TV VISION LTD. Vs TATA SKY LTD AND ANR.

This petition has been filed for seeking a direction against the respondent to permit the petitioner‟s channel “Mastiii” to distribute on its DTH platform. The petitioner is a broadcaster and respondent is a DTH operator. The petitioner has prayed, interalia, for following reliefs :

“(a) declare that the refusal of the respondent to permit the petitioner to distribute its channel “Mastiii” over the DTH platform of respondent being arbitrary and discriminatory, is illegal, in breach of the licence conditions applicable to the respondent and violative of the rights of the petitioner.

(b) direct the respondent to comply with clause 7.6 of the licence agreement and include the petitioner‟s channel on its DTH platform in a non discriminatory basis. (c) restrain the respondent from including any new channel on its DTH platform pending disposal of the instant petition.”

2. The petitioner has further requested for passing an ad-interim order in terms of prayer (b) and (c) mentioned above.

3. The petitioner has submitted that the respondent did not permit the petitioner‟s channel named “Mastiii” to its DTH platform on the ground of capacity constraints inspite of requesting the respondent several times for last one and half year. The refusal of the respondent to allow the channel of the petitioner is violation of licence condition 7.6 which requires the respondent to provide access to various content providers/channels on a non-discriminatory basis.

4. According to the petitioner its channel has one of the highest TRP ratings in its genre and has been placed on the top position for number of weeks on TRP charts and TAM ratings. Instead, the respondent has included on its DTH platform the channels which are having lesser TRP rating than the petitioner‟s channel. In spite of the several requests made to the respondent by the petitioner, the respondent has resorted to the discriminatory approach where the respondent is providing its platform to other broadcasters and other channels but not to the petitioner which is giving the other broadcasters an unfair advantage over the petitioner.

5. The petitioner gave a legal notice to the respondent on 14.12.2011 followed by a reminder dated 15.02.2012. On 24.2.2012, the respondent responded to the petitioner‟s notice mentioning that the respondent did not have any duty to disclose to the petitioner, the consideration which lead them to include certain channels on their DTH platform and there were no regulatory or legal obligation to include any of the petitioner‟s channel on its DTH platform.

6. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the petitioner contends that the DTH platform is governed by the terms and conditions of the licence agreement issued by Ministry of Information and Broadcasting (MIB) on 30.12.2011. Clause 7.6 of the said agreement mandates that the licensee (DTH operator) shall provide access to various content providers/channels on a non-discriminatory basis. While the respondent is providing access to various other broadcasters, it is not providing the same to the petitioner inspite of approaching the respondent many times. The respondent has not applied any transparent and objective criteria for inclusion and exclusion of channels on its DTH platform and in fact acting in discriminatory manner.

7. The learned senior counsel added that interest of the petitioner will suffer further if the respondent does not allow the distribution of the petitioner‟s channel “Mastiii”, on its DTH platform specifically after the introduction of digitalisation and addressability of cable TV starting from 30.06.2012 in metro cities of Delhi, Mumbai, Kolkata and Chennai. With mandatory digitalization and addressability, large number of subscribers are likely to shift to DTH platform.

8. He argued that the DTH operators as licensee have to abide by the terms and conditions of the license which is in the nature of contract between the licensee and the licensor as determined by the Hon‟ble Supreme Court of India in its judgment in Union of India v. Assn. of Unified Telecom Service Providers of India,(2011) 10 SCC 543, wherein it was held that:

“37. A bare perusal of sub-section (1) of Section 4 of the Telegraph Act shows that the Central Government has the exclusive privilege of establishing, maintaining and working telegraphs. This would mean that only the Central Government, and no other person, has the right to carry on telecommunication activities. 39. The proviso to sub-section (1) of Section 4 of the Telegraph Act, however, enables the Central Government to part with this exclusive privilege in favour of any other person by granting a licence in his favour on such conditions and in consideration of such payments as it thinks fit. As the Central Government owns the exclusive privilege of carrying on telecommunication activities and as the Central Government alone has the right to part with this privilege in favour of any person by granting a licence in his favour on such conditions and in consideration of such terms as it thinks fit, a licence granted under the proviso to sub-section (1) of Section 4 of the Telegraph Act is in the nature of a contract between the Central Government and the licensee.”

9. The learned counsel further submits that DTH operators use certain band of spectrum, a scare natural resource, for carrying signals of the broadcaster. Therefore, the DTH operator cannot be allowed to provide access to its platform in discriminatory manner. It has to be in the large interest of the society. Whatever channels the respondent carry, depending upon the availability of spectrum and capacity of the transponder, it should give reasons as to why a particular channel is selected and why the petitioner‟s channel is rejected.

The Hon‟ble Supreme Court of India in Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161, has held that : “78. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media.”

10. Learned senior counsel further requested that pending finalization of the hearing in this petition, the respondent may be restrained to include any new channel on its DTH platform or one slot may be reserved for the petitioner‟s channel “Mastiii” on its DTH platform.

11. Mr. Tejveer Singh Bhatia, the learned counsel appearing on behalf the respondent stated that the respondent‟s platform already had 7 channels of music and the request of the petitioner was also for music channel. Further, there was no „must carry‟ provision in the Interconnection Regulations for carrying signals of the channel of the petitioner.

12. The learned counsel for the respondent argued that this Tribunal in its order dated 31.03.2007 in Petition No.189(C) of 2006 (Tata Sky Limited Versus Zee Turner Limited and ors) held that the interpretation of clause 7.6 of the license‟s terms and conditions cannot be read as must carry provision. We may produce the relevant paras :

“While deciding the said case (A.S.C. Vs. Star) the question of transponder capacity was not before this Tribunal and, therefore, there was no occasion to consider the same. For deciding the present case also the question of transponder capacity is not very material because undisputedly, the petitioner has some spare capacity at present. But it does not want to take all the channels of respondent 1 and exhaust its limited capacity. It is relevant and important that a DTH operator may not like to take all the channels of a particular broadcaster and exhaust its transponder capacity by taking unwanted channels.”

“It appears to us that reference to the „must provide‟ provision contained in Regulation 3.2 was made by the learned counsel for respondent in order to build an argument for a „must carry‟ provision which he wants to read in clause 7.6 of the DTH Licence granted in favour of the petitioner by the Ministry of Information & Broadcasting, Government of India. Clause 7.6 provides: “the Licensor shall provide access to various content providers/channels on a non-discriminatory basis”.

On the basis of this clause it is contented that the Licensee has to carry all the channels of a broadcaster on non-discriminatory basis. This according to learned counsel for respondent means that a distributor or a DTH operator like the petitioner must carry all the channels of a broadcaster. It is not disputed that there is no specific provision in the Regulations for „must carry‟ concept. We are unable to read a „must carry‟ provision in clause 7.6. A plain reading of clause 7.6 suggests that the obligation is cast on a Licensee to provide access to various content providers/channels on a non-discriminatory basis. As per this clause, therefore, the Licensee is not the seeker of channels. The broadcasters or the content providers have to approach the Licensee for providing access on its platform for their channels and then the Licensee is required to do so on a non-discriminatory basis. This clause also does not say that a Licensee must carry all the channels of a particular content provider. Therefore, we are unable to see how an argument that a Licensee must carry all the channels of a broadcaster can be, advanced on the basis of the provision contained in clause 7.6 of the Licence. Further, it must be noted that the interpretation suggested by the learned counsel for the respondent in clause 7.6 of the Licence is totally irrational because it overlooks the fact that it will choke the DTH operator if it has to carry all the channels of every broadcaster. A DTH operator naturally will provide access to every broadcaster because every broadcaster is supposed to have some popular channels which a DTH operator is likely to include on its platform. If a DTH operator has to take all the channels of every broadcaster, it may not be physically possible to do so. Moreover, if every channel has to be taken it means that it will have to be paid for. This will increase the cost for the DTH operator. Ultimately, the cost will get passed on to the consumer. If DTH becomes expensive consumers will keep away from it. It will not be able to compete with CAS or cable. Thus, such an interpretation of clause 7.6 may be anti consumer.”

13. Mr. Mukul Rohatgi, the learned senior counsel for the petitioner, however, contended that in Petition No.189(C) Of 2006 as aforementioned, it was a case of large number of channels, while the petitioner wants to have only one channel. The relevant portion of the judgment is produced below : “In the present case the petitioner says he negotiated for two bouquets of Zee Turner. He is willing to take both bouquets 1 and 2 which were offered during negotiations. Therefore, this is not a case of any pick and choose. On facts, we have found that the other 3 bouquets i.e. bouquets 3, 4 and 5 have been added by the respondent 1 (making a total of 32 channels) subsequent to the filing of the petition and, therefore, we cannot permit respondent 1 to load the same on the petitioner. A broadcaster may keep on adding to its channels since nothing prevents it from doing so. But that does not mean that the DTH operator will have to take all subsequent additions. Today Zee Turner claims to have 32 channels. We have held that it had only 19 channels at the time of negotiations with petitioner and rest of the channels appear to have been acquired by respondent 1 after filing of this petition. If we hold that petitioner must take all 32 channels, what happens tomorrow if respondent may acquire 32 more channels. Accepting respondent‟s plea will mean that petitioner will have to take those additional 32 channels also. While deciding the present case, there is no conflict with the decision of this Tribunal dated 14th July, 2006 in A.S.C. Vs. Star.

While deciding the said case (A.S.C. Vs. Star) the question of transponder capacity was not before this Tribunal and, therefore, there was no occasion to consider the same. For deciding the present case also the question of transponder capacity is not very material because undisputedly, the petitioner has some spare capacity at present. But it does not want to take all the channels of respondent 1 and exhaust its limited capacity. It is relevant and important that a DTH operator may not like to take all the channels of a particular broadcaster and exhaust its transponder capacity by taking unwanted channels.”

14. The DTH operators are given licence by Ministry of Information and Broadcasting. Clause 7.6 of the license agreement put the obligation on the part of the licensee to provide access to various content providers/channels on a non-discriminatory basis.

15. The interconnection between the broadcaster and DTH operator is governed by “The Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004” as amended from time to time. Under Regulation 3.2, every broadcaster is obliged to provide signals of its TV channels on non-discriminatory terms on request to all distributors of TV channels, cable operators, direct to home operator, multi system operator, etc. and further relationship between the broadcaster and the distributor including DTH operators like the respondent are governed by other provisions of the regulation. No mandatory provision has been made in the regulation where an obligation has been cast upon the DTH operator to provide its platform to carry the signals of any broadcaster. Although there is „must provide‟ clause, there is no provision of „must carry‟ the signals of the broadcaster by the DTH operator under the said regulation.

16. However, the DTH operator as licensee has to abide by the license condition 7.6 wherein an obligation has been imposed on the licensee to provide access to the content provider on non-discriminatory basis. This Tribunal in its earlier order dated 31.03.2007 in Petition No. 189(c) of 2006 already held that clause 7.6 of DTH license agreement does not imply „must carry‟. There are large numbers of channels. It is not possible for DTH platform to carry all the channels due to capacity constraints. Again the channels are priced differently. Infact, some channels are free to air channels. Therefore, the DTH operator has to necessarily select the channels to be carried.

17. The question before this Tribunal is to determine whether the respondent has been providing access to its platform in non-discriminatory manner. Whether the petitioner has been treated in a fair, unbiased and equitable manner? Therefore, it is necessary that the respondent is given opportunity to file its reply before adjudicating on the issue raised.

18. In view of the aforementioned reasons, I am of the opinion that the petitioner has not made out a case for issue of mandatory injunction for restraining the respondent from including any new channel on its DTH platform pending disposal of this petition. However, any new channel included on the DTH platform of the respondent during pendency of this petition, will be subject to the outcome of this petition.

……………….. (P.K.Rastogi) Member /NC/