Government of India
Ministry of Information & Broadcasting
‘A’ Wing, Shastri Bhawan, New Delhi,
******
No. 13/2/2002-BP&L/BC-IV Dated: 21st March, 2006
To,
The Secretary General
(Shri N.P.Nawani)
The Indian Broadcasting Foundation
B-304, 3rd Floor, Ansal Plaza,
Khelgaon Marg,
New Delhi-110049
Subject: Downlinking Policy : Extension of last date for making applications-reg.
Sir,
I am directed to refer to your letter dated February 7, 2006 on the above noted subject and to say that the matter was examined in consultation with M/o Law, Government of India. It is clarified that the stipulated 180 days for compliance with all formalities of registration and obtaining necessary permission for downlinking will be reckoned from 11th November, 2005 i.e. the date when the Downlinking Policy guidelines were issued/made public, as per clause 2..6 of Downlinking Guidelines.
Sd/-
(G.R.Raghavender)
Under Secretary to the Govt. of India
Tel. No.23387930
Government of India
Ministry of Information & Broadcasting
‘A’ Wing, Shastri Bhawan, New Delhi,
******
No. 13/2/2002-BP&L/BC-IV Dated: 21st March, 2006
To,
The Star India Pvt. Ltd.
1st Floor, Central Wing, Thapar House,
124, Janpath,
New Delhi-110001
Subject: Downlinking Policy : Extension of last date for making applications-reg.
Sir,
I am directed to refer to your letter dated February 7, 2006 on the above noted subject and to say that the matter was examined in consultation with M/o Law, Government of India. It is clarified that the stipulated 180 days for compliance with all formalities of registration and obtaining necessary permission for downlinking will be reckoned from 11th November, 2005 i.e. the date when the Downlinking Policy guidelines were issued/made public, as per clause 2..6 of Downlinking Guidelines.
Sd/-
(G.R.Raghavender)
Under Secretary to the Govt. of India
Tel. No.23387930
F.No.23/2/2005 BC-IV
Government of India
Ministry of Information and Broadcasting
Broadcasting Wing
New Delhi.
Dated: 2nd May 2006
To
The Secretary General,
(Shri. N.P.Nawani)
Indian Broadcasting Federation (IBF),
B- 304, 3rd Floor, Ansal Plaza,
Khelgaon Marg,
New Delhi -110049
Subject: Downlinking Guidelines: Some clarifications.
Sir,
The undersigned is directed to inform you that the tabular statement giving clarifications of M/o I&B on the various queries raised on the downlinking guidelines and application form for information and dissemination amongst television channels in India have been posted on this Ministry’s web site (http://mib.nic.in) at “Codes & Guidelines –Clarification on downlinking television channels in India”. It is requested that this may be informed to all TV channels.
Sd/-
(G.R.Raghavender)
Under Secretary (BC)
Tel.No: 23387930
raghavender_gr@yahoo.co.uk
F.No.23/2/2005 BC-IV
Government of India
Ministry of Information and Broadcasting
Broadcasting Wing
New Delhi.
Dated: 2nd May 2006
To
Senior Vice President,
Time Warner Inc.,
(Mr. Hugh L Stephens)
International Relations &
Public Policy, Asia Pacific,
30/F, Oxford House, Taikoo Place,
979 King’s Road, Quarry Bay,
Hong Kong
Subject: Downlinking Guidelines: Some clarifications.
Sir,
The undersigned is directed to refer to your letter dated 9.3.2006 addressed to Secretary, Ministry of Information and Broadcasting, Government of India regarding Downlinking Guidelines and to inform you that tabular statement giving clarifications of M/o I&B on the various queries raised on the downlinking guidelines and application form have been posted on this Ministry’s web site (http://mib.nic.in) at “Codes & Guidelines –Clarification on downlinking television channels in India. You may like to refer to the Web-site.
Sd/-
(G.R.Raghavender)
Under Secretary (BC)
Tel.No: 23387930
raghavender_gr@yahoo.co.uk
F.No.23/2/2005 BC-IV
Government of India
Ministry of Information and Broadcasting
Broadcasting Wing
New Delhi.
Dated: 2nd May 2006
To
RMS &Co.
Chartered Accountants,
Habitat India, Tower I, 3rd Floor,
C- 3, Qutub Institutional Area,
New Delhi -110016
Subject: Downlinking Guidelines: Some clarifications.
Sir,
The undersigned is directed to refer to your letter dated 13.4.2006 addressed to Director (BC), Ministry of Information and Broadcasting, Government of India regarding Downlinking Guidelines and to inform you that tabular statement giving clarifications of M/o I&B on the various queries raised on the downlinking guidelines and application form have been posted on this Ministry’s web site (http://mib.nic.in) at “Codes & Guidelines –Clarification on downlinking television channels in India. You may like to refer to the Web-site.
Sd/-
(G.R.Raghavender)
Under Secretary (BC)
Tel.No: 23387930
raghavender_gr@yahoo.co.uk
ISSUES RAISED ON DOWNLINKING GUIDELINES AND CLARIFICATIONS THEREON BY MINISTRY OF INFORMATIONAND BROADCASTING, GOVERNMENT OF INDIA
| Para No. | Subject of query | Corresponding provision in Guidelines | Remarks/Reply |
| Part A col.7 of Application Form | Whether there is any need to provide details of applicant’s shareholders since each applicant company is to satisfy net asset value requirements. | Clause 1(sub-clauses 1.1 –1.8) | Yes, data on majority shareholders is necessary. |
| Part A col.8.3 (C) (ii) and (vii) | Section 8.3 ( C ) (ii) is about Pro-rata share of FDI in the Promoters/Majority shareholders | Clause 1.1. | Yes, this data is required for ascertaining the foreign equity element. |
| | Guidelines are silent on the policy on FDI in the Applicant Company. It has been presumed that 100% FDI is permitted under the automatic route. Seeking confirmation from M/o I&B. | -do- | It is clear from Clause 1.1 that 100 % FDI is permitted. However broadcasting is not on the automatic route, all proposals for FDI in broadcasting sector are routed through FIPB to Ministry of I & B. |
| Part A col.9 | What is the relevance of date October 30, 2005 since it is understood that the applicant company would be required to maintain the net-worth continuously? | Not mentioned in the guidelines | Net worth requirement is to be met on 30.10.2005 or any date thereafter and continuously. |
| | The Guidelines were published until November 2005, and since some of the applicant companies do not have sufficient net worth to comply with the asset requirement, it is clearly impossible for many applicants to satisfy the net worth requirement as of October 30, 2005. | Clause 1.5 | As on the date of submission of application for permission under Downlinking guidelines, the applicant company must have requisite net worth and continue to satisfy the requirement thereafter. |
| | | | |
| | They have requested that the date of 30.10.2005 be deleted and the date of filing be substituted. | | -do- |
| Part B 2(i) and (ii) | They have referred to an apparent inconsistency between Articles 1.3 and 1.4 of the Guidelines and the above articles. The applicant company, which does not own the channel being or proposed to be downlinked to have EXCLUSIVE marketing and distribution rights to the channel. The Form makes no reference to an exclusivity requirement. The have asked which one will prevail. | Clause 1.3 and 1.4 of the guidelines. | Clause 1.3 says the applicant must either own or enjoy exclusive right for certain purposes. Whereas Clause 1.4 further qualifies that if the applicant has exclusive marketing/distribution rights, it should also have the authority to conclude contracts for programme content. The word ‘In case’ merely implies that it is obligatory for the applicant company to possess the authority to conclude contracts, if the owner of the channel is not the applicant. As such there is no contradiction. In any case, the guidelines shall prevail. |
| | The requirement for the applicant company to have the authority to conclude contracts on behalf of the channel for advertisement, subscriptions and program content, where the rights to advertisement and subscription revenues is already with the Applicant Company, is illogical, redundant and unreasonable interference in the business model of the applicant company. If the applicant entity has exclusive rights for India, including right to advertisement and subscription revenues, it will not need any authority to conclude contracts for the same as an agent of the offshore channel, as it will be contracting for the revenues on its own behalf. | Clauses 1.3 and 1.4 | The two clauses have to be read in harmony. If an applicant company has the exclusive rights to advertising and distribution rights, than it must also have the right to conclude contracts on behalf of the channel for advertising distribution or programme content in India. |
| | The Form and the Guidelines also reference “ownership” of a channel, and it is not clear what rights to the channel the applicant must hold in order to qualify as owning the channel. | The word owner has not been defined in the guidelines. | “Owner” is well known, and needs no clarification. However, the owner should hold all IPR and economic rights to the channel. |
| | Is it sufficient that the applicant does not have to share the (marketing and distribution) revenues it derives in India with the creator of the channel ? It appears that the Ministry intends to force the industry to change its commercial relationships with offshore channels. Is that a valid policy objective for the Ministry and what such an objective will achieve? | | No comment. The policy is self-evident. |
| | Is it contemplated that for “continuous” monitoring, the Government would be deputing an official to such premises or would the applicant company need to make such arrangements internally? | Clause 1.7 | The applicant company is required to provide a facility where online monitoring of the content being beamed into India is possible, also the system should have the capacity to store the data for 90 days which should be available to the Govt at any point of time, in India, at a pre-designated place. The companies need not set up new facilities for this purpose but could authorize any of their MSO’s or head end operators to provide this facility to Govt. The facility should be open o access by Govt. at any time. |
| | Are there any prescribed parameters as to location and type of the facility/equipment? | No specific requirement projected in the guidelines. | It is only intended that the monitoring facility set up by the applicant company should be capable of storing material documents for at least 90 days to enable Ministry to screen the contents as and when it wants. The arrangement may be made at an appropriate and conveniently approachable place within the territory of India. |
| Part C: 3 and 4 ( c ) | Many of the trademarks of offshore channels are not yet registered owing to the inordinate delays in the Trademark Office for processing registrations. Requesting to add “Or has application for same been made ?” | Has no reference in the guidelines | The factual status can be stated in reply by the applicant. |
| | It is unclear why a foreign telecasting company/overseas trade mark or logo owner would need to have an agreement with the applicant company for use of such trade mark/logo in India if the applicant company merely has the right to market or distribute channels. | This has reference to clause 1.4 and 1.5 | The intention is to protect the Intellectual Property rights to the trade mark/logo and trace its authorization to the applicant company. |
| Part C: 9(viii) & (ix) | It is unduly burdensome to require a channel to apply for a waiver/modification if it broadcasts, for example, one advertisement “aimed at Indian viewers”. We would also request clarification of the requirement for “arguments in support”. They have also requested clarification of the requirement for “arguments in support”/ What arguments are valid here, given that the procedure and underlying criteria for granting the “waiver/modification” have not been detailed ? What is the extent of such a waiver/modification and how long would it last ? | Clause 2.4.1 | It is not intended that the applicant company will seek permission on each occasion of transmitting an advertisement aimed at Indian viewers. The waiver will be based on the facts and circumstances of each case and will be subject to conditions, on a case-to-case basis. It is for the applicant company to make a case in its support. It may adduce any such data it consider necessary. Some data has already been sought in the application form. |
| Part C: 10(ii) | While broadcasters will ensure that decoders are supplied only to registered distributors, the Guidelines and the Form do not take into account direct institutional distributors such as hotels, educational institutions, etc. | Clause 5.6 | The applicant company may give details of such recipients also. |
| | Seeking confirmation that all applications, information and documentation submitted to it by the applicant companies will be : i. held in strict confidence ii. not divulged to any party outside the M/o I&B and MHA iii. used solely for the purpose of (i) in the case of the M/o I&B, considering and deciding upon the relevant applicant company’s application for permission to downlink its television channel in India iv. in the case of the MHA considering and deciding upon security clearance issues arising from such application (Since it will necessarily contain sensitive, commercially confidential information) | | The information received will be used for official purposes only. |
| | Seeking extension by six months in view of the time lapse between announcement of the Guidelines and the establishment of the registration deadline. / www.mib.nic.in/writereaddata\html_en_files\tvchannels/ClarificationDownlinking.htm | | The guidelines stipulate a time of 180 days from 11.11.05 for completion of all formalities of registration, under downlinking guidelines. However, channels for which even complete applications, with processessing fees are not received on or before 10.5.2006, shall not be permitted to be downlinked thereafter. |
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