distribution Sector in India: A Competition Audit (2013)

This paper discusses relevant aspects of vertical integration and provides recommendations by analyzing the current market conditions and the future predictions for the media sector in India, in the context of the regulatory framework of the Competition Act and the regulations framed by the Telecom Regulatory Authority of India.

Apar Gupta, What is Network neutrality?, Mylaw.net podcast (2013)

The speaker discusses the principle of network neutrality, i.e. whether network providers should be allowed to discriminate between the information passing through their networks, in the context of applicable Indian law and regulatory frameworks.

Prashant Reddy, Google’s partnership with Airtel: The beginning of the end of ‘network neutrality’ in India?, SpicyIP (2013)

The author expresses concerns about the status of net neutrality in India and the lack of effective regulation by TRAI, in the context of a partnership between Google and Airtel to offer the former’s services at no cost to customers on the latter’s network.

Bibliography

Nico van Eijk, Net neutrality and audiovisual services, Routledge Handbook of Media Law (Monroe E. Price et al eds., Routledge 2013), pp. 523-537

Vanita Kohli-Khandekar, The Indian Media Business, (3rd edn., SAGE, 2010), pp. 55-116

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