NIRMAN & ASSOCIATES PVT LTD Vs ESPN SOFTWARE INDIA PVT. LTD.

ORDER This petition has been filed by the petitioner to direct the respondent to provide the signals to the petitioner and also sign the subscription agreement for the area of Tinsukia, Dibrugarh, Nalbari and Horhat, Barpta, Dhubri, Diphu, Golaghat, Haikkandi, Karimgang, Kokrajher, Mongoldoi, Nagaon, North Lakhimpur, Silchar, Sivasagar and Tezpur on reasonable and non-discriminatory basis. However, during the hearing of this case, the petitioner submitted that he is limiting his request for supply of signals to Tinsukia alone.

2. The petitioner is a company incorporated under the Indian Companies Act, 1956 and registered as cable operator in terms of the applicable laws. The respondent is a broadcaster of sports genre of channels.

3. On 23.06.2010, the petitioner had requested for supply of signals through decoders to the respondent. The relevant portions reads as under :

“Sir, we intend to extend our cable TV business in areas under Tinsukia Head Post Offices and sub Post Offices in its account or territorial jurisdiction of Tinsukia Head Post Office and are interested in retransmitting the signals of your channels through cable operators, who intend to affiliate with us as soon as we get signals of major Broadcasters for our new control room at Tinsukia. You are therefore, requested to a kindly provide us signals of your channel through decoders.”

The same request was renewed on 10.02.2011, where it was specifically mentioned : “We currently have no affiliate cable operators in Tinsukia although 9 (nine) number of cable operator with a total subscriber base of 245 (Two hundred and forty five) have expressed their willingness to join as soon as we get signals from you.”

“Kindly consider this letter again as a request in terms of clause 3.2 of the Interconnect Regulations of TRAI. However, even after sufficient time of the expiry of the statutory period of 60 days from the date of sending our last letter i.e. on 11th August 2010 we have not received any response from your end. We hope that you shall provide us signals on mutually agreed terms & conditions which are reasonable as well as non-discriminatory basis as possible or else we will be left with no other option than to approach the appropriate Court of Law.”

Again by way of email dated 16.02.2011, the petitioner reminded the respondent. The email attached the SLR showing the names of nine cable operators, their business area and declared points with 245 connectivity. The SLR showing the following details is shown below: “SUBSCRIBER LINE REPORT SN Name Business area Declared points 1 Birendar Gupta Sripuria Pather, TSK 30 2 Sunil Borgohain New Development Area, TSK 27 3 Pranab Rajkonwar Rangpuria, Tsk 32 4 Daraj Hussain Bor Bazar, Tinsukia 25 5 Nobendu Deb Subachani Road, Tinsukia 35 6 Hemanta Gohain Borguria Area, Tinsukia 26 7 Bilab Debajit West Sripuria, Tinsukia 18 8 Gobinda Roy Congress Colony, Tinsukia 22 9 Abinash Sharma Gelapukhuri, Tinsukia 30 245”

4. The counsel for the petitioner stated that the petitioner enclosed a postal registration certificate valid from 10.08.2010 for a period of 12 months. The address of the control room was also enclosed with the request of the petitioner.

The respondent for the first time gave the reply to the request of the petitioner on 21.02.2011 through its email where it interalia, mentioned that : “We vide this letter would also like to make it amply clear that your request for decoders for Tinsukia, Dibrugarh, Nalbari and Jorhat will be acted upon by us only after we have mutually agreed and closed the matter pertaining to Guwahati region as we cannot keep the issues open and provide the decoders for the areas which are still under negotiations and want of any subscriber base.”

5. The counsel for the petitioner has argued that at the time of applying for the supply of signals my registration was valid and it was valid on the date of filing this petition on 15.07.2011. It applied for renewal on 27.08.2011, a copy of the same was filed alongwith this petition. He submitted that as on today the cable registration has been renewed. However, a copy of the same has not been filed on the record and he is ready to file the same, if required.

6. The learned counsel further contended that it was a straight case of denial of the signals in terms of clause 3.5 of The Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004, which reads as under :

“3.5 Any broadcaster, multi system operator or HITS operator, as the case may be or any agent/ any other intermediary of the [broadcaster, multi system operator or HITS operator, as the 25 case may be] to whom a request for providing TV channel signals is made, should either provide the signals on mutually agreed terms to the distributor of TV channels who is seeking signals, or specify the terms and conditions on which they are willing to provide TV channel signals, in a reasonable time period but not exceeding sixty days from the date of the request. In case, the [broadcaster, multi system operator or HITS operator, 26 as the case may be] or any agent/ any other intermediary of the [broadcaster, multi system operator or HITS operator, as the 27 case may be] to whom a request for providing TV channel signals is made, turns down the request for TV channel signals, the reasons for such refusal must also be conveyed within sixty days from the date of the request for providing TV channel signals so as to enable the distributor of TV channels to agitate the matter at the appropriate forum. Explanation The time limit of sixty days shall also include time taken by the broadcaster to refer the distributor of TV channels, who has made a request for signals, to its agent or intermediary and vice versa.”

7. On the other hand, the respondent submitted that the petitioner has not given the details of cable operators like address, their contact numbers and other necessary details so that the connectivity of these LCOs could be verified by the respondent.

8. The counsel for the respondent further submitted that the Managing Director of the petitioner Shri Rana Saidur Zaman had applied on February 24, 2011 at 1.30 p.m. for supply of signals in the name of Nirman and Associates Pvt. Ltd. and for the same area at 4.20 pm applied for other in the name of Bramputra Visual Entertainment Pvt. Ltd., just with a difference of 3 hours for large number of area without giving the correct details of LCOs in these areas. He contended that he had not denied the supply of signals to the petitioner and it was only one aspect where the petitioner has not entered into the agreement yet, but we have raised other issues also as is clear from its reply. The petitioner has not supplied the full information as required under the regulation. We have asked for the laying out of the cable, which was also not supplied.

9. However, the counsel for the respondent submits that this Tribunal has given certain directions in Petition No.228 (C)/2011 (Nirman & Associates Pvt. Ltd. Vs. Star Den Media Services Pvt. Ltd.) dated 12.10.2011 for the supply of signals to the Tinsukhia area. If the similar directions are given in this petition, the respondent was ready to abide by the same.

The counsel for the petitioner agrees that he has no objection to abide by the directions of this Tribunal if similar directions as in Petition No.228(C)/ 2011 (Nirman & Associates Pvt. Ltd. Vs. Star Den Media Services Pvt. Ltd.) dated 12.10.2011 are given.

10. In Petition No.228(C)/2011, this Tribunal had given the following directions :

“For the reasons aforementioned, we are of the opinion that interest of justice would be sub-served, if the following interim directions are issued to the parties for compliance: (a) The petitioner shall supply details of the LCOs proposed to be served by the petitioner alongwith their addresses, area of operation, contact numbers and subscriber base within a period of one week. (b) The respondent will verify the data submitted by the petitioner within a period of two weeks. Within the same period the respondent may inspect the head-end of the petitioner at Tinsukia. (c ) Thereafter, negotiations may be made between the parties within one week and in the event of settlement between the parties, a subscription agreement may be entered into subject to such terms and conditions which would be reasonable and non-discriminatory. (d) In case no settlement is arrived at, the position of each party may be put up in form of minutes of meeting and should be submitted to this Tribunal within a period of six weeks.”

11.In view of the statement of counsels of the parties made before me and without going into the contentions of both the parties, I am of the opinion that end of justice will be met if similar directions as at para 10 above & as agreed by both the parties are also issued in this petition.

12. This petition be posted “for directions” after six weeks on 07.02.2012. In the meantime, if settlement is arrived at, liberty is granted to mention.

……………..... (P.K. Rastogi) Member /NC/