Star India Pvt. Ltd vs Sea T.V. Network Ltd. & Another

Being aggrieved by the direction issued by the Telecom

Disputes Settlement & Appellate Tribunal on 24.8.2005

ordering Star India Pvt. Ltd. appellant herein to supply

signals of its bouquet of channels by entering into an

Agreement with Sea T.V. Network Ltd. (respondent No.1

herein) on such terms and conditions which are not

unreasonable, Star India Pvt. Ltd. has come to this Court by

way of this civil appeal.

Star India Pvt. Ltd. is a company under the Companies

Act, 1956. On 8.2.2005 Star India Pvt. Ltd. entered into

Distributor Agreement with Moon Network Pvt. Ltd.

(respondent No.2). M/s Moon Network Pvt. Ltd. under the

Agreement was a distributor. Under the said Agreement there

was a recital. Under that recital Star India Pvt. Ltd. had

stated that it was an authorized distributor of the

Satellite T.V. channels namely Star Plus, Star Movies, Star

World, Star News, Star Gold etc. collectively referred to

as New Channels Bouquet. Under the Agreement Moon Network

Pvt. Ltd. a Multi-System Operator (for short MSO) was

engaged in the business of transmission of TV channels

through cables. Under the Agreement Moon Network Pvt. Ltd.

was described as a distributor. Under the said Agreement

Star India Pvt. Ltd. appointed Moon Network Pvt. Ltd. as

the distributor on a sole and exclusive basis. The

distributor was required to distribute the subscribed

channels in the territory of Agra. Moon Network Pvt. Ltd.

was thus appointed as the sole and exclusive distributor of

the subscribed channels through the cable network owned by

it and operated by it in the territory of Agra. It is

interesting to note that under the Agreement, Star India

Pvt. Ltd. excluded the distribution of the subscribed

channels through DTH, CAS, Broadband or any medium other

than through a ground cable network. The said Agreement came

into effect from January 1, 2005. The Agreement is valid

up to June 30, 2007, unless terminated in accordance

therewith. Under the Agreement Moon Network Pvt. Ltd. could

execute an affiliation agreement directly with its

affiliate(s) in such form and manner to be approved by Star

India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd.

could use publicity material given to it by Star India Pvt.

Ltd. Under the Agreement Moon Network Pvt. Ltd. agreed to

employ competent staff and/or independent contractors for

the purpose of the contract. Under the Agreement Moon

Network Pvt. Ltd. was recognized by Star India Pvt. Ltd. as

a MSO engaged in the business of transmission of T.V.

channels through ground cables. Under clause 6.3 of that

Agreement it was clarified that Star India Pvt. Ltd. made

no representations and/or warranties relating to continuity,

content and the reception quality of the programmes on the

subscribed channels and that Star India Pvt. Ltd. will not

be responsible if a Delivery Failure is caused by factors

not directly within the control of Star India Pvt. Ltd.

Under the Agreement Star India Pvt. Ltd. agreed to deliver

the Decoders to the distributor Moon Network Pvt. Ltd.

However, under the Agreement it was stipulated that Moon

Network Pvt. Ltd. in turn would not re-sell or act as a

dealer in respect of the said Decoders. Under clause 16 of

the Agreement the parties agreed that Moon Network Pvt. Ltd.

as a distributor will act as an independent contractor and

that the Agreement shall not create principal-agent

relationship between Star India Pvt. Ltd. and Moon Network

Pvt. Ltd. That, neither party shall hold out to the rest

of the world any such relationship.

To sum up, Moon Network Pvt. Ltd. was appointed as an

exclusive agent of Star India Pvt. Ltd. in the territory of

Agra. At the same time the Agreement recognized the status

of Moon Network Pvt. Ltd. as an MSO engaged in the business

of transmission of TV channels through ground cables. This

aspect is important since in the present controversy one of

the main issue which arises for determination is the

difference between, transmission including re-transmission

of signals, on one hand and the expression providing TV

channels on the other hand which expression finds place

under the Telecommunication (Broadcasting and Cable

Services) Interconnection Regulation, 2004 (hereinafter

referred to as Interconnection Regulation).

At this stage we may state that although the above

Agreement dated 8.2.2005 remains in force up to 30.6.2007

for some unknown reasons Star India Pvt. Ltd. has entered

into a distributor Agreement on 4.1.2006 under which Moon

Network Pvt. Ltd. are appointed as distributor. In the

present case we are only concerned with the interpretation

of the Interconnection Regulation 2004, and therefore, we

are not required to go into any other aspect. However, it

is made clear that in such cases the Appellate Tribunal

ought to have called for the Distributor Agreement, if any,

and not decide conceptually they do not go by the facts of

the individual cases. In the present case at one stage it

was argued vehemently by the appellants that Star India Pvt.

Ltd. had entered into an Agreement with Moon Network Pvt.

Ltd. and that Moon Network Pvt. Ltd. was therefore exclusive

agent for the territory of Agra. It was argued that Star

India Pvt. Ltd. was required to appoint an agent in

different territories looking to the economies of scale of

operations carried out by Star India Pvt. Ltd. throughout

India. However, when the Court perused the contents of the

Agreement we find that the Agreement is a Distributor

Agreement. As stated above the Agreement expressly stated

that Moon Network Pvt. Ltd. was an independent contractor

and that the relationship between the parties was on

principle to principle basis and that there was no

relationship of principal and agent, as contended by the

appellants before the appellate Tribunal.

On behalf of the Star India Pvt. Ltd, Shri Mukul

Rohtagi, learned Senior Counsel submitted that the appellant

Star India Pvt. Ltd. is a broadcaster of TV channels and

that Moon Network Pvt. Ltd. was an MSO for supply of TV

channels for distribution in the city of Agra. He contended

that when Sea T.V. Network  respondent No.1 herein

approached Star India Pvt. Ltd. for supply of signals in

that territory; Sea T.V. was directed to approach Moon

Network Pvt. Ltd. However, Sea T.V. Network did not agree

to take the signals from Moon Network Pvt. Ltd. since Moon

Network Pvt. Ltd. was also a competing MSO. According to

the learned counsel under the Interconnection Regulation

framed by TRAI there was no prohibition on Star India Pvt.

Ltd. in the matter of appointment of any MSO as its agent

on exclusive basis for a given territory. Reliance was

placed by learned counsel on Regulation 3.3 read with

Explanatory Memorandum. He contended further that any such

prohibition would be hit by Article 19(1)(g) of the

Constitution. It was further urged that the above

Agreement/arrangement was in consonance with the

Interconnection Regulation since Star India Pvt. Ltd. was

entitled to align its business in a lawful manner under

Article 19(2)(1)(g) of the Constitution. The learned

counsel further submitted that under Regulation 3.3 we get a

clarification of what is implicit in Regulations 3.1 and

3.2, namely that a broadcaster is entitled to give signals

through an agent, who can also be a MSO in a vertically

integrated industry so as to reduce high distribution costs.

That, a broadcaster can enter into any business arrangement

model which protects its financial interest since there was

no prohibition on such arrangement. According to the

learned counsel appointment of an MSO as an agent per se is

not prejudicial to competition and if at all it is

prejudicial it should be established in each case by the

complainant. According to the learned counsel appointment of

a MSO as an agent is necessary since he knows the ground

realities. He is not in a position to ascertain the number

of subscribers and that the Interconnection Regulations

themselves therefore contemplate and permit an overlap

between the agent and the MSO. It was submitted that the

cable industry in India has grown in an environment which

has provided inadequate protection to broadcasters. It is,

therefore, disorganized ultimately having an adverse effect

on the consumers. According to the learned counsel there is

in the Indian market large-scale under declaration regarding

number of subscribers which results in an inequitable

sharing of subscription revenues. According to the learned

counsel on a proper interpretation of the Interconnection

Regulation it is clear that a broadcaster is obliged to

provide its signals to all distributors of TV channels on

non-discriminatory basis. But the manner of providing

signals has been left to the discretion of the broadcaster.

According to the learned counsel the Interconnection

Regulation for establishing a must provide regime under

which every distributor is entitled to the signals of every

broadcaster on account of the heavy distribution costs

widespread under-declaration of number of subscribers and

the fragmented nature of the market the Regulations have

given the broadcaster the flexibility to decide whether to

provide signals directly or through an agent. According to

the learned counsel therefore, there is no particular

business model prescribed by the said Interconnection

Regulation, and therefore, the Tribunal had fallen in error

in holding that a distributor of TV channels cannot be an

agent as provided for in Regulation 3.3. According to the

learned counsel there is no such prohibition in the

definition clauses nor in the pre-clauses of the

Interconnection Regulations. According to the learned

counsel the Tribunal has erred in regarding distributors,

agents, MSOs and cable operators as entirely separate and

distinct categories. According to the learned counsel under

the said Interconnection Regulations there is a considerable

overlap between each of the above categories because each

of the above entities is capable of discharging different

functions. The learned counsel, therefore, placed heavy

reliance on the Explanatory Memorandum in support of his

contentions particularly, in respect of his contention that

the mode of providing signals by the broadcasters is left to

an individual broadcaster who may provide its signals

directly or through a designated agent/distributor or any

other intermediary as long as such provision is fixed on non-

discriminatory basis. According to the learned counsel the

Tribunal has failed to consider the Explanatory Memorandum

and the responses of the TRAI to the comments of the stake

holders. According to the learned counsel the Tribunal has

failed to appreciate that the term Distributor of TV

channels includes all the entities involved in reaching

the broadcasters signals to the ultimate consumer. It is

urged that the impugned judgment has the effect of

restricting the scope of clause 3.3 on the basis of an

erroneous interpretation of the definition of the word

agent in Interconnection Regulation 2(b). According to

the learned counsel the impugned judgment is erroneous since

it renders clause 3.3 meaningless since the said

interpretation disallows a broadcaster from providing

signals through an agent. According to the learned counsel

clause 3.3 is a clarification to clauses 3.1 and 3.2 which

states that the consumer must have access to every

broadcasters channel on a non-discriminatory basis, but the

manner of achieving this object has been left to the

broadcaster to decide. According to the learned counsel the

definition of the word agent in the Interconnection

Regulations do not provide the manner in which the agent

would make available the TV channels to the distributor.

According to the learned counsel the words make available

in Regulation 2(b) would include giving of Decoders and

supply of signals through cable feed. According to the

learned counsel there is no functional difference between re-

transmission of signals and making available the TV

channels. According to the learned counsel there is hardly

any difference in the quality of signals that can be

received by a distributor through Decoders and through a

cable feed. For a distributor to obtain TV channels through

Decoders the distributor must possess a dish-antena for

downloading the signals from the satellite of the

broadcaster and a divider which divides the signals into

various channels. The distributor also requires separate

Decoders for each channels with an activated viewing card.

A

distributor who obtains the signals through the cable

amplifies it and distributes it to the other distributors

and subscribers through the ground cable. That, the quality

of signals transmitted through the cable is comparable to

the quality of signals obtained through the Decoders.

According to the learned counsel a distributor who obtains

signals through Decoders is required to invest in the

infrastructure consisting of Decoders, dividers, modulators

and amplifiers whereas a distributor who obtains signals

through the cable has not to make such investments and at

the same time the same quality of signals can be obtained

through the cable feed which requires investments in

amplifiers, splitter and cabling. According to the learned

counsel the interpretation accepted by the Tribunal vide

impugned judgment would require an MSO to invest huge

amounts in the requisite infrastructure and obtain signals

through Decoders, and therefore, the distinction made by

the Tribunal between re-transmission and making available TV

signals is not appropriate since the same definition applies

to agents appointed by MSOs. Accordingly, it was submitted

on behalf of the appellant that the Tribunal had erred in

holding that providing signals to a distributor through an

agent who is also a distributor is per se discriminatory.

According to the appellants discrimination in cases of

overlap of functions should be established on case to case

basis and if in a given case if it is found that the agent

is conducting itself in a manner prejudicial to competition

then clauses 3.4 and 3.6 which provides for redressal would

apply.

In order to consider the above arguments we quote

hereinbelow the relevant provisions of the Interconnection

Regulations dated 10.12.2004 :

2. DefinitionsIn this regulation, unless the context otherwise requires:

(b) agent or intermediary means any person including an individual, group of persons, public or body corporate, firm or any organisation or body authorised by a broadcaster/multi system operator to make available TV channel(s), to a distributor of TV channels;

(h) cable service means the transmission by cables of programmes including re-

transmission by cables of any broadcast television signals;

(i) cable television network means any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment designed to provide cable service for reception by multiple subscribers;

(j) distributor of TV channels means any person including an individual, group of persons, public or body corporate, firm or any organisation or body re-transmitting TV channels through electromagnetic waves through cable or through space intended to be received by general public directly or indirectly. The person may include, but is not limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator;

(m) multi system operator means any person who receives a broadcasting service from a broadcaster and/or their authorised agencies and re-transmits the same to consumers and/or re-transmits the same to one or more cable operators and includes his/her authorised distribution agencies.

(n) service provider means the Government as a service provider and includes a licensee as well as any broadcaster, multi system operator, cable operator or distributor of TV channels.

3. General provisions relating to non- discrimination in interconnect agreements

3.1 No broadcaster of TV channels shall engage in any practice or activity or enter into any understanding or arrangement, including exclusive contracts with any distributor of TV channels that prevents any other distributor of TV channels from obtaining such TV channels for distribution.

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; 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

3.3 A broadcaster or his/her authorised distribution agency would be free to provide signals of TV channels either directly or through a particular designated agent or any other intermediary. A broadcaster shall not be held to be in violation of clauses 3.1 and 3.2 if it is ensured that the signals are provided through a particular designated agent or any other intermediary and not directly. Similarly a multi system operator shall not be held to be in violation of clause 3.1.and 3.2 if it is ensured that signals are provided through a particular designated agent or any other intermediary and not directly.

Provided that where the signals are provided through an agent or intermediary the broadcaster/multi system operator should ensure that the agent/intermediary acts in a manner that is (a) consistent with the obligations placed under this regulation and

(b) not prejudicial to competition.

ANNEXURE A

EXPLANATORY MEMORANDUM

xxxxxxxx xxx xxxx xxx

Discriminatory Access

3. In India, competition for delivery of TV channels is not only to be promoted within the cable industry but also from distributors of TV channels using other mediums like direct to home (DTH), head ends in the sky etc. It is important that all these distribution platforms are promoted so that they provide consumers with choice. It would be very important that at this stage vertical integration does not impede competition. Vertically integrated broadcaster and distribution network operators would, in the absence of strong regulation, have the tendency to deny popular content to competing networks or to discriminate against them.

4. One method of checking these practices is to stop at the source any chance of anti- competitive behaviour by ruling that vertical integration will not be allowed. This route could, however, impede investments and in the long run adversely affect competition. The only DTH platform today has a degree of vertical integration. There is another pay DTH platform which is awaiting approval from the Government that also has a degree of vertical integration. DTH is the platform most likely to provide effective competition to cable operators. Restriction of vertical integration could therefore, lead to a situation where the DTH roll-out could be affected and hence competition. It is for this reason that the alternative route has been looked at; controlling anti-competitive behaviour wherever it manifests itself. These issues are dealt with in the following paragraphs.

5. Generally, TV channels are provided to all carriers and platforms to increase viewership for the purpose of earning maximum subscription fee as well as advertisement revenue. However, according to some opinions, if all platforms carry the same content, it will reduce competition and there will be no incentive to improve the content. Some degree of exclusivity is required to differentiate one platform from the other.

6. Exclusivity had not been a feature of Indias fragmented cable television market. However, the roll-out of DTH platform has brought the question of exclusivity and whether it is anti competitive to the forefront. Star India Ltd and SET Discovery Ltd do not have commercial agreements to share their contents with ASC Enterprises on its DTH platform and at present are exclusively available on the Cable TV platform. ASC Enterprises claims that the future growth will remain impacted by the denial of these popular contents. Space TVa joint venture of Tatas and Star, is also planning to launch its digital DTH platform. It has applied for licence to the Government for the same. The DTH services have to compete with Cable TV. If a popular content is available on Cable TV and not on the DTH platform, then it would not be able to effectively give competition to the cable networks.

Must provide through whom?

11. There is high cost involved in the distribution of TV channels if the market is fragmented. To reduce the distribution costsbroadcasters/ multi system operators should be free to provide access in the manner they think is beneficial for them. The must provide of signals should be seen in the context that each operator shall have the right to obtain the signals on a non-discriminatory basis; but how these are provided - directly or through the designated agent/distributoris a decision to be taken by the broadcasters/multi-system operator. Thus the broadcaster/multi system operator would have to ensure that the signals are provided either directly or through a particular designated agent/distributor or any other intermediary.

Quality of TV Channel Signals

13. Some cable operators had apprehended that in case TV channel, signals are provided through cable and not directly then the quality of transmission could deteriorate and accordingly it was suggested that agents must provide services through IRDs. The Authority through this regulation has framed the principle of non- discriminatory access, which also includes non-discriminatory access in terms of quality of signals. Operators can seek relief if it is found that the quality of their signals is being tampered with.

Safeguards for Broadcasters

14. In this context it must be recognised that certain basic criteria must be fulfilled before a service provider can invoke this clause. Thus the service provider should be one who does not have any past dues. Similarly, provisions for protection against piracy must be provided.

However, the content provider must establish clearly that there are reasonable basis for the denial of TV channel signals on the grounds of piracy.

Discrimination in providing TV channel signals

17. In case any distributor of TV channel feels he/she has been discriminated on terms of getting TV signals compared to a similarly based distributor of TV channel, then a complaint must be filed with the broadcaster or multi system operator, as the case may be. In case the complainant is not satisfied with the response, he/she may approach the appropriate forum for relief.

We do not find any merit in the civil appeal for the

following reasons :

Firstly, we do not find any error in the judgment

which has held that in providing signals to a distributor

through an agent who is also in turn a distributor is

per se discriminatory. We agree with the contention of

Mr. Rohtagi learned senior counsel that in the case of

overlap of functions to be performed by each entity

under the Interconnection Regulations like a Distributor,

MSO, agent/ intermediary, one has to go by the facts of

each case and the terms of Agreement between the

broadcaster and his agent cum distributor. Every

contract under the Interconnection Regulations has two

aspects. One concerns the commercial side whereas the

other concerns the technical side. There is no

difficulty for the commercial side. If the broadcaster

appoints an agent on the commercial side to collect the

statistics of the number of subscribers or for

distribution of Decoders there is no dispute. On the

commercial side when an agent is appointed by the

broadcaster that agent need not be from the Operation

Network. Such an agent normally is not a technical

service provider. The difficulty arises when the

broadcaster as in the present case appoints or enters

into an agreement with a distributor, who in turn is an

MSO and who in turn has his own business because in such

a case such an agent-cum-distributor is also a competitor

of the MSO who seeks signals from the broadcaster. We are

living in a competitive world today. If under the

Interconnection Regulations an MSO is entitled to receive

signals directly from a broadcaster, if directed to

approach his competitor MSO then discrimination comes

in. The reason is obvious. The exclusive agent of a

broadcaster has his own subscriber base. His base is

different from another MSO in the same territory. If that

another MSO has to depend on the Feed to be provided by

the exclusive agent of the broadcaster then the very

object of the Interconnection Regulation stands defeated.

We are satisfied that even technically the quality of

signals receivable through the Decoders is different from

the quality of signals receivable through cable feed. In

the present case the broadcaster has appointed Moon

Network as its Distributor for the territory of Agra. In

the present case the Agreement provides that Moon Network

Pvt. Ltd. will operate on principle to principle

basis and will not be an agent of Star India Pvt. Ltd.

(Broadcaster). In that Agreement it is expressly provided

that Moon Network Pvt. Ltd. would not be entitled to use

any other medium except ground cable. Under the

Distribution Agreement the Broadcaster has appointed the

Moon Network Pvt. Ltd. as the sole and exclusive

distributor of the subscribed channels. It is important

to note that under the Interconnection Regulations

exclusivity of contracts stands eliminated.

Notwithstanding such regulations the broadcaster in the

present case has appointed Moon Network Pvt. Ltd., who

is also an MSO, as the sole and exclusive distributor of

the subscribed channels through the cable network owned

and operated by Moon Network Pvt. Ltd. in the territory

of Agra. (See clause 1.1). This is where the difficulty

comes in The object of Interconnection Regulation is to

eliminate monopoly. If Sea T.V. respondent No.1 carries

on business in competition with Moon Network Pvt. Ltd.

and if it is to depend on the Feed provided by its

competitor and if the quality of the signals available

through that Feed is poorer than the quality of the

signals available through Decoders, then the Tribunal is

right in holding that the above arrangement is per se

discriminatory. It is important to bear in mind that Sea

T.V. Network and Moon Network Pvt. Ltd. are in turn MSOs.

When Moon Network Pvt. Ltd. is appointed as sole and

exclusive distributor with a direction to distribute the

signals through the infrastructure of Moon Network Pvt.

Ltd. then the quality of the signals receivable by Sea

T.V. Network may not be the same as the quality of

signals through Decoders. In this connection fudging of

data (voice and picture) is possible. Even the speed of

data-transmission to Sea T.V. Network could get affected.

In such cases it is the subscribers of Sea T.V. Network

who would be adversely affected. The picture quality

would be affected. The reason for this is also obvious.

Let us say that Moon Network Pvt. Ltd. receives about

1000 signals from the broadcaster. Out of 1000 signals it

is open to Moon Network Pvt. Ltd. to distribute the

majority thereof to its own subscribers and the balance

could be transferred through the cable to Sea T.V.

Network. The quality of the signals receivable by Moon

Network Pvt. Ltd. directly from the broadcasters would

certainly be better than the quality, speed etc. of the

signals receivable by Sea T.V. Network. It is for this

reason that Sea T.V. Network refused to take signals

through the feed. Therefore apart from competition, the

business of Sea T.V. Network to the above extent is also

likely to be affected because of the poor quality of

signals through the feed. In such an event the

subscriber base of Sea T.V. Network would shift and

become part of the subscriber base of Moon Network Pvt.

Ltd. in Agra.

Secondly, keeping in mind what is stated above, we

may examine the scope of the said Interconnection

Regulations. There is a basic difference between making

available T.V. channels and re-transmission of T.V.

channels. We have quoted the definition and provisos from

Interconnection Regulation. Under clause 2(b) an agent is

a person authorized by a broadcaster to make available

T.V. channels to a distributor of T.V. channels. In that

definition we have a broadcaster, an agent of the

broadcaster and a distributor. Under the Agreement

between Star India Pvt. Ltd. and Moon Network Pvt. Ltd.

(which Agreement was not placed before the Tribunal) Moon

Network Pvt. Ltd. is a distributor of T.V. channels. It

is not an agent. In fact, the contract indicates that the

relationship between Star India Pvt. Ltd. and Moon Network

Pvt. Ltd. is not based on principal-agent relationship.

In other words the Star India Pvt. Ltd. has given

distribution rights exclusively to Moon Network Pvt. Ltd.

for the territory of Agra. This was never disclosed to the

Tribunal. Before the Tribunal it was argued that Moon

Network Pvt. Ltd. was the agent of Star India Pvt. Ltd.

It is for this reason that Sea T.V. Network is asked to

approach Moon Network Pvt. Ltd. as a distributor. It is

for this reason that Sea T.V. Network is made to depend

for the signals on the feed to be provided by Moon Network

Pvt. Ltd. Further under clause 2(j) the word

distributor of TV channels is defined to mean, any

person who re-transmits T.V. channels through

electromagnetic waves through cable. When signals are

provided through Decoders the matter comes under the

expression make available T.V. channels in terms of

clause 2(b)of the Interconnection Regulations. Clause 2(b)

is applicable because the broadcaster makes available the

T.V. channels to its distributor namely Moon Network Pvt.

Ltd. On the other hand between Moon Network Pvt. Ltd.

and Sea T.V. Network clause 2(j) would apply because after

receiving signals through the cable from the broadcaster

the distributor (Moon Network Pvt. Ltd.) re-transmits the

T.V. channels through the Feed to Sea T.V. Network.

Therefore, there is vital distinction between what is

received by an agent-cum-distributor from the broadcaster

and what is subsequently re-transmitted by that agentcum-

distributor to other MSOs/Cable Operators like Sea T.V.

Network. In our view the Tribunal, has therefore,

correctly drawn a distinction between what is called as

making available of T.V. channels and re-transmission of

T.V. channels under the above two clauses. Keeping in

mind the above distinction it is clear that although a

broadcaster is free to appoint its agent under the proviso

to clause 3.3 such an agent cannot be a competitor or part

of the network, particularly when under the contract

between the broadcaster and the designated agent-cum-

distributor exclusivity is provided for in the sense that

the signals of the broadcaster shall go through the cable

network owned and operated by such an agent-cum-

distributor which in the present case happens to be Moon

Network Pvt. Ltd.

In the circumstances there is no merit in this civil

appeal.

Before concluding we may once again reiterate that

the Appellate Tribunal in the present case has correctly

interpreted the scheme of Interconnection Regulations.

However, in cases of functional overlap we are of the view

that in every matter the Tribunal will examine the written

contracts between the parties and ascertain actual

prejudice/discrimination and not decide the matter on

conceptual basis. In the present case we insisted on the

appellants for producing the written Agreement with which

clarity has emerged. But for examination of such contract

it would not be proper to decide matters on per se basis.

For the aforestated reasons we find no merit in this

civil appeal and the same is accordingly dismissed with no

order as to costs.