UTSAV COMMUNICATION PVT. LTD Vs STAR DEN MEDIA SERVICE PVT. LTD.

This petition has been filed for direction to the respondent to supply the Decoder Boxes and consequently supply the Signals of the Channels broadcasted by it and to sign the Subscription Agreement with the Petitioner.

2. The Petitioner is a Multi System Operator (MSO) and the Respondent is the Broadcaster of the pay channels.

3. The Petitioner submitted that it was having Sub-Operators through whom it was serving about 232 Subscribers showing Free-to- Air channels. Vide its letter dated 11.09.2009 it had requested the respondent to supply its decoder boxes and it had given all the relevant and requisite information and documents to the respondent. Later on, the respondent was reminded for the same vide its letters dated 10.10.2009, 20.10.2009, 28.10.2009.

4. The Petitioner received a letter dated 03.11.2009 from the Respondent asking it to send the duly filled up Application Form along with documents mentioned in the said letter. The Petitioner sent the duly filled up Application Form on 11.11.2009 along-with all the documents including the list of its subscribers. As the Petitioner did not receive any reply from the Respondent, it again wrote a letter dated 05.07.2010 along-with the required documents and requested the Respondent to enter into a Subscription Agreement.

The Petitioner continued to write letters to the respondent on different dates like 26.08.2010, 25.09.2010 and 22.11.2010, 21.03.2011 and 09.4.2011. Further it had sent an e-mail on 26.04.2011 along-with the required documents and requested the Respondent to enter into a Subscription Agreement. In the letter it also mentioned that it was always willing for joint survey, and also willing to provide any further information/document, if so, required by the Respondent.

5. As the petitioner did not get any reply from the respondent, it filed this petition and prayed for the following reliefs :

(i) “direct the Respondent to enter into a Subscription Agreement with the Petitioner and provide TV Signals to Petitioner’s Cable TV Network on reasonable terms and conditions and issue Decoders and commence the supply of signals to the Cable TV Network of the Petitioner; (ii) Grant damages to the Petitioner as against the Respondents of Rs.3,00,000/- along with costs of litigation, and (iii) Pass any other such order(s) as this Tribunal may deem fit and proper in the facts and circumstances of the present case.”

6. In its reply, the respondent submitted that the Petitioner till date has not made complete “request” as required under the Regulations and has not provided the complete details as required under Clause 9 of the Regulations. The Petitioner under-declared its subscriber base and the same was pointed out by the Respondent vide its letter dated 16.05.2011 addressed to the Petitioner. Furthermore, vide the said letter the Respondent sought various information/documents from the Petitioner.

The Respondent has all-along been willing to enter into meaningful negotiations with the Petitioner and has had several teleconferences with the Petitioner on the issue.

Moreover, vide its letter dated 16.05.2011, the Respondent sought for details as to the Petitioner’s connectivity after considering the documents provided by the Petitioner. Vide the said letter, the Respondent had informed the Petitioner that it does not appear to be a similarly based distributor for a area as huge as Municipal Limits of Bhopal, Bhopal Railway Colony, BHEL and other government colonies as the Petitioner had merely disclosed a subscriber base of 249 subscribers through two local cable operators which is miniscule compared to other MSOs in the said area. The cable and satellite homes in the areas where the Petitioner is seeking signals are much higher. The Respondent discussed the said issue with the Petitioner several times and addressed letter dated 16.05.2011 to the Petitioner.

The Petitioner was also requested to provide correct and complete details of the LCOs connected to its network as well as correct and complete details of the subscribers to enable the Respondent to verify the same.

7. The only issue framed in this petition is : “whether in the facts and circumstances of the case, the petitioner has made out a case for obtaining signals of the channels of the respondent by complying with the statutory requirements thereof including the requirements in terms of Clause-9 of the Interconnect Regulations?”

8. The learned counsel of the petitioner has drawn our attention to the letter written to the respondent on various dates in the year 2009 but we may notice the letter of the respondents written to the petitioner on 3.11.2009 where it was requested by the respondent that the petitioner should provide all the relevant details with regard to its head end. We may notice the same :

“We wish to inform you that we are most willing to consider your request for signals of STAR Den Channels at your proposed head end subject to compliance of certain procedural formalities from your end. In this regard please note that to commence meaningful negotiations, you are required to provide all relevant details with regard to your head end /proposed business plan. Further as required by clause 9 of “The Telecommunication (Broadcasting and Cable Services) Interconnection (Third Amendment) Regulation 2006(10 of 2006) (Regulations)” you are required to provide the details of the cable operators who will be getting signals from your proposed headend with their detailed subscriber base (with addresses) and also consumers proposed to be directly served by your proposed headend. We would also need a map from the government gazette with the marking of your proposed area of operations and the number of cable and satellite homes therein.

We would appreciate that we cannot have meaningful negotiations unless we receive relevant details from you. In the light of the above, we request you to complete necessary application formalities. We are forwarding herewith a copy of our application form for your convenience.”

9. Petitioner sent a filled up application form dated 11.11.2009 and reminded the respondent for supply of signals. Again by a letter dated 26.08.2010, the petitioner sent a reminder to the respondent alongwith enclosure listed :

1. “our certificate of incorporation 2. our Board resolution on 11th Sep 2009 3. our address prof phone bill 4. my ID Prof PAN Card copy 5. our Post Office licence 6. our Service Tax Registration 7. our Entertainment Tax Registration 8. our PAN Number 9. our Income Tax Return 10. our Bank Statements 11. application form 12. subscriber list with LCO subscribers 13. I required your channel’s bouquet for Entire Municipal Corporation of Bhopal including Railway, BHEL and other Govt colonies. Map is enclosed.”

One speed post receipt is shown as proof of dispatch.

10. This petition has been filed on 24th May 2011. The respondent has sent a letter on 16th May 2011. According to the petitioner, it has not received the same till filing of this petition. Through this letter, the respondent has asked the petitioner again to provide all the information in terms of :

“Moreover we note that you have not provided us details of the LCOs who are connected to your network and even the details of your direct subscribers are incomplete and unverifiable. We again request you to provide us correct and complete details of your connectivity, so that we may consider your request. The connectivity of 249 households disclosed by you is very low considering that your area of operation covers Entire Municipal limits of Bhopal, Bhopal Railway Colony, BHEL and other Govt colonies. Complete information as contemplated in clause 9 of TRAI’s Regulations dated 04.09.2008 was not furnished by you. You have not provided us copies of last three months invoices raised on your sub operators together with proof of payments made by them or for that matter copies of agreements signed with them so as to ensure/check that you and / or your sub-operators are not indulging in under-declaration of subscribers.”

11. The counsel of the respondent contended that the petitioner has not disclosed the true SLR. Sometimes, the petitioner showed the list of 249 subscribers and other time as 232. It is not known what is the correct figure? In fact, subscriber list of 245 in Bhopal was rejected by TDSAT in its order dated 17.01.2011 in Petition No. 146(c) of 2011 filed by the petitioner against Zee Turner. Similarly, another Petition No. 347(c) of 2010 against MSM Discovery Pvt. Ltd. was dismissed on 26.05.2011 as the petitioner gave misleading information and concealed material facts.

12. The counsel further argued that LCO’s names have not been disclosed. The petitioner received the letter dated 16.05.2011 but did not disclose before filing of this petition on 24th May 2011.

The cross-examination of the petitioner by the respondent does not show that he has received this letter before filing of the petition. The relevant portion of the cross–examination is re-produced below :

“Q20: After 3rd November, 2009 did you receive any letter from the respondent? A: I have not received any letter but the distributor of Star Den in June, 2011 has handed over a copy of the letter stating that the same have been sent to the petitioner.

Q21: Have you brought that letter? A: Yes. The witness points a photocopy of the letter dated 16.5.2011.

Q22: Is the address of the petitioner mentioned in the letter is correct? A: Yes.

Q23: Have you replied to the letter dated 16.5.2011?

A: Yes. Only two days back as the matter is pending before this Tribunal.

Q36: I put it to you that you have suppressed the letter dated 16.5.2011. A: I deny. Volunteers: The respondent has created this letter after filing of the present petition with a view to create evidence against the petitioner.

Q37: I put it to you that you received the letter dated 16.5.2011 before filing of this petition. A: It is incorrect.”

13. The Cross-examination of Mr. Amrendra Singh working with the respondent shows that the respondent wanted to have full addresses of LCOs and their area of operations. He has admitted the receipt of the list of subscribers. However, he says that there is under-declaration in terms of having only connectivity of 249 in whole of Bhopal area. We may re-produce the relevant portion of cross-examination :

“It is correct that we have been continuously discussing grant of signals to the petitioner in respect of his request and demanding additional documents, money receipts and LCO list. It is correct to say that the petitioner has two LCOs but the petitioner has at no point of time provided us with the details of the LCOs, invoices and area of operation. I do not have the phone numbers, address of the LCOs, their area of operation and their number of connections and hence I have not been able to trace them in my ground verification.

It is incorrect to suggest that I am aware of the LCOs of the petitioner but do not want to place this fact on record. Even the subscribers of the petitioner were not traceable in my ground verification. The figure of 249 subscribers is mentioned in the application of the petitioner. (The witness is shown page no. 57 of the paper book where the figure of 249 is mentioned.) The petitioner has provided the LCO list wherein the number of connections is mentioned as 249. (The witness points out the list (Annexure P1) at page no. 19 to 23 of paper book where on page no. 23 the last serial number is 249.) Volunteers: The witness confirms that this list is available with them along with the application. It is correct to say that when we talk about under declaration we mean that the petitioner has more connections than what he has mentioned in the list. Volunteers: In Bhopal, the total number of connectivity is 249 connections covered in whole of Bhopal area. It is incorrect to suggest that I already know the LCOs of the petitioner but wrote the letter dated 16th May, 2011 when I saw that petitioner is moving the court in this regard or has already moved the court. I do not have any proof of delivery of the letter dated 16th May, 2011 (dispatched on 20th May, 2011). Volunteers: copy of the Proof of dispatch is filed along with the affidavit dated 11th October, 2011 as exhibit RW/1. (Ld. Counsel for the petitioner objects to the exhibited document for it being a photocopy.) We have not demanded from the petitioner in writing the LCO list prior to the letter dated 15th May, 2011. Volunteers: We have verbally demanded the same with the petitioner during meetings and telephonic conversations. I am not in a position to tell which addresses in the list are not correct but the addresses are there and we have not been able to verify since their telephone numbers are not provided.”

14. The regulation casts duty on every broadcaster to supply signals to all distributor of channels on non-discriminatory basis. However, there is duty on the signal seeker to provide all relevant information as provided in the regulation. The list of proposed cable operators alongwith their area of operation and their subscriber base is very important document to be supplied to the broadcaster for seeking signals from it.

I would like to reproduce Regulation 3.2 of “The Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004” as amended from time to time :

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.

While finalising subscriber base at the time of Ist agreement between the MSO and broadcaster, the relevant provision is:

“First agreement between Multi System Operator and Broadcaster 9.2 In non-addressable systems, while executing an interconnection agreement for the first time between a multi system operator and a broadcaster, the multi system operator shall furnish a list of the cable operators who will be getting signals from its network along with their subscriber base. The parties to the agreement shall take into account the subscriber base of cable operators connected to the multi system operator while negotiating the subscriber base of the multi system operator. For the consumers proposed to be directly served by the multi system operator, the procedure as laid down in sub-clause 9.1 of this regulation shall be followed.”

15. The large number of documents submitted by the petitioner mentioned at para 9 above by and large fulfill the requirements of the regulation for the supply of signals to the petitioner, however, I find that the petitioner has not provided full addresses and area of operation of the LCOs for the purpose of verification by the respondent. On the other hand, I see that the contentions of the respondent have been hyper technical in nature. The main issue of dispute seems to be the subscriber base. The respondent’s view is that the subscriber base of 245 is too low for a big city like Bhopal.

16. For the reasons aforementioned, I am 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 10 days.

(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 before the next date of hearing.

17. This petition be posted “for directions” on 15.03.2012. In the meantime, if settlement is arrived at, liberty is granted to mention.

……………...... (P.K. Rastogi) Member /NC/