Petition No. 295(C) of 2014 (M.A. Nos. 166, 223-232, 240-245, 256, 261 and 266 of 2015) and Petition No. 526(C) of 2014 (M.A. Nos. 167, 206 of 2015, 233-237, 246, 247 and 257 of 2015). Case: Noida Software Technology Park Ltd. Vs Media Pro Enterprise India Pvt. Ltd. and Ors.. TDSAT (Telecom Disputes Settlement & Appellate Tribunal)
| Case Number | Petition No. 295(C) of 2014 (M.A. Nos. 166, 223-232, 240-245, 256, 261 and 266 of 2015) and Petition No. 526(C) of 2014 (M.A. Nos. 167, 206 of 2015, 233-237, 246, 247 and 257 of 2015) |
| Counsel | For Appellant: Vivek Chib, Ruchira Goel, Asif Ahmed, Joby P. Varghese, Rishab Kapur, Ankit Prakash and Kushal Gupta, Advocates and For Respondents: Meet Malhotra, Sr. Advocate, Tejveer Singh Bhatia, Upender Thakur, Rohan Swarup, Kunal Vats, Ravi S.S. Chauhan and Pallak Singh, Advocates |
| Judges | Aftab Alam, J. (Chairperson), Dr. Kuldip Singh and Bipin Bihari Srivastava, Members |
| Issue | Cable Television Networks (regulation) Act, 1995 - Sections 11 (2), 11(1)(a)(iv), 11(1)(b)(iv), 11(1)(d), 11(2), 2(1)(k), 4A; Code of Civil Procedure, 1908 (CPC) - Order I Rule 10, Order VI Rule 17, Order VII Rule 11; Constitution of India - Articles 19, 19(1)(a), 19(1)(g), 300A; Copyright Act, 1957 - Sections 31, 39(A); Indian Contract Act, 18... |
| Judgement Date | December 07, 2015 |
| Court | TDSAT (Telecom Disputes Settlement & Appellate Tribunal) |
Order:
Aftab Alam, J. (Chairperson)
INTRODUCTION:
-
This case raises some very basic issues concerning the broadcasting services. The Interconnect Regulations are founded on the principles of "must provide" and non-exclusion. A broadcaster must give its signals to every distributor, indeed on reasonable terms. The Regulations further mandate the broadcaster to publish a Reference Interconnect Offer (RIO) setting forth the technological and commercial terms on which it would give its signals to a distributor. The RIO is a sort of offer to the world at large and if a distributor expresses willingness to take the broadcaster's signals on the RIO terms the broadcaster must give its signals to the distributor without ado (provided of course the distributor's system are technologically compliant with the regulatory prescriptions!). At the same time, the Regulations also seem to allow for inter-connect arrangement between the broadcaster and a distributor, based on mutually negotiated agreement. To cap it all, the Regulations dictate parity and non-discrimination in the inter-connect arrangements that a broadcaster may enter into with different broadcasters. These demands, that to some may appear incompatible or even conflicting and that go into the making of the Regulations give rise to a number of questions. Does the RIO have precedence over mutual negotiations and does it circumscribe the scope of negotiations and limit it to the framework of the RIO within which negotiations may be held to agree upon some changes in the terms of the RIO? Does this view interfere with the broadcaster's freedom to contract on the basis of voluntary negotiations said to be guaranteed under the Constitution and further sanctioned by the Copyright Act? Is the converse of the above the correct view, that for entering into interconnect agreement, mutual negotiation has primacy and RIO is the fall back device, in case negotiations fail to satisfy both sides? But in that case if the broadcaster does not disclose to everybody the terms of the agreement based on negotiation with a certain distributor, how are the rights of parity and non-discrimination of other similarly situated distributors impacted? What is the parameter to judge similarity between different distributors of TV signals? What weight should be assigned to mutual negotiations, RIO and parity and non-discrimination in the over-all scheme of interconnection to best sub-serve the intent and purpose of the Regulations. These are some of the main questions, along with some ancillary issues that come up for consideration before the Tribunal.
-
THE CASE OF THE PETITIONER:
-
-
The petitioner is a head-end in the sky (HITS) operator and a distributor of TV channels within the meaning of the Regulations. It makes the grievance that it is being discriminated against from the beginning and its very entry in the broadcasting sector was sought to be blocked at the threshold. According to the petitioner, the present petitions are a sequel to its earlier petition before the Tribunal and the present proceedings may be viewed as continuation of its efforts to find a fair place in the broadcasting sector on the basis of parity and non-discrimination.
-
THE FACTS
i. [Before the Present Proceedings]:
-
-
The petitioner earlier came to the Tribunal in Petition No. 166 (C)/2013 making the grievance that Media Pro was unreasonably denying it the supply of signals. At that time Media Pro used to be the "agent or intermediary" of several broadcasters, including two major broadcasters of the Star and Zee groups of channels and it altogether controlled the distribution of more or less seventy (70) channels of different broadcasters. As their common agent, it also acted as a "content aggregator" and offered bouquets for distribution by bundling together channels of different broadcasters. In that position it held a dominant position and great bargaining power in the broadcasting sector. In that case the Tribunal found that Media Pro was denying signals to the petitioner for non-complying with certain technical conditions insisted upon by it that were beyond the regulatory prescription. The Tribunal, accordingly, held that the denial of signals by Media Pro to the petitioner was unreasonable and by judgment and order dated 12 September 2013, allowed the petition observing and directing as under:
"To us it, therefore, appears that the insistence for higher norms than the ones provided in schedule IV is simply a bogey and an afterthought to somehow deny the signals of TV channels to the petitioner.
In light of the discussions made above, we find no merit in the objections raised by respondent No. 2 for refusing to provide signals of its TV channels to the petitioner. We accordingly direct respondent No. 2 to enter into an Interconnect Agreement with the petitioner as provided under Clause 3.2. of the Interconnect Agreement within three weeks from today and to supply activated decoders and viewing cards to the petitioner for viewing its channels".
-
Following the Tribunal's judgment, the petitioner repeatedly asked Media Pro to disclose the terms and rates at which it (Media Pro) was providing the signals of TV channels under its control to other similarly situated distributors of TV channels so as to form the basis for negotiations for an agreement between the two sides. The petitioner based its demand for disclosure on the provisions of the Interconnect Regulations, 2004, specifying reasonableness and discrimination in the formation of the interconnect agreement. Media Pro, however, flatly refused to disclose to the petitioner the terms and rates at which it was providing signals to other distributors, taking a somewhat curious position that under the order of the Tribunal it was obliged to give the petitioner the signals of its channels only in terms of its Reference Interconnect Offer (RIO) as provided in clause 13.2B.1 of the Interconnect Regulations, 2004. Media Pro maintained that its RIO was completely non-discriminatory; it applied to all distributors uniformly and Media Pro charged all distributors of TV channels who took signals from it on RIO basis, the same rates as mentioned in the RIO.
-
The petitioner was thus faced with the situation where the only option given to it was to take the Media Pro signals on its RIO terms and rates. According to the petitioner, for want of the pay-channels on its network it was suffering a loss of over Rs. 8 crores every month in payments of bank interests and satellite space rent and to get the pay channels was a matter of survival for it at that time. It, accordingly, agreed to accept the Media Pro RIO terms, albeit under protest and without prejudice to its rights, and on 1 October, 2013 executed the RIO based agreement for the period 1 October 2013 to 30 September 2014.
-
By then the three weeks' time within which Media Pro was directed to enter into the interconnect agreement with the petitioner was already over. Hence, in order to safeguard its position Media Pro filed an application1 casting the responsibility for the delay in execution of the agreement on the petitioner. However, on 3 October 2013 when the application came up before the Tribunal, the petitioner had already executed the RIO based agreement and it was, therefore, stated on behalf of Media Pro that a signed copy of the agreement received from the petitioner was under its examination and the agreement was hoped to be finalized within 10 days. On 30 October 2013 when the application again came up, the Tribunal was informed that the parties had entered into an agreement in terms of the Media Pro RIO and the application was, accordingly, dismissed as infructuous.
-
One or two things need to be noted here. The RIO that Media Pro offered to the petitioner and which the petitioner eventually signed had only ala carte rates of channels; the RIO did not mention any bouquets of channels nor did it give any bouquet rates. There was thus a clear dichotomy between its RIO and the very large number of negotiated agreements that Media Pro entered into with many distributors, almost all of which would be for bouquets of channels.
-
As regards the petitioner, it needs be noted that having executed the RIO based agreement it never told the Tribunal that it was forced to enter into that arrangement even though there were occasions for it when MA No. 264 of 2013 came up before the Tribunal.
-
Be that as it may, even after execution of the RIO based agreement, the petitioner kept asking Media Pro to disclose to it the terms and conditions and the rates of its channels in its negotiated agreements with similarly situated distributors or at least the concessions that it offered to other distributors of TV channels in its published agreement that was available on its website. To all such requests Media Pro responded by curt and indignant rejections. According to Media Pro, its RIOs for all delivery platforms that were uploaded on its website were fully compliant with the applicable laws, including but not limited to the TRAI's Regulations; that the terms and conditions of its RIOs applied uniformly to all its affiliates who subscribed to its channels on RIO terms; further that it was not obliged to disclose to the petitioner or to any third party, the rates and conditions of interconnect agreements executed by it with other distributors on the basis of mutually negotiated terms. In regard to sharing the details of its negotiated agreements, it said, a little sanctimoniously that it was in fact legally bound by its obligations of confidentiality to not share the same with the petitioner or with any third party(vide Media Pro's email dated 13 January 2013 addressed to the petitioner).
-
It is, thus, clear that from the beginning the two sides had completely different ideas regarding the nature of the interconnect agreement and the extent of negotiations leading to the agreement.
-
A few months...
To continue reading
Request your trial