I. BACKGROUND:

The broadcasting of television services- channels to the public has undergoneremarkable technological advancementwith such services being directed anddelivered straight to the homes of theend users/ consumers. In India, thesatellite broadcasting TV services areprimarily made available through severaldistribution platforms viz., Cable TV,Internet Protocol Television (IPTV),Direct-to-Home (DTH), and Headend-in-the-Sky (HITS) networks.

In order to be able to make availablethe content delivered over the satelliteTV channels to the ultimate consumers,the broadcasters are required to interactwith the Distribution Platform Operators(DPOs) being Multi System Operators(MSOs), IPTV operators, DTH operatorsand HITS operators and then via LocalCable Operators (LCOs) for providingdigital TV services.

As on 30th June 2020, in India, thereare 1666 MSOs, 4 DTH operators and 1HITS operator for broadcasting a totalof 332 pay TV channels which werepermitted for downlinking for more than70 million active subscribers. Typically,DPOs are required to set up their complexinfrastructure and obtain requisitelicenses and permissions thereto fordownlinking of TV signals from thebroadcasters’ satellites and then furtherencrypting it for being transmitted toconsumers through cables, antennasand/or dishes.

It was realised that since most ofthe content/TV channels re-transmittedby these operators were common, thepossibility of better utilization ofthe existing infrastructure could beexplored. Subsequently, the Ministry ofInformation & Broadcasting (MIB), afterconsultation with Telecom RegulatoryAuthority of India (TRAI) decided toamend the existing ‘Headend-in-the-Sky (HITS) Guidelines for BroadcastingService in India’ dated 26.11.2009(“HITS Guidelines”), for introduction ofguidelines for Sharing of infrastructureby HITS operator (para 16 and 17) bypassing an order dated 06.11.2020 (“MIBOrder”). The present article discussesthese recent guidelines for infrastructuresharing in HITS technology, its possibleimpact on broadcasting and digitalnetwork services in India and the legalapprovals and pre-requisites to befulfilled before initiating infrastructuresharing between operators.

II. GUIDELINES FOR HITSINFRASTRUCTURE SHARING

The discussions around the scopefor optimum utilization of availableinfrastructure started in May 2016when TRAI came up with a Pre-Consultation Paper for examiningtechnical and commercial issues insharing of infrastructure such assatellite transponders, Earth Stationfacilities, Headend facilities and opticalfiber networks. It was identified that,for enabling infrastructure sharing,modifications in the existing policyguidelines for various platforms areimminent.

Prior to this, as per licensingconditions, each DPO was requiredto establish and maintain its owninfrastructure for distribution ofTV channels/services to subscriberssubjectively leading to inefficient useof resources. The joint utilization ofresources, infrastructure has provento be beneficial across instances wheretelecom companies share towers,antennas, spectrum, etc., resulting inreduced cost of operations, the effectof which is likely to trickle down to theconsumers in a competitive market.

To better understand the renewedscope of the HITS Guidelines, it is vitalto examine the process used by HITSoperators while interacting with otherDPOs. Amongst all DPOs, HITS is the mostrecent recognised mode of distributiontechnology. It is a distribution andtransmission technology that enablesmultiple pay channels to be downlinkedfrom broadcasters’ satellites at a centralfacility (hub/teleport). This downlinkedcontent/ channels are then, onencryption, uplinked it to the HITS’operators satellite for retransmission/distribution through MSOs/LCOs tocustomers’ television homes, who canview these pay channels by using theirset-top box. As compared to other DPOs,HITS provides digitally compressedprogramming via satellite with a uniformencryption system using a singleheadend server in the sky/cloud.

The MIB Order revising the existingHITS Guidelines has opened gateway forHITS operators to provide infrastructuresharing facilities to other DPOs. Thiswill allow the operators to avoidsetting up the elaborate infrastructurefor broadcasting TV content and theoperators can simply contract with HITSoperators for downlinking the aggregatedchannels of the broadcasters to theirHITS satellite. It is widely known thatthis sector requires heavy investmentin terms of the infrastructure thatis sought to be erected, as well as interms of the compliance costs that areinvolved. The compliance costs wouldalso mean to include any costs expendedtowards any import of equipment, thelicenses required for maintenance,testing, working and implementation. Itis presumed that where a particular DPOsets up their own installations for theirpurposes, the sameinfrastructure tothe extent possible could be realigned,configured to be used by other DPOsin the ecosystem, without having toduplicate the resources which are vestedin achieving a similar objective.

III. REQUISITE COMPLIANCES:

While the MIB has permitted flexiblesharing of platform infrastructure,there are certain pre-requisites/licenses that must be complied withbefore DPOs can share infrastructurewith a view to ensure that encryptionof signals, addressability and liabilitiesare not compromised. The MIB Orderhas clarified that the sharing is limitedto Indian controlled satellites onlyand the MSOs must have valid writteninterconnection agreement with theconcerned broadcasters for distributionof Pay TV channels to the subscribers.Subsequently, the new applicant(s)and existing licensee(s) have to jointlysubmit a detailed proposal to the MIBchalking down the following:

i. details of infrastructure proposed tobe shared,
ii. proposed manner of sharinginfrastructure, and
iii. roles and responsibilities of eachparty.

This proposal shall also comprise:

i. Acceptance from all concernedstakeholders for sharing infrastructure inwriting.
ii. No Objection / Permission forsharing infrastructure will be subject to:
a. Security clearance by Ministry ofHome Affairs,
b. Clearance of satellite use andtransponder sharing from Department ofSpace (DoS),
c. Wireless Operating License issuedby Wireless Planning and Coordination(WPC) Wing,
d. National Operational Control Centre(NOCC-DOT) certification
iii. Copies of the Agreements betweenthe parties sharing infrastructure withconditions stipulated in the guidelines.
iv. An undertaking by both partiesproposing to share infrastructure thatthere will not be any violation ofunderlying terms and conditions of thelicence granted or to be granted.

It is clarified that for sharing Indiansatellite resources and up-linkinginfrastructure, written permissionsof DoS, MIB and WPC and NOCC-DoTare prerequisites. Pertinently, sharingis only limited to infrastructure butnot accountability, as each respectiveHITS operator, MSO/cable operatorwill be individually responsible andaccountable for integrity and securityof the data with respect to ConditionalAccess System (CAS) and SubscriberManagement System (SMS) pertaining tothe respective operator. For all practicalpurposes, the broadcaster, MSO/LCO andthe HITS operator may enter a joint /tripartite contract for ensuring that theabove compliance has been made. Inother words, this paradigm of operationextends only to the utilization ofcommon resources and does not allowthe engaging entities to rely upon oneanother’s licences.

In our view, these guidelines i.e.,MIB Order will bring a paradigmshift in the way broadcasting signalshave traditionally been transmittedby DPOs by reducing the imminentneed for satellites and cable wires fortransmission. It will also help decreasethe divide between urban and ruraltransmission of digitised broadcastingsignals as more and more DPOs and cableoperators may join the market, whichprospect was earlier dreaded by manyowing to the elaborate input cost.

IV. PROSPECTED BENEFITS:

It is expected that that theseguidelines for infrastructure sharingin HITS platform will not only changethe way DPOs function in India but willalso encourage stakeholders for sharinginfrastructure and other input resourcesfor other services as well. Primarily,pursuant to sharing of infrastructure,requirement for heavy investment byother DPOs and cable operators will becut down and now other DPOs will merelyhave to equip homes with set-top boxesand continue to act as operators, ratherthan opting to be franchisee.

It is expected that in a competitivemarket, a distinct advantage ofinfrastructure sharing is that thebenefits, in the form of reduction in bothcapital and operating expenditure ofoperators will ultimately be passed on tothe subscribers in the long run. This mayalso witness in fostering growth amongst the domestic players, especially in theface of such extreme reliance on foreignplayers as is prevalent now.

The sharing of infrastructuretechnology by HITS operators will allowa faster and more convenient systemof distribution of broadcasting signalsacross vast networks, especially sincemultiple broadcasters will be able totransmit their content to a single HITSoperator, who in turn, downlinks,encrypts and forwards these signalsto MSOs and LCOs, providing alternatemeans to traditional modes of serviceproviders such as DTH.

In addition to the economic andenvironmental benefits such as reducedduplication of radiations, optimisationof resources, etc., the encouragement ofsharing will promote improved servicenetwork quality and innovation byoperators rather than spending time oncore operations and services. Further,since the market competition canreasonably be expected to enhance,the choice of network service providerfor the customers will also improveenabling a larger outreach and moreconsumer-friendly prices. Additionally,from a governance standpoint eventhough there is a requirement forseparate licenses to be sought from theconcerned authorities, departments andministries, the efforts that are made bythe authorities in analyzing the efficacyof the infrastructure will not have tobe duplicated for entities operatingover a common infrastructure. It is ascenario where the compliance costsare not decreased drastically, but wherethe expectancy / chances of compliancebeing met with, are increased for ashared resource.

V. CONCLUSION

Since the Indian market is migratingto digital transmission and systems likeHITS which offer cost-effective high-qualitysignals, the MIB Order passed inconsultation with TRAI is seen to be areal boon to the end-users. The existingGuidelines along with the MIB Orderdated 06.11.2020 have been formulatedkeeping in mind the long-term potentialthat lies ahead if the right policies aredevised about infrastructure sharing.Theseguidelines will cover distributionof channels of multiple broadcastersthrough a single source streamedthrough satellite to the cable operatorsand thereby enabling expansion ofthe digital content services industry.The sharing of infrastructure of HITSoperators for content distribution willcertainly enhance the overall customerexperience and the ultimate goal ofdigitalization of cable television acrossthe country also seemscloser.

Sanya Dua, Associate

Sanya Dua is an Associate at TMT Law Practice. She has valuable experience of over 3 years and is a member of the Delhi State Bar. Her primary areas of interest is in Commercial Dispute Resolution and General Corporate Advisory in the industries of Telecommunication, Construction, Real Estate, Insolvency Resolution, Banking and StartUps. She has considerable exposure at representing clients ranging from private individuals, corporates, banking institutions as well as government departments before various courts / adjudicatory authorities. She is considerably effective at constructing legal strategies to suit best interests of clients.

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