Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) refused to examine the information filed against Broadcast Audience Research Council on merits.

Present information was filed under Section 19(1)(a) of the Competition Act, 2002 by Informant against Broadcast Audience Research Council (OP/BARC) alleging the contravention of the provisions of Sections 3 and 4 of the Act.

The Informant is stated to have recently come to know, through TV channels and a few reports, about the ‘fake TRP’ scam and how a few news channels have been making payments to increase their viewership and thereby, their TRP ratings.

Further, the Informant stated that OP had suspended reporting of ratings for a period of 8-12 weeks for news channels while continuing to publish ratings of other channels.

Adding to the above, it was submitted that if the system is faulty in respect of news channels, it can be faulty in respect of other genres of channels too. Thus, when institutional integrity has been compromised, it is improper to allow such an institution to publish ratings.

Allegation by the informant was that the OP had colluded with a private news channel and a media outlet and manipulated TRP ratings of the said news channel and media outlet such that they were perceived as the highest-grossing television channels which would, in turn, invite more advertisements.

The collusion between the OP and television channels would amount to an arrangement between entities at different stages of production and the manipulation of TRP has a direct and significant impact on the performance of a channel and how it is received by the public, and therefore, OP entered into an anti-competitive agreement which was prohibited under Section 3 of the Act.

Analysis, Law and Decision

Commission noted from the reply of OP that it had got a criminal complaint registered with the Mumbai Police in relation to ‘TRP Scam’. OP further claimed to have assisted several law enforcement agencies in their investigations surrounding the ‘ratings manipulation’.

OP’s Technical Committee has provided its recommendations on the revised reporting standards, and the OP is in the process of implementing the same once the directions for maintaining the status quo are lifted by MIB.

Lastly, the Commission opined that it is unnecessary to dwell any further on the issues projected in the Information by examining the matter on merits, and accordingly, the Information is ordered to be closed. [R. Gunasekaran v. Broadcast Audience Research Council, Case No. 11 of 2021, decided on 23-11-2021]

Hot Off The PressNews

Ministry of Information and Broadcasting has today constituted a committee to review “Guidelines on Television Rating Agencies in India” notified by the Ministry in 2014.

The present guidelines issued by the Ministry of Information and Broadcasting (MIB) on Television Rating Agencies in India were notified after detailed deliberations by the Parliamentary Committee, Committee on Television Rating Points (TRP) constituted by the MIB and recommendations of Telecom Regulatory Authority etc.

It has been found, based on the operation of the guidelines for a few years, that there is need to have a fresh look on the guidelines particularly keeping in view the recent recommendations of Telecom Regulatory Authority of India (TRAI), technological advancements/interventions to address the system and further strengthening of the procedures for a credible and transparent rating system.

A committee has been hereby constituted to study different aspects of the television rating system in India as they have evolved over a period of time.  The Committee shall carry out an appraisal of the existing system; examine TRAI recommendations notified from time to time, overall industry scenario and addressing the needs of the stakeholders and make recommendations for robust, transparent and accountable rating system through changes, if any, in the existing guidelines.

The composition of the Committee shall be as under:-

i)             Shri Shashi S. Vempati, CEO, Prasar Bharti                 …. Chairman

ii)            Dr Shalabh, Professor of Statistics,

              Department of Mathematics and Statistics,

              IIT Kanpur                                                                           ….Member

iii)           Dr. Rajkumar Upadhyay, Executive Director,

              C-DOT                                                                                  ….Member

iv)           Professor Pulak Ghosh, Decision Sciences

              Centre for Public Policy (CPP)                                         ….Member

The Terms of Reference for the Committee shall be as under:

  1. Study past recommendations made by various forums on the subject of television rating systems in India and matter incidental thereto;
  2. Study recent recommendations of Telecom Regulatory Authority on the subject;
  3. Suggest steps for enhancing competition in the sector;
  4. Review of the presently notified guidelines to see if the intended purpose(s) of issuing the guidelines have stood the test of time and has met needs of various stakeholders involve The lacunae, if any, shall be specially addressed by the Committee;
  5. Any issues related or incidental to the subject;
  6. To make recommendations on way forward for robust, transparent and accountable rating system in India; and
  7. Any other related issues assigned by MIB from time to time.

The Committee can invite any expert as a special invitee. The Committee will submit its report to the Minister for Information & Broadcasting within two months.

Ministry of Information & Broadcasting

[Press Release dt. 04-11-2020]

[Source: PIB]

Hot Off The PressNews

In the light of the recent developments, BARC Board has proposed that it’s Technical Committee (Tech Comm) review and augment the current standards of measuring and reporting the data of niche genres, to improve their statistical robustness and to significantly hamper the potential attempts of infiltrating the panel homes. This exercise would cover all Hindi, Regional, English News and Business News channels with immediate effect.

Therefore, starting with the ‘News Genre’, BARC will cease publishing the weekly individual ratings for all news channels during the exercise. This exercise is expected to take around 8-12 weeks including validation and testing under the supervision of BARCs Tech Comm. BARC will continue to release weekly audience estimates for the genre of news by state and language.

Explaining the need for this move, Punit Goenka, Chairman of BARC India Board said, “Given the most recent developments, the BARC Board was of the opinion that a pause was necessitated to enable the industry and BARC to work closely to review its already stringent protocols and further augment them to enable the industry to focus on collaborating for growth and well-natured competitiveness”.

Says Sunil Lulla, CEO, BARC India, “We at BARC take our role in truthfully and faithfully reporting ‘What India Watches’ with the greatest sense of responsibility and work with integrity to ensure that our audience estimates (ratings) remain true to their purpose”. He added, “besides augmenting current protocols and benchmarking them with global standards, BARC is actively exploring several options to discourage unlawful inducement of its panel home viewers and further strengthening its Code of Conduct to Address Viewership Malpractice”.

Broadcast Audience Research Council of India

Statement dt. 15-10-2020

Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., refused to pass an interim injunction in regard to the communication dated 03-09-2020 along with Press Release dated 03-09-2020 and Frequently Asked Questions issued by the respondent, BARC.

Jurisdiction to adjudicate the present dispute

The basis of the present petition was that the disputes raised challenge raised by the petitioner to the above-mentioned communication and press release comes under the jurisdiction of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), however, the working of which is suspended due to COVID-19.

Impugned Communication

Respondent which is registered as a television rating agency introduced algorithms into its data validation method purported to mitigate the impact of ‘Landing Page’ on viewership data across all genres of television channels.

The said data was published on 03-09-2020 and thereafter, published every Thursday.

The above-stated communication was challenged before TDSAT, which was allowed. TRAI again challenged the order of TDSAT before the Supreme Court, wherein the Court held that,

“.. we direct that the appellant shall not enforce Landing Page Regulations/directions against the respondents and other similarly situated members of the Association.”

In view of the Supreme Court’s decision, petitioners counsel submitted that, placement of television channels on the Landing Page is still permitted, though the operation of the Judgment of the TDSAT has been stayed.

Respondent has sought to restrict the rights of the television channels to be placed on the Landing Page on the same grounds as was sought to be done by TRAI.

Breaking down the High Court’s decision

With regard to the maintainability of the petition, Bench referred to Clauses 19.1 and 24.1 of the Policy Guidelines issued by the Government of India according to which the respondent is governed by the provisions of the Telecom Regulatory Authority of India Act, 1997 and any dispute between the Government of India and the respondent is to be raised before the TDSAT.

Section 14 of the Telecom Regulatory Authority of India Act, 1997:

“14. Establishment of Appellate Tribunal- The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to-

(a) adjudicate any dispute-

(i) between a licensor and a licensee;

(ii) between two or more service providers;

(ii) between a service provide and a group of consumers.”

End-User License Agreement executed between petitioner 1 and the respondent in Clause 6(v) and 9(i)(g)(v) allows the respondent to change the methodology used by it for the TV channel rating.

 End-User License Agreement

Further, the Bench added that, once it is held that TDSAT would have jurisdiction under Section 14 of the TRAI Act, 1997 the same cannot be diversified through an Agreement between the parties and especially Clause 24 of the End User License Agreement.

Clause 5.4.2 of the Policy Guidelines requires the rating agency to use necessary algorithms to detect outliers having unusual viewing behaviour and discard such data.

Landing Page by a channel exaggerates viewership estimates by “forcing viewership”.  The new methodology evolved by the respondent is after detailed study and testing across multiple genres and would ensure minimization of any “false positives or negatives”.

Adding to its analysis, the Court stated that the respondent can be presumed to be an expert in the field as also in possession of knowledge of the industry and the steps required for its improvement. Decisions of such a body cannot be interfered with lightly.

“TDSAT was considering the powers of the TRAI to issue the Direction prohibiting placement of TV channels on the Landing Page and concluded that TRAI had no such powers under the provisions of the Act.”

Hence, petitioners could not make out the case of grant of interim injunction. It was however clarified that no observation in the present order shall bind the TDSAT in deciding any petition filed before it.

[Bennett Coleman & Co. Ltd. v. Broadcast Audience Research Council of India, 2020 SCC OnLine Del 1330, decided on 29-09-2020]

Petitioner’s Counsels:

Senior Advocates Dr Abhishek Manu Singhvi and Maninder Singh with Advocates, Kunal Tandon, Kumar Shashank Shekhar, Prabhas Bajaj, Amit Bhandari & Amandeep Singh.

Respondent’s Counsels:

Senior Advocate Neeraj Kishan Kaul with Advocates Saikrishna Rajagopal, Sneha Jain, Ranjeet Singh Sidhu, Sudarshana MJ & Akash Lamba.