The curtains are about to close on an eventful and oddly unconventional FIFA World Cup. Previous winners such as Spain and Germany have been sent packing by the likes of Russia and Mexico respectively, while France’s young core and the darkest of all dark horses Croatia have peaked at the right time to set up a showdown finale. One match, winner takes all.

Interestingly, France or Croatia will not emerge as the only winner from this match. The FIFA World Cup Final is widely recognized as the most watched televised live event in the world, drawing a worldwide active audience ranging in the hundreds of millions. Broadcasters and advertisers across the world are primed to make a killing from the FIFA World Cup Final. Procuring broadcasting rights for the FIFA World Cup has become an increasingly expensive proposition, what with the winning bid for broadcasting rights in each country breaking records set by previous bids. However, submitting a winning bid for such a marquee event is still regarded as a value proposition despite its inflated price. In the age of direct-to-home (“DTH“) satellite television, no stone is being left unturned in the quest to grab as many eyeballs as possible. After all, only by achieving greater market penetration and more impactful brand out-reach, can broadcasters bring more advertisers and sponsors on board and thereafter afford to submit higher bids in each subsequent edition of the FIFA World Cup. It is noteworthy that the scale of the FIFA World Cup is raised every subsequent edition, due in significant part to the aforementioned increasingly expensive bids for broadcasting rights. The bid money received is invested in ensuring that every subsequent edition is grander and more massive in scale than its predecessor.

For broadcasting in India, the entire bundle of internet, mobile, radio and television rights for the FIFA World Cup 2018 was procured by Sony Pictures Networks (“SPN”), as part of their on-going 5 year exclusive broadcast rights deal of all FIFA related events. The 5 year rights’ bundle was purchased for a reported figure of USD 90 million. Clearly, Sony has incurred a significant financial expenditure and aim to recoup their investment from ad sales and on-air sponsorship money. However, the public-run Prasar Bharati, which operates the Doordarshan network of channels, has played spoilsport (yet again).

Going as far back as 1993, where the broadcast rights of the Hero Cup cricket tournament was sold to the Hong Kong based International Management Group, Prasar Bharati has been mooching off of the broadcasting signals owned and operated by private broadcasters who have paid good money to procure these rights. Under the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act of 2007 (“Prasar Bharati Act”), private broadcasters are compelled to share clean feeds of broadcasts with Prasar Bharati for certain sporting events. The reasoning behind such forced sharing is that Prasar Bharati’s telecast reaches the remotest corners of the country and caters to a population which cannot afford satellite television and subscription-based broadcasts. Therefore, for sporting events of “national importance”, private broadcasters are mandated to share their feed with Prasar Bharati in public interest. As per a January 27, 2017 notification issued by the Ministry of Information and Broadcasting (“MoIB”), the final of the Football World Cup has been notified as a sporting event of “national importance” under the Prasar Bharati Act. Hence, SPN is statutorily bound to share the broadcast feed of the FIFA World Cup Final with Prasar Bharati. It is noteworthy that the list of sporting events of national importance is arbitrarily decided by MoIB every year, without statistical justification or legal reasoning for the same. The underlying motive behind facilitating free-to-air broadcast of sporting events of “national importance” is that sporting events are indeed events of national importance. India is not a participant in the FIFA World Cup and hence the event is as meaningful to Indian audiences as the Royal Wedding. Even if we give credence to SPN’s “meri doosri country” campaign, the sentiment that sporting events are events of national importance is fallacious and requires an examination of the impact of such an event. Neither do sporting events have any objective impact on the national narrative nor are they events that the State must concern itself with due to the very nature of the activity i.e. sporting results do not have any empirical impact on society (both economic and socio-political) in the same way as other events of national importance such as elections or natural disasters do. From a pure viewer perspective, sporting events are merely sources of entertainment and do not impact the viewers in any way that needs supervision and/or regulation. If the MoIB feels that sporting events have national importance, then by that same logic, it must list reality shows like Big Boss and Jhalak Dikhla Jaa as events of national importance as well, since they also fulfil the same criteria as sporting events – telecasts that are enjoyed by a sizable chunk of the total population. The State has bigger fish to fry and the current market reality is that sporting events are the sole domain of the private sector and any forceful and arbitrary interference of the State must be questioned.

Notwithstanding the argument that by sharing the exclusive broadcasting rights with Prasar Bharati, the ownership of these rights is diluted and the steep price paid for acquiring these rights feels unjustified; the prevalent sentiment amongst all private broadcasters is one of agitation. The entire purpose of sharing this feed was to ensure that the populous who could not afford subscribing to the private broadcaster’s channels, could avail the broadcast via Prasar Bharati’s free-to-air broadcast on Prasar Bharati’s indigenous satellite network aka Doordarshan. However, under the Cable Network Regulation Act, 1995 (“CNR Act”), all private broadcasters were directed to compulsorily carry Doordarshan channels on their satellite network. The implication of this mandate was that one could avail the free-to-air broadcast of sporting events and avoid paying the subscription fees for the private broadcaster’s channels’ telecast of the same. It is ironic that a paying audience is migrating to a free channel when the free channel is mooching off of the feed of the paid channel. Since the primary source of recouping one’s investment in procuring expensive broadcast rights is advertisement revenue, the loss of the same due to migrating customers, is significant. In this instance, the mandatory sharing of broadcast signals by private broadcasters appears to be an act of unequivocal expropriation by a public-run body which is losing relevance by the day. The Supreme Court in its August 22, 2017 judgment in Union of India v BCCI, Star Sports & Ors., righted this wrong by directing that the mandatory carrying of Doordarshan channels on private DTH networks was counter-productive and as such the CNR Act would not be applicable.

Not long after the aforementioned Supreme Court judgment, MoIB issued a notice on April 12, 2018, which mandated that all cable operators and/or Multiple System Operators (“MSOs”) must prominently display the following caption on all channels broadcasting sporting events of “national importance” throughout the entirety of the broadcast:

The match/game can be viewed in free-to-air mode on DD Sports Channel, on DD FreeDish and DD’s terrestrial network.

This notice has drawn the collective ire of industry stakeholders due to the opacity in legislative intent behind such a direction. It is seen as a shameless attempt by MoIB to revive the fortunes of Prasar Bharati by displaying such a parasitic message. The notice has even antagonized former Union Minister of Information and Broadcasting, Mr. Manish Tewari. He has gone on record to say that “In an environment where we have 891 TV channels, is there a (special) case (to be made) for Prasar Bharati – is a question no one is asking. And if the answer is no, the entire act needs to be revisited”.

Apart from the expropriatory nature of this notice, the mandate specified in this notice has no logical basis as well. The act of displaying this message on the private broadcaster’s channel is a head-scratcher, in that the viewers of Doordarshan channels in any event do not have access to these “paid” channels. So who is this message meant for? The subscribers of the paid DTH channels? Does this notice suggest that paying customers of private broadcasters abandon paying for their DTH channels and instead access the free-to-air broadcast provided by Prasar Bharati for no cost? Not only is that blatantly anti-competitive, but also in direct contradiction of the Supreme Court’s August 22, 2017 judgment.

SPN has had to comply with this direction, as is evident from the newly added ticker/scroll at the bottom of the screen displaying the message in bold, throughout the entirety of both the semi-final matches of the FIFA World Cup. Not only has this hindered the viewer’s watching experience, but it has also compelled SPN to advertise for the benefit of a direct competitor – an unambiguous breach of free market ethics.

It’s a pity that SPN will have to continue displaying this abominable message on screen during the FIFA World Cup final. France v Croatia promises to be a cracker. Just don’t get distracted by Prasar Bharati’s latest attempt at encroachment.