In Conversation With Rajkumar Varier, Head of Public Policy & Regulatory Affairs, ABP Network and ABP Studios

Many Congratulations on featuring in BW Legal World’s General Counsel 100 list for the year 2020. We’d love to know about your journey so far, most memorable experiences, and your thoughts on receiving this Award. (Please feel free to share your overall thoughts. You may include why Awards and Recognitions are important/or not.) 

Thank you so much for the accolades. It’s really been a matter of big honour and am truly humbled by the recognition bestowed on me. I had been a Telecom Lawyer for almost 15 years (till 2014) and it had been a great journey to have completed the 360 degree circle touching all facets of Telecom starting from Fixed Line Telephony, Mobile Telephony, National and International Long Distance, Broadband and Enterprise Business, International Telecom License Markets of Africa, Guernsey and Jersey, DTH business, Payments Systems Business and many more. I was truly consecrated to have been part of the biggest industry issues/disputes that shook and changed the course of the Telecom Industry starting from WLL (M) Litigation, V5.2 Issue, Gurgaon – Delhi Boundary Dispute, Microwave Access and Backbone Charges, 3G ICR, AGR, Spectrum Scams, License Cancellations, Subscriber Verification Penalties, Sim Renting Issues, Non-CLI cases and so on. While 14 years were spent in mastering a specialized area and to be amongst the handful lot of SME on Telecom Regulatory issues, a feeling of incompleteness started developing as being an SME does not help you to become a General Counsel and the same would require venturing into wider areas of law. Also going by the kind of stakes involved and being a one-man army of the specialized issues which I was in charge turned to some extent to my disadvantage. Though some consolation did come when I was given additional responsibilities of few areas of DTH and Airtel Money and which were added to the profile. In fact, being an SME lead to labelling of myself as being a specialist for the niche area of Hyper technical and complex Telecom Regulatory Laws which gets coupled with a perception of not experimenting with you on other areas of law. While such perception may help in Professional Practice but the same acts as the biggest hurdle coming to your way to propel yourself as a General Counsel. The deadlock was to be resolved since the desire to grow and groom and attain the status of a General Counsel or to be an independent Practicing Counsel outweighed everything else. Though an effort was made to continue with Airtel as an Independent Counsel however since the same was not working out it was decided that it’s better to complete the corporate journey and attain the rank of a General Counsel and to start working towards attaining the same.

One fine day it was felt and the decision was taken that it’s time to break the umbilical cord and to move on from the guarded and protected umbrella of Airtel to have a new set of learnings which can help to fulfil the said desire. This was despite suffering a dilemma, hesitation and challenge of leaving the well-established territory of domain knowledge, being an SME, well known in Industry and most importantly to be the front-ending face of Airtel for Industry and getting the biggest honour of representing the unicorn company in telecom. It also came at a cost of abandoning the legacy of learnings from Telecom over 15 years. The barter was made to head towards and venture into unknown pastures of Media and Entertainment Business which was going to be big and were to hit the headlines for the next half a decade and which continues to be the case. It was like the end of the era and the beginning of a new dawn.

I took up the offer with Samsung as a General Manager and I must say that it was a big learning on how the Global Companies should function. It also gave me new areas of learnings of IPR, Customer Service along with my forte of Litigation. With a small but extremely enriching stopover at Samsung which was into Handset and Electrics and White Goods Business, (for about 1 ½ Years) my journey in the Media and Entertainment (M&E) Industry commenced with DEN giving me exposure to the Distribution Industry which almost connects with the last mile i.e. the end consumer through LCO. This was coupled with already known and experienced Broadband Business and to top up with the cherry of enjoying adventure Driven Football Team action of “Delhi Dynamos”. The most important thing in the bargain was to have attained the title of Group General Counsel within over a year and a half of leaving Airtel. It’s a different matter that it is only at a later point of time that one realizes that titles hardly make any difference and a lawyer should only strive and aspire for is the learnings in the process and to perfect the art of excellence in the deliverables. 

The above stint followed with my 3 Year Tenure at Star where I was blessed with a bouquet of experience of (almost all genres except News) and of all sectors of M &E namely the Pay Broadcasting, Digital OTT, Fox Star Studios / Production Business, Regional Entertainment, Infotainment, Sports, Music and so on. The only left out genre was the News and now being part of ABP could experience and treat myself with learnings of not only News (both Linear and Digital) but also the Production / Studio Business as also the baby steps progressing towards the evolving Gaming Business. In a nutshell, I must thank God and my destiny as a real blessing for having had 360 degree rotational and revolutionalising experience both in Telecom and M& E Industry and to be able to complete a full circle of experience with all stakeholders in the value chain of Media and Entertainment Industry (M&E Industry).

Once again thank you very much and it really means a lot to receive an award from BW Legal World and I thank the esteemed jury from the bottom of my heart for finding me eligible and worthy for the same. I don’t want to mince any words to state that I simply love to receive awards and also love giving them. The Two awards which I remember is when I got a Rising Star under 40 award from Legal Era when I was in DEN and had also gone to collect the Best Telecom In-house Legal Team Award on behalf of Airtel. I also feel honoured to have been nominated this year by Legal Era for Best in House Media and Entertainment Counsel. Such recognitions confers bigger responsibility and I promise of keep getting better and to work harder to live up to the title.

What do you attribute your success to? What would you say has helped you emerge as a top General Counsel in your industry?

I must say that I had been very lucky with the exposures which I could get and to be at the right place at right time. It has to be God’s grace and a true blessing that the last 2 decades of my life has been spent working on Front Page Issues of Telecom and Media and Broadcasting laws. I was privileged to be part of leading and decision making in the critical aspects of these high stake litigations including strategy building, grounds of challenge, counsel selection, the timing of various actions, planning and preparation, choice of forums, remedies and various other multiple facets while handling the complexities involved with them. Most of them had an impact of changing the very course and landscape of the industry and also leading to a tectonic shift of policies and guidelines and the overall way the Industry functioned.

Coming now to my Industry i.e. the M&E Industry I must say that from the point I entered M and E Industry in 2016 it has witnessed formidable and tectonic shifts and which still continues in my ongoing and incomplete journey. These changes can be categorized under the heads of Competition, New technologies, Disruptions, Disputes, Regulations, Force Majeure of pandemic, Content Censorship, and development of jurisprudence on contours and limits of reasonable restrictions on the freedom of speech and expression. I was very fortunate to have got the opportunity to play a role and to be a part of each of these changes while acting and representing different stakeholders of the value chain namely the Distributor, Broadcaster, Production, Digital, OTT, Gaming, Sports and finally now the News Genre.

The Tariff Order and the New regulations of TRAI whereby consumer choice has been given supremacy and also has provided for an assured return of Network Capacity Fee (NCF) for the distributor is one big Regulatory shift wherein I could represent all three stakeholders of Distribution (assured return of Network Capacity Fee) , Pay Broadcasting ( Disputes on Carriage Vs Content and Fixation of MRP of Pay Channels and Bouquet / Ala Carte Price Linkage) and Free to Air Broadcasting ( Fixing and Capping the Carriage Fee Charges).

While representing DEN - The Fixation of NCF was a big relief for the distribution industry who invested heavily incurring the cost of digitalization however were unable to recover it or to even attain breakeven. While working with DEN it was fortunate to have been given the task to spearhead the said objective through the industry association AIDCF and which finally ensured the passing of Regulations whereby the minimum guarantee of NCF was secured for the distribution industry. Before passing of these regulations the distributor (MSO) was sandwiched between broadcasters and LCO and was unable to secure its collections from the ground i.e. from the LCO and also failed to meet and honour the commitments made to the broadcaster towards the content fee agreed (which used to escalate year on year close to 25%) leading to disputes and deactivations. Thankfully the same could be achieved before I bid goodbye to the MSO Distribution Industry.

Post securing these Regulations for the Distribution Industry especially the MSOs (while working for DEN) something else was destined. That was to represent Star which suffered the side effects caused on account of the very same Regulations to the pay broadcasting industry. The Regulations which guaranteed an assured return to the distributor had the “cause and side effect” of regulating and fixing the content pricing. In other words, it had the effect of depriving the broadcaster to have freedom of pricing of its content or creations. I ended up being part of STAR India and also was privileged to be part of core team which prepared challenge to the Tariff Order and Regulations (which can be called as the mother of all Litigations of the Broadcast Industry) and which helped in postponing the implementation of the Regulations whereby “freedom of pricing content/channel” was taken away from Broadcasters. The challenge was on the ground that the regulator TRAI can only regulate and is empowered to determine the “carriage” aspects however did not possess jurisdiction to regulate the “content” or in other words the “channel pricing”. The “status quo” order passed by Honourable Madras High Court was enjoyed for a good long term of close to 2 ½ years before the challenge ultimately failed before Honourable Supreme Court. The time borrowed through “status quo” Order was utilized to get accustomed and to get used to the new regulation and which helped the pay broadcasting industry in fixing up the channel rates and the bouquet rates and to get accustomed and able to survive under the new Tariff and regulatory regime. My journey in Star also helped me to have an in-depth understanding and application about a gambit of laws and regulations impacting not only the broadcasting sector but also the production house business of Fox Star Studios, digital/OTT business, which was at the cusp of evolving and is in the course of cannibalizing the Linear Broadcast business.  It also was a journey that helped me to learn about the various complexities of various genres of sports, entertainment, infotainment, regional channels and so on. The dynamics of laws and regulations in this sector was so extensive and the application of the same to different practical situations to arrive at a business-oriented solution had been an awesome challenge and a fantastic experience and journey.  My three years in STAR had been extremely enriching and eventful and was also a period when the broadcasting sector witnessed sea changes wherein all stakeholders had to re-arrange its affairs and the way business was carried out.

In 2019 I moved to ABP Networks and again was beneficiary of the opportunity to be part of major changes for the FTA Channels. The Biggest Cost of Distribution which for any FTA channel was arbitrarily / monopolistically fixed by Distributors i.e. the MSOs and DTH Operators was addressed to a great extent with the passing of Regulations by TRAI in the form of NTO 2.0, wherein the “Carriage Fee” was capped to Rs 4 lakhs. In other words, a must-carry principle upon payment of Regulated charges could be ensured.

Further, Journalism and News were redefined by certain channels in the Pandemic times and which were going against Journalistic ethics and Principles. It is a great honour to be working with an organization and defending and upfront taking a stand that such journalistic practices are not supported or subscribed to and the same to be discouraged. There had also been several issues with the way the Television Rating Agency functioned and the irregularities and corrupt practices exercised therein investigations in which are still going on. The last two years has been an action-packed year for the News Broadcast Industry.

In a nutshell what helps you to attain a position in the Industry depends upon the kind of issues that you get to handle, which again is a matter of pure luck and the timing to be at the right place at the right time and to be able to do so is the most important thing which helps in attaining what I am being blessed today.  

What advice would you have for others who want to set off in a similar direction?

It took a lot of time for me to learn my lessons and I never in my life had imagined attaining what I could and what I have accomplished as of today. If I have to capture the essence of the same, I think the thing that matters the most is to enjoy whatever one does and the result automatically follows. While we do so, we must also Program our mind for success, Get over with our fears and stop hesitating. We should start having a point of view and also have the ability to voice and express it fearlessly. I still remember my first briefing file given by Mr, Ramji Srinivasan- Senior Advocate who handed over the brief to me at 9.00 pm in the night and the Senior to be briefed was none other than Mr P Chidambaram. I was informed that I will have to lead and he would not be able to make it on account of some preoccupation. I could not sleep the entire night which was spent in mastering the file. The next morning once the briefing got over and I could see the satisfied Senior ready to argue, it gave me immense satisfaction coupled with the joy when Mr Chidambaram confirmed and informed me that the briefing went off well to Mr Srinivasan. From that date, I don’t think of having missed out on working opportunities with any of the legends and Doyens of the Bar across the country for over two decades. In fact, I got to work on International Opportunities as well and worked closely with lawyers in Guernsey and Jersey. Each and every step that you take fills you with confidence and boosts your morale and which you master and deliver with ease as you progress.  The said ease and confidence gets reflected in you and which is rewarded with the faith of your clients to confer bigger challenges and opportunities to you. Every such event fills you that you can repeat and better the art. Similar is the joy and the blood rush which you enjoy when you first argue your matter. While such opportunities knocked on my door at a much later stage, which is almost 3 years after being enrolled, one cannot underestimate or be ungrateful to formative years when you learn the various other basic essentials and also the tricks of the trade. The learnings start from stapling a document to photocopying, attending reception calls, Client correspondence, lifting file bags, Case law Indexing, Maintaining Case diaries, from taking Passover to arguing short matters. No job should be considered small and there is a need to perfect the art of even the smallest of things. As we call the joy of little things. Opportunities may keep coming and going but what matters is how many of them you are able to sense, grab/convert in your favour (including conversion of situations as opportunities) similar to converting penalty shootouts and turning them to a goal. In today's time, it is also popularly called as “Aapda main Avsar”. There is no substitute for hard work and reading which is a lifetime process and pre-requisite just like we breathe air and drink water. With every progress, one makes one has to also learn to be humble, respectful and humility to be practised as a virtue to last one’s lifetime. The practice of reading empowers you to master your thought process, to be logical, structured and to strive for solutions. It also acts as a fertile ground for fresh and original ideas. The pith and substance or the prerequisite of a corporate lawyer is the in-depth understanding of all aspects of the business, risks, challenges and opportunities faced and in which the corporate entity is engaged in. Mere understanding of the law without having the ability to practically implement in a business situation would be of no help and would not enable one to succeed in a corporate world.

Would you please share with our readers the array of work you handle at your organization. What is your in-house team size, and would you please allow us a little peek into your routine at work?

A substantial chunk of our work comprises of content-related concerns. A generous time is spent on defending the editorial related complaints either before the NBSA, IMC or the defamation cases. Since there is no pre-censorship or S&P in the news the logic, rationale and defence of a telecast gets built at a later stage. Further no transaction happens without being documented so there is substantial contracting work which also keeps us busy. The News Broadcasting Industry is highly regulated and TRAI keeps us busy preparing responses to its Consultation Papers and there are several Industry issues where we ABP take a lead through different Industry Associations of NBA, DNPA, FICCI, IAMAI, CII, IBF etc. On a daily routine, there is one or the other issue with various Departments that we work with including Digital, Studio, Gaming Team, Finance, Editorial, HR, Admin, Marketing, Technical and so on. There is never a dull moment and routine is always electrifying and filled with joy and fun to deal with some or the other complex issues.

We have a total of 7 people in the Legal and Regulatory Team. Working with ABP has provided me with an opportunity to represent the Industry on pressing concerns whether the potential and likely interference of Broadcast spectrum on account of proposed 5G Auctions, The IT Intermediary Rules Amendment of 2021, Amendments to Uplinking and Downlinking Guidelines, Cable TV Act and Copyright Act, Freedom of Press Global Ranking of India aspects, Personal and Non-Personal Data Protection Laws, Labour Law amendments, Replicating the International trends in Australian and EU Countries for pricing and payments for News i.e. Level Playing Field between the Publisher and Platform, Signal Interference issues and so on. The Journey goes on and still continues and surely is filled with much more excitement.

In what ways has your business sector/industry been impacted by the pandemic and the subsequent second wave? How long would it take for the industry to revive?

Like all other sectors, the Broadcast Industry had its own set of issues while dealing with the pandemic. News as a commodity is never sold to the end consumer and it has not been able to command the price which it deserved. The entire Free To Air business is dependent and founded upon what is popularly called by one of my best friend colleague as the three “R’s” i.e “Reach”, “Rating” and “Revenue”.  The cost of Carriage up to the last mile to the end consumer - to ensure reach of your channels has been the biggest cost burden faced by FTA Channels. The recent Regulations (popularly called as NTO 2.0) to some extent did help to reduce or bring balance to the said burden and was promulgated just a few months before the Pandemic. Unfortunately because of the fresh challenge in multiple forums, the same has not yet been given effect to. The M&E industry faced several challenges during the pandemic and several demands still remain unfulfilled with no respite. The government definitely need to give attention to ensure its survival. While we were able to get the declaration of News as an “essential services” as the same ensures the fundamental right of a citizen to be informed to be protected like health but it was not compensated or kept at par with other essentials in any manner. “News” as Genre did grow and FTA channels did saw a spike in viewing, however, the same could not gain traction or replicate the growth on advertisement revenues.  Consequent to the badly shaped economy and unmarketable products. The suspension of advertisement shoots during lockdown also adding to miseries. It was expected that being an essential service and having offered “free to air” to the last mile consumer after incurring substantial costs should have resulted in the benefits of tax concessions (such as relaxing GST rates and dates, postponing TDS payments, relaxing income tax slabs) the same however did not happen. It could also have been helpful that the News as a service if being declared essential could have been mandated to be necessarily and compulsorily carried by all distribution platforms at no or lesser cost, Again an area completely ignored and overlooked. At least the unwanted and burdensome compliances could have been done away with or relaxed. (Companies Act and other statutes) some of which did happen but not of much help. The entire Industry was faced and laced with Cash flow problems, halt of production activities, cancellation of sporting events and scheduled advertisement. Further there had been no waiver/reduction of Satellite and bandwidth charges.  The cash flow was also impacted because of delayed payments by Government and State Advertising bodies. It was also expected that some Waiver of Free Dish Fee / WPC and NOCC charges would be done or some kind of moratorium would be granted however none came our way. There was no increase by the Government of the advertisement rates for news channels providing essential services for the electronic medium. There are several other issues that still continue and the second wave has again landed us with uncertainty. Fortunately, we have been able to sail through till now.

What have been your key learnings as the legal gatekeepers of your company from the year past and what are your predictions for the future?

The COVID has definitely made us smarter and has made all of us realize the importance of a Force Majeure Clause. Thankfully in all our important and critical arrangements the Force Majeure Clause were well crafted and the benefit of which could be availed by us. Secondly, as a Legal Gatekeeper for the company in these situations, it is to generate flexible correspondence as on most occasion the partners are understanding and also willing to cooperate to help you sail through the crisis. Generating the right set of correspondence in the right tone is what is important. Also we have started getting into Flexi contracts with possible scope for renegotiation and escape routes keeping in mind all unforeseen eventualities.  

Any significant legislation or decision of the top court that has been a welcome change or has been rather mistimed in your opinion. (Labour Code/Amendments to IBC/Foreign seated arbitration for Indian Companies/any other.)

The Labour Code which was strongly anticipated to be effective from 1st April has fortunately been postponed as any arrogant implementation would have left most of us unprepared and being non-compliant. I seriously have doubt of the proposed codes being unambiguous and whether the same factors in the digital economy. While it might have unified several scattered legislations into one by calling it a so-called simplification, however, it has not got over the legacy provisions and also does not factor in the changes triggered by the pandemic. To my understanding while it may be bringing benefit to a certain class of workers who were not covered earlier however it may be doing more damage when it comes to capping of reliefs or benefits to the employee to a 50% and above being now treated under wages. The restructuring may result in a reduction of payouts and the benefits which was otherwise enjoyed. This can discourage employers to come up with employee-friendly schemes.

Now when it comes to judgements I have noticed that the zeal to enforce a strict and literal interpretation or understanding of the law it has happened in the justice delivery system that judgments have been rendered counterproductive to the economy and businesses. Many of the flourishing businesses and prospective and promising startups had to wind up operations or their growth prospects were severely impacted and curtailed. Such decisions have only acted like a spanner in the wheel and in most instances turned to be counterproductive to the economic cause. A lot of this was also on account of government stubbornness by taking unreasonable, unfair stands before a Court of law and on most occasions the damage was belatedly felt making the industries to be put to a ventilator or oxygen support to reach down a point of no return to their glories. AGR Judgements which was very close to my heart till the time I served Airtel is one of them. I once brought it back to life when a Rock-solid judgement on merits was turned down for want of jurisdiction of a specialized Tribunal by the Hon’ble Supreme Court. We could get over it by having taken our chances before High Court jurisdiction. A status quo was enjoyed and a huge liability because of an unfair interpretation was being postponed even after I left. Unfortunately, the proceedings got short-circuited and with a disastrous result for not only the Industry but also the Government. Further many of the legislations have been implemented in a manner to solely attain the motive of revenue maximization by the government completely turning a blind eye to the actual intent and objectives of the statute. The same is the story of any industry be it Telecom, Manufacturing, Media and Entertainment, Aviation etc. There are several judgements that have completely eliminated the scope of discretion which can be exercised by a government or its officer as he would always be in a state of dilemma and flux to choose between a decision making which furthers the practical and economic cause as against the cause of revenue maximization by the government. There is a strong potential that any smallest concession extended in the interest of the economy or the industry by a government officer may be construed as a state largesse to the private sectors or which can potentially smell of a ‘scam’ or ‘corruption’. Thus, it strongly discourages, demotivates and has an overall chilling effect on any brave government officer to take such positive steps. Such decision making also creates panic, scare and threat to the foreign investors. While the trend now we see is the pendulum swinging between the choices of Ease of Doing Business, Make in India etc. on the one hand and an Aatmanirbhar Bharat on the other hand which is now heading toward poornata nirbhar with the second wave. We need some real dynamic decision making at the Policy Level with strong execution to get over the calamity which is taking the shape of fresh strain every day like that of a Mayavi Rakshasa.

 An experience, matter or person that left a lasting impression on you.

There is no one particular instance which I want to specify but all Seniors who I consider as the topmost legal brains in their own ways and having their own versatile style enriched with wisdom, advocacy skills, court craft, entrepreneurship, relentless hard work, dedication and austerity towards the profession have always benefited me with a lasting experience and it’s a constant process of learning to develop build and adopt the best out of them and build in your own personality. Getting repeated opportunities to work with them inculcates the habit of being well-read, being on top of the law, ready with precedents and the ability to connect the factual dots. The advantage that one gain as a result of being continuously exposed to such sharp brains and legal luminaries and legends is to be positively infected with an unfulfilled desire to match their thought process and a constant state of hunger and thirst to learn, gain and execute them in our daily professional lives. The most important of all is to perform and to be graceful in all actions. Needless to say, that it’s a lifelong process and has to be practised with persistence to achieve, master and conquer the peaks of these qualities and achieve success. 

Company Law Departments of the future: LegalTech tools that are transforming the traditional methods of in-house legal work in India. Please list AI tools you are using or being used in-house for legal research, case management, contract lifecycle management, contract review, document reviews etc)

Yes, I Fully agree that it is extremely important to keep pace with the “March of technology” a word which coined way back in 2001 when the WLL dispute was being fiercely fought between the CDMA and GSM Lobbies.  Even the basic E Mail applications starting from Outlook, IBM Notes or a MyPumi of Samsung there has been so many changes all around. What is also important is to understand the extremely dynamic state of affairs and the short lifespan of various business and technology models. The speed of technology and ideas leads to making most of them obsolete, irrelevant, and unviable and with a short shelf life. It is therefore very critical to build up business models which can convert, transform and adapt to the changing business situations and scenarios. What is paramount and foremost is to develop such characters and abilities, which can help an individual to attain and sustain growth as a legal counsel in the rapidly changing corporate world. Learning and the ability to adapt with speed to change (which is the only constant) is the ultimate determinative factor to your success.

What keeps you busy when you’re not working? Any favourite book or movie/series that you'd like to recommend to our readers.

My family comprises of my wife and 3 children. So when I am not working I just will get into anything (games, conversations, cooking, reading, workout or just to have fun in whatever ways) to ensure quality spending of time with them and to enjoy seeing the kids grow up. I definitely am a restless mind and cant hook up with any leisure activity for long. No series or book, in particular, to mention since I am kind of infidel to stick to any one of them and I generally lose interest after some time when it comes to series / Movies. Books definitely I follow now through listening (while taking a walk) through Storytel an app which I recently subscribed to. The advantage is you can keep yourself physically active as well while listening to the book. I also like motivational speech and follow certain Digital News on youtube as also the TED talks.