SIDDHI DIGITAL SERVICES Vs ESPN SOFTWARE INDIA PVT. LTD.

JUDGMENT 1. These petitions involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. The basic fact of the matter would, however, be noticed from the case of ESPN i.e. i.e. Petition No.336(C) of 2012. 2. The Petitioner is a Multi Service Operator operating in the town of Sholapur in the State of Maharashtra. The Respondents herein are broadcasters. 3. On or about 17.2.2012 the Petitioner made a request to the Respondent, asking it to supply the signals of their respective channels. The said request has not been responded to. 4. Inter alia, on the premise that the Petitioner came to learn upon attending a Seminar of this Tribunal held at Goa that there may be certain deficiencies in the said letter of request, it made another request on or about 27.2.2012. Along with the said letter of request, the Petitioner annexed the following documents: “1. Postal License along with detailed address. 2. Newly stared channel payment details. (Maa Television Network Ltd.) Subscriber Direct Connectivity List. 3. List of local Operator’s with its Subscriber Base declared to us. 4. Detailed Map of area covered by Cable Network and affiliated LCO’s 5. Income Tax PAN Number. 6. Service Tax number details 7. Entertainment Tax Certificate, (copy of the last Challan of 8. 9. 10.

8. Entertainment Tax Department for the Month of February 2012)(English Translated copy Attached alongwith the copy of the original which is in Marathi) 9.Copy of Partnership Deed, Photograph of Signatory, True Copy of Registered Partnership Deed, Copy of Pan Card for signature Verification. 10. Copy of shop Act License. 11. Copy of the Fire Insurance Policy of the Headend. 5. The Petitioner would contend that it has about 1000 subscriber base; i.e. 806 through the LCOs and 256 by way of direct connectivity. According to it, it has entered into a subscription agreement with MAA TV on a subscriber base of 1000. 6. The Petitioner has also annexed a map showing that the optical fiber cable has been laid down by it in the entire town of Sholapur covering a distance of about 140 kilometers. The Petitioner has about 85 knots. One knot is utilized for the purpose of transmission of signals through one local cable operator. The Petitioner has also placed on record his service tax registration certificate showing payment of a sum of Rs.47790/- at the rate of 45 per subscriber (1062x45). 7. The Petitioner furthermore has brought on record the partnership deed and the PAN card number of the firm. It is said to have insured its equipments for fire insurance for a sum of Rs.49,46,048/- wherefor it has paid a sum of Rs.50,318/- by way of premium.

8. It has also supplied the list of the equipments installed at its control room. 9. The defences raised by the Respondent shortly stated are as under: 1. Keeping in view the fact that the Petitioner has laid about 140 kilometers optic fiber cable having 85 knots and keeping in view the population of the town of Sholapur and the number of satellite cable TV homes, it is inconceivable that the Petitioner would have only 1000 subscribers. 2. In a reply to an application filed under the Right To Information Act the number of subscribers of the Petitioner was disclosed to be 1,65,018. 3. The Petitioner has neither supplied the details of its subscribers nor did it obtain the permission for laying overhead cables. 10. The parties hereto have led oral evidence in support of their respective cases. Whereas the Petitioner in all these cases examined its managing partner Naresh Gurunath Sakhare, the Respondents have examined their authorized representatives – Shri Niteen Narendranath Phansalkar, Senior Manager-Affiliate Sales in Petition No.336(C) of 2012, Shri Sadaf Illyas, Senior Manager (Analogue Sales) in Petition No.337(C) of 2012 and Shri Ajendu Pattanshetty, Area Sales Manager in Petition No.338(C) of 2012.

11. Mr. Vikram Singh, learned counsel appearing on behalf of the Petitioner urged: (a) The Respondents having not responded to the Petitioner’s request for supply of signals of their channels within a period of sixty days, these petitions should be allowed having regard to the provisions contained in Clause 3.2 of the Telecommunication (Broadcasting & Cable Services) Inter Connection Regulations, 2004 (hereinafter called and referred to for the sake of brevity as `the said Regulations’).

(b) The requirement of laws being substantial compliance of the mandatory provisions contained in clause 3.2 of the Regulations namely: (i) the signal seeker would not be a defaulter and; (ii) it had complied with the requirements of Clause 9 of the Regulations; the Petitioner is entitled to a direction upon the broadcaster to supply signals of their respective channels. (c) The witness has examined on behalf of the Respondents in each of these cases having categorically stated that there was no infirmity in the request of the Petitioner, it is idle to contend that the Petitioner has made itself disentitled to obtain an appropriate direction from this Tribunal.

(d) The Respondents have a statutory obligation to verify the details of the subscribers, subscriber base of the seeker of the signals and they having not performed their statutory duties, they must be held to have failed to comply with the legitimate request of the Petitioner to obtain supply of signals. 12. Mr. Ganpathy, learned counsel appearing on behalf of the ESPN would submit: (i) From a perusal of the list of subscribers served by the Petitioner, it would appear that in many cases no house number etc. had been furnished which would have enabled the broadcaster to verify the same. (ii) As a signal seeker, the Petitioner was bound to supply the relevant data to the broadcasters and it having not done so, these petitions are liable to be dismissed. (iii) No reason has been assigned as to why an invoice of MAA TV for the month of December, 2011 has only been annexed with the request and had the latest invoice been produced, it might have been found that the subscriber base of the Petitioner is much higher. (iv) From the letter of the Respondent dated 11.6.2012, it would appear that the Respondent asked the Petitioner to supply certain data which admittedly having neither been complied with nor any response thereto having been given, the Petitioner has disentitled itself from obtaining any order from this Tribunal as prayed for or otherwise.

13. Mr. Nittin Bhatia, learned counsel appearing on behalf of the MSM Discovery submitted that : (i) In reply to the Petitioner’s request, the Respondent by its letter dated 3.10.2011 asked it to supply certain documents which having not been done, this Tribunal may not invoke Clause 3.2 of the Regulations in favour of the Petitioner. (ii) The Petitioner having not supplied the pole permission which is essential for obtaining supply of signals, this petition must be dismissed. 14. Mr. J.S. Bhatia, learned counsel appearing on behalf of Media Pro Enterprises Ltd. contended that the Petitioner, having not disclosed its true and correct SLR, is not entitled to any relief. The learned counsel, however, would contend that the Petitioner has made an offer to pay Rs.5,00,000/- per month by way of subscription fee and in that view of the matter the Petitioner may meet the authorized representative of the Respondent Broadcaster. 15. Clause 3.2 of the Regulations reads as under: “3.2 Every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator; [HITS operators and multi system operators shall also, on request, re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators.

Provided that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment. Provided further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request. [“Provided also that the provisions of this sub-regulation shall not apply in the case of a distributor of TV channels, who seeks signals of a particular TV channel from a broadcaster, while at the same time demanding carriage fee for carrying that channel on its distribution platform.”]

It is now well settled by various decisions of this Tribunal that Clause 3.2 provides for a restriction on the freedom of contract between the two parties and, thus, the conditions precedent therefor must be strictly complied with. 16. The principal statutory obligation on the part of the seeker of signals although would be that it should not be a defaulter and it has supplied a true and correct SLR as envisaged under Clause 9 of the Regulations, this Tribunal in a series of judgment has laid down that certain other informations/data are also required to be supplied. It is also a trite law that before an order/direction is issued by a Court of law the signal seeker must be a registered cable operator and its equipments installed in its headend/control room should be compliant to the standards laid down by the Bureau of Indian Standards. 17. The Petitioner having sought for signals of the broadcasters for the first time the question of its being a defaulter does not arise. The Petitioner has also furnished the SLR. 18. Mr. Ganpathy had taken pains to point out that in the said SLRs the details of the subscribers and/or addresses having not been furnished, the same must be held to be inadequate so as to enable the broadcaster to make verification thereof. 19. My attention in this behalf drawn to item No.17, 18, 19, 48, 49, 95 to 99, 112 to 118 and 130 to 133 to contend that the Petitioner has not given the details of the postal address of its subscribers. 20. Mr. Singh, however, would urge that Sholapur being an industrial area and it having Chawls, in many cases house numbers are not available. 21. Learned counsel would contend that the Petitioner is ready and willing for a joint survey with the broadcasters for the purpose of determining its subscriber base.

22. At the outset, I may notice the deposition of PW1: “Cross-Examination of Mr. Naresh Gurunath Sakhare by Mr. Teiveer Singh Bhatia, Advocate For Respondent (The witness is confronted with Page No.62 of the paper book)

Q6: Did you receive this letter dated 20.03.2012? A: No. It is incorrect to suggest that I have received the letter dated 20.03.2012 and since I have not supplied the details as sought for in the said letter. I am falsely denying the receipt of the same. (The witness is confronted with Page No 64 of the paper book) Q7: Did you receive letter dated 22.06.2012 of the respondent? A: Yes. Q8: Have you supply (sic) the information and clarifications as sought by the respondent in its letter dated 22.06.2012? A: No. Volunteers: I had already supplied this information in March, 2012.

Q9: Have you ever supplied postal registration certificates of the LCOs attached with your network as listed in Page No. 16 of the paper book? A: No. Q10: Is it correct that you have laid OFC in entire Sholapur? A: Yes.

Q11: Are the 25 operators mentioned by you in your list at Page No. 16 taking signals from you as on date'? A: Yes.

Q12: When did the petitioner start operations in Sholapur? A: June, 2011. Q.13. Do you have supply (sic) of signals of any other pay channels? A:Maa TV and Times Now package. Q14: What is the population of Sholapur? A: Approx. 6-7 Lakhs Q15: How many TV homes will be there in Sholapur?

V. About 15-20 thousand. Q16: You have stated here in above that you have laid OFC in entire Sholapur which according to you has about 15-20 thousand cable homes however, you have only declared a connectivity of about one thousand. I put it to you that your connectivity is much higher however, you are under declaring the connectivity? A: The connectivity declared by me is correct.

23. In his deposition RW1 did not say that the request of the Petitioner was responded to. In answer to one of the questions as to whether Mr. Shri Umesh Shimpi its Area Sales Manager ever met PW1, he stated he has to ask him. 24. Evidently, therefore, the request letter of the Petitioner was not adequately responded. He furthermore stated that he will have to check whether the letter of the Petitioner dated 27.2.2012 was supplied. 25. For the purpose of appreciating the respective contentions of the parties we may notice the following parts of the depositions of RW1.

“Q.10: Have you/respondent done any verification/survey to find out the subscriber base of the petitioner? A: The Sales Team has gone around and checked the areas. Q.11: Have you shared the report of the Sales team with the respondent or anywhere in the reply to the petition disclosed the said fact of verification/survey?

A: I will have to check. Q.12: Have you ever pointed any specific flaws or anomalies with respect to the informations given with the letter dated 27.2.2012, to the petitioner? A: Yes. After the Hon’ble TDSAT had directed us to meet up with Mr. Sakhre (Date to be checked), we met Mr. Sakhre at our office in Mumbai and requested Mr. Sakhre to produce certain more details further to the details already furnished in his letter dated 27.2 2012. In this regard, we had sent a letter to Mr. Sakhre, post the meeting. We are still awaiting the reply. The letter which we have sent, we will furnish the copy of the same. Q.13: Can you elaborate about the shortcomings in the application made vide letter dated 27.2.2012? A: Not as of now. ………………… Q.20: What do you mean by “material information”? A: By material information, I understand that the additional information we had asked Mr. Sakhre to furnish when we met on 11.6.2012 so as to ascertain his connectivity. It is incorrect to suggest that I am deposing falsely.”

26. RW2’s deposition is as under; “Cross-Examination of Mr. Sadaf llvas by Mr. Vikram Singh. Advocate For Petitioner I have been working with the respondent since the time of its inception, i.e., July 2011. I have been looking after the distribution of Media Pro channels in Sholapur.

Vol.: I look after the rest of Maharashtra and Goa also. There is an internal division of area and rest of Maharashtra does not include Mumbai, Thane, Raigarh and Vidharbha. (Attention of the witness is drawn to Pages 11 to 55 of the Paper Book.) Q.1: Have you received this letter dated 27.2.2012? A: Yes. Q.2: What have you done after receiving this letter? A: We have replied to this letter. Q.3: Can you show your reply to the said letter from the record? A: Witness points out to pages 62 and 63 of the Paper Book, which is the letter dated 20.3.2012. Q.4: When have you sent this letter? A. In March 2012 only. Q.5: Do you have any proof of sending this letter? A: There will be a proof of sending this letter. Q.6. Can you show it from the record? A: It is not on record. Vol.: However, the letter was also handed over in the meeting held on 20.6.2012 It is incorrect to suggest that the letter dated 20.3.2012 was never dispatched and hence there is no proof of sending the same on record. Q.7: Have you ever sent any acceptance or rejection letter accepting or rejecting the request of signals of the petitioner vide its letter dated 27.2.2012?

A: No such acceptance or rejection letter was sent since the matter was already under discussion for the signals to be provided subject to respondent being satisfied with the documents and declaration given by the operator. Q.8: Have you done any verification to find out the subscriber base of the petitioner after receiving letter dated 27.2.2012? A: We have enough market information that Sholapur has approx. 1 Lac cable households and we have suggested a survey which can be started in future to verify the connectivity. It is incorrect to suggest that respondent has not done any survey/verification to find out the subscriber base of the petitioner. Q.9: When have you done the survey/verification to find out the subscriber base of the petitioner? A: I do not remember the exact date but after receiving the request for IRDs. we have tried to verify the facts mentioned in the letter. Vol.: But we have not done any house to house survey as yet. Q.10: Have you ever pointed any specific flaws or anomalies in writing with respect to the information given with the letter dated 27.2.2012?

A: Yes. Q.11: Can you show it from the record? A. We have already highlighted it in our letter dated 20.3.2012 (page 62-63 of the paper book) and letter dated 20.6.2012 (page 64) and a letter dated 1.7.2012 (page 69). It was also discussed in the meeting dated 20.6.2012 with the petitioner.”

27. PW1 in his deposition in the case of MSM Discovery stated as under;

“Q.Do you have permission from the relevant government authorities to lay down the optical fiber cables (OFC) in the areas specified in the map at Page 11 of the Paper Book? A: No. Vol.: The authorities have told me that they can’t give me any permission in writing and they can’t also deny me. Q.2: Have you made any request to the relevant government authorities to lay down the optical fiber cables (OFC) in the areas specified in the map at Page 11 of the Paper Book?

A: Yes However, I have not placed it on the record. I can’t produce it right now but I can place it before the Tribunal on the next date of hearing. (Ld. Counsel for the respondent calls upon the witness to produce the permission demand letter to lay down the optical fiber cables (OFC) in the areas specified in the map.) ^ Q.3: Do you provide your signals to the consumers through overhead cable also? A' Yes. Vol.: We provide signals through RG-6 wires. However, we are using OFC only for the main line, coming from the control room. Q.4: Do you have pole permission from the Electricity Department in the area for use of overhead cables? A: No.

Vol.: The Electricity Department has told me that they can’t give me any permission in writing and they can’t also deny me Apart from the petitioner, there is only one other MSO operating in the area, i.e., Bhima Ridhi Digital Services (Attention of the witness is drawn to para 7 of his affidavit.) Q.7: Have you provided the necessary details/documents with regard to the certification showing the equipments used by you and your franchisee cable operators as prescribed under Cable TV Regulation Act, 1995?

A: Yes. I have filed it on the record also. Q.8: Can you show it from the record? A: The witness points out to pages 80 and 81 of the paper book. Q.9: I put it to you that document at pages 80 and 81 of the paper book is a list of equipments and not a certification? A: It is correct. Vol.: It is self certified. (Attention of the witness is drawn to pages 40 and 41 of the paper book.) Q.10 You have not mentioned name of the cable network along with the list filed by you at Sl. Mos. 4, 13, 20 and 21. Can you please explain? A: These operators have not decided the name of the network and area" running their business in their personal names. Q.11: Since when have you been running the cable TV business in the area of Solapur? A: Since June 2011.

It is correct that the channels of the respondent are popular in my area of operation Q.12: Can you please tell us as to what is the mode of transmission of signals of the petitioner? A: Overhead cables. Q.13: Have you provided the said information to the respondent as sought in the letter dated 21.11.2011? A: Yes. Q.14: Can you show it from the record? A: We have provided this information in our area map at page 42 of the Paper book. 28. Mr. Aliendu Pattanshetty was examined by the MSM Discovery. We may notice a part of his cross examination:

“Q.6: Have you done any verification to find out the subscriber base of the petitioner after receiving letter dated 27.2.2012? A: Yes. Q.7: When have you done the inspection? A: In April 2012.

Q.8: Have you informed the petitioner about the outcome of the survey? A. No. A: Have you ever pointed any specific flaws or anomalies in writing with respect to the information given with the letter dated 27.2.2012? Vol.: But we have verbally discussed about the list of the documents required. It is incorrect to suggest that I am deposing falsely.”

29. Mr. Singh has relied upon the decisions of this Tribunal in Petition No.395(C) of 2010 Eswara Communications (S Channel) Vs. MAA Television Network Ltd. wherein this Tribunal directed issuance of signals on the subscriber base specified therein subject to a joint survey. 30. Reliance has also been placed on Nirman and Associates Pvt. Ltd. vs. Star Den Media Services Pvt. Ltd. Petition No.228(C) of 2011 disposed of 12.10.2011, wherein this Tribunal held as under: “22.The basic requirements to enforce the statutory duty of a broadcaster to supply signals of its channels, therefore, would depend upon compliance of the said Regulations, namely :- (i) The signal seeker should not be a defaulter; (ii) It has furnished the details of the LCOs who are likely to join its network and/or details of the subscribers to whom it would supply its signals directly. 23. There cannot, however, be any doubt or dispute that the broadcaster has a right to verify the declaration of the signal seeker as regard its subscriber base and/or capacity of the MSO to distribute signals including the fact as to whether he has set up an appropriate head end or not. A broadcaster may also seek other requisite informations which may be necessary for the purpose of supply of signals on reasonable terms and on a non-discriminatory basis.” 31. It was furthermore observed: “36. A broadcaster having regard to the language used in Clause 3.2 of the Regulations wherein no form has been prescribed, making of a request in a form prescribed by the Broadcaster cannot be held to be imperative in character. Substantial compliance of the provisions of the Regulations, therefore, in our opinion shall subserve the purposes.”

32. Reliance has also been placed by Mr. Singh on Sky Vision vs. MSM Discovery, Petition No.273(C) of 2011 disposed of on 4.8.2011 wherein it was held that in a case where the all verifiable details have been supplied, a direction to supply the regards may be issued on a broadcaster, stating: “21. The term `Subscriber Base’ having been defined, it is difficult to accept the submissions of Mr. Mishra that in terms of the provisions of the said Regulations, the MSOs were bound to disclose their entire Universe. When a Multi Service Operator retransmits signals through the local cable operator, they enter into negotiations for determining the subscriber base. The MSO is statutorily obligated only to disclose the subscriber base as negotiated and not the details of all the subscribers of LCOs.”

33. There is no dispute with regard to the law laid down in the aforementioned decisions of this Tribunal. 34. It is, however, beyond any doubt or dispute that for the purpose of supply of signals of its channel to a signal seeker, the broadcaster would be entitled to ask for the pole permission granted by a competent authority.

35. In Sree Devi Enterprises vs. Channel Plus, Petition No. 156(C) of 2010 disposed of on 29.9.2010 this Tribunal has emphasised the need of pole permission. 36. Recently in Sree Devi Digital Systems, A.P vs M/S. Maa Television Network Ltd., in Petition No.51(C) of 2012 disposed of on 14 August, 2012 the said decision of Sree Devi (supra) has been applied, stating : “6. Submission of Mr. Sampath to the effect that pole permission is not necessary is stated to be rejected as this Tribunal in Sree Devi Enterprises vs. Channel Plus, Petition No. 156(C) of 2010 disposed of on 29.9.2010 clearly held that such pole permission would be necessary.”

The Petitioner, therefore, in our opinion is obligated to obtain the pole permission. 37. Strangely enough, the Petitioner states that the concerned authority had refused to give such permission in writing which means that oral permission could be given. 38. The Petitioner furthermore has not given the following informations to ESPN as was sought for by it by its letter dated 11.6.2012: “During the meeting, we had requested for following details & you confirmed that the same will be sent to us. 1) Complete name & postal address of your 25 sub operators 2) Details of Sub-operators Entertainment License copy of your 25 sub operators

3) List of subscribers with complete postal address of 25 sub operators duly certified by Concern Authority. 4) Copy of latest Entertainment tax payments receipt by you 25 sub operators. Therefore, we request you to kindly provide us complete and accurate information in relation to the above at earliest. After receipt of above information, we can verify the details in due course & confirm the date & time for our next meeting.” 39. Mr. Singh submitted that the Petitioner has supplied the complete name and postal addresses of the sub-operators, but it is not possible for it to obtain the details of sub-operators entertainment licenses, list of subscribers with complete postal address certified by concerned authority and copy of the latest entertainment tax payment received by its sub-operator. 40. The Respondent is not correct in asking the Petitioner to supply the complete postal address of its subscribers certified by concerned authority as no such authority has been recognized under any notification or in any circular letter issued by the Ministry of Information & Broadcasting or by the TRAI. 41. In a case of this nature, however, I am of the opinion that it is also necessary to verify the subscribers list furnished by the Petitioner. 42. This order is being passed keeping in view the fact that the Petitioner has laid the optical fiber cable throughout the town of Sholapur which according to the Respondents and which is not denied or disputed, is a thickly populated area.

43. The Tribunal keeping in view the definition of `subscriber line report’ and `subscriber base’ as contained in Clause 2(p) Clause 2(q) of the Regulations ordinarily would leave the parties to negotiate between themselves so as to arrive at an agreed subscriber base. 44. It may be true that joint survey is one of the means which has been recognized as one of the procedures for determining the subscriber base of a Multi Service Operator or a local cable operator, as the case may be. 45. It is, however, in the facts and circumstances of the case, not possible to arrive at a subscriber base by this Tribunal. As indicated heretobefore Mr. Singh has contended that keeping in view the subscriber base in respect of MAA TV as also the payment of entertainment tax on calculation whereof it would appear that the Petitioner has a subscriber base of 1062, direction should be issued to the Respondent herein to enter into an agreement on the aforementioned basis but in this case such a guess work is not possible to be made. 46. In this case pursuant to a query made by a third party, the Petitioner has been shown to have a higher subscriber base for the purpose of payment of entertainment tax vis a vis the number of LCOs it has which is very substantial in nature.

It reads as under:

S. No. Name of Sub Division Total Consumer of Electricity 1 2 3 1 City A Sub Division, 28133 Sholapur. 2 City B Sub Division, 21246 Sholapur. 3 City C Sub Division, 26717 Sholapur. 4 City D Sub Division, 35623 Sholapur. 5 City E Sub Division, 53299 Sholapur. Total- 165018 Each case as is well known must be determined on the factual matrix involved therein. No straight jacket formula can be laid therefor. 47. PW1 in his deposition for the first time stated it has also been subscribing the Times Now Channel. On what basis the subscriber base for the agreement with Times Now channel has been entered into is not known having not been disclosed. 48. One more factor has to be kept in mind, namely, that the Petitioner has laid optical fiber cable throughout the town of Sholapur. 49. On the Petitioner’s own showing that the said town comprises of an industrial area as it has its own chawls. As indicated heretobefore, Mr. Ganpathy has argued that there are a large number of households which might have cable TV but had not been shown in the SLR by the Petitioner.

50. Taking a liberal view of the matter, I am of the opinion that the verification of the subscriber base should be directed to be conducted within two weeks. 51. The Petitioner must also, within the said period supply the pole permission inasmuch as it is difficult to conceive that the Municipality and/or the electricity undertaking would refuse to give some permission in writing. 52. With the aforementioned directions and observations these petitions are disposed of with no order as to costs.

(S.B. Sinha) Chairperson October 31, 2012 `anu’