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TRAI’s TV Ad Limits Remain: Broadcasters TDSAT Appeal Dismissed

In a move that is significant for the growth of digital advertising, TDSAT, the telecom disputes settlement forum, has dismissed an appeal by broadcasters against the TRAI’s regulation limiting advertising on TV, reports IndianTelevision.com, which has published daily reports from the TDSAT hearings. According to the publication, one TDSAT’s decision is likely to have been impacted by a recent Supreme Court verdict stating that TDSAT does not have the authority to hear cases challenging TRAI regulations.

This means that the case may have been dismissed on grounds of jurisdiction, and the broadcasters will have to look to other forums, possibly the High Courts, for further litigation. Given the impact that this regulation will have on broadcasters revenues in India, it is unlikely that they will accept the TRAI regulation without challenging it in courts. The regulations significantly restrict advertising on television, which, if imposed, will accelerate the growth of digital advertising in India:

–  Maximum Duration Limit of Advertisements: 12 minutes per clock hour, but with the leftover advertisement duration (if any) carried over to the next hour. This is applicable to advertising spots, info-commercials and house inventory from the broadcaster.

– Advertisement breaks only during breaks for live sporting events: half time in football or hockey match, lunch/ drinks break an change of overs  in cricket matches, game/set change in case of lawn tennis etc

No Partial Advertisements: Only full screen ads allowed. This would certainly come as a blow to sports broadcasters who sell screen overlays as part of ad inventory.
– Audio Level of Advertisements: broadcasters should ensure that the audio level of advertisements should not be higher than the audio level of the programmes.
– Broadcasters to Submit Ad Details: All broadcasters have to submit the details of advertisements carried in their channel in the format specified by TRAI, within 15 days from the end of a quarter.

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A quick overview of Indiantelevision.com’s coverage:

Aug 30: TDSAT stayed the TRAI order, forbidding it from taking any coercive action against news channels for not abiding with the ad cap rules, despite most of the channels that are a part of the News Broadcasters Association (which filed the TDSAT petition), abiding by the TRAI regulations. The GEC’s were apparently limiting advertising on their channels, in line with TRAI regulations. More here.
Nov 11: The NBA counsel said that the TRAI had no authority to regulate advertisements, since no provision in the law gives it that power, stating that advertising is, effectively, content. More here.
Nov 12: Counsel for the News Broadcasters Association said that “the Regulations made by the TRAI have to be placed before the Parliament to seek its approval,” and the TRAI had not done that. More here.
Nov 13: The NBA counsel referenced a Supreme Court judgement which ruled that a newspaper should have the liberty to carry as many advertisements as it would want to because ‘curtailment of advertising is a curtailment of free speech’. More here.
Nov 20: Music channels argued that Free to Air channels without subscription revenues should not be treated on par with pay channels, and all channels should not be classified as equals. More here.
Nov 20: TRAI said that the Cable Networks Regulation Act 1995 as well as The Indian Telegraph Act 1885 and the TRAI Act empower it to regulate the sector, since broadcasters are licensees; it was interpreting section 7 (11) of the Cable TV Act of 1995 which says that the authority has the power to “seize equipment used for operating the cable television network”, if found in breach of other sections. On placing the regulation before Parliament, TRAI said that it had submitted the regulation to the relevant ministry. More here.
Nov 22: TRAI counsel stated that there is a clear parliamentary mandate exercised through the central government to regulate advertisements, and theirs isn’t a recommendatory role. On being asked if the TRAI can direct Google on the duration and number of ads it can run, the TRAI counsel said “I am the regulator and I will decide who, when and how much to regulate”. More here.
Nov 26: Amicus Curiae Madhavi Divan suggested that the duration of advertisements does not come under content (more here).
Nov 27: The second amicus curiae, Aman Ahluwalia, said that the TRAI has the authority to regulate ad caps because advertisements are not content, and the quality of service is not a technical point, and duration is not content. (more here)
Nov 29: NBA counsel argued ad rates would need nearly 50 to 100 per cent increases, if losses due to lower ad time are to be covered. (more here)

Also read:
Impact Of India’s TV Advertising Limits On Digital & TV; Digital First

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