VARIETY ENTERTAINMENT PVT LTD Vs ESPN SOFTWARE INDIA PVT. LTD.

G.D. Gaiha, Member

1. This petition has been filed for issuing directions to the respondent to provide decoders of the channels ESPN, Star Sports and Star Cricket to the petitioner on settlement of commercial terms on negotiation basis and upon execution of subscription agreement in a non-discriminatory manner. The petitioner is aggrieved because the respondent has failed to provide either decoders as requested, or depute the representative to finalise the commercial terms. The grievance of the petitioner is because the action of the respondent amounts to violation of Regulation 3.2 of the TRAI Regulations dated 10th December, 2004, as amended on 4th September, 2006.

2. The main dispute is regarding the subscriber base and, therefore, a joint survey was ordered on 29th May, 2009 for the city of Bhubaneshwar, which was agreed upon by the petitioner to be the area of operation for the purpose of obtaining signals from the respondent. This Tribunal had directed the respondent to provide signals to the petitioner as an interim measure and as agreed by both the parties for a subscriber base of 1500 for Bhubaneshwar city. This figure was to be reconciled according to the final figures approved at after the joint survey.

3. It has been noticed that there were lot of hiccups in the process of joint survey and conflicting claims about the status were noted. Mr. Vibhav Srivastava was appointed as an Advocate Commissioner as per the consensus of the parties. The report of the Advocate Commissioner has been received and the same has been objected to by petitioner on account of the following reasons:- (i) In regard to the petitioner’s local cable operator M/s. Jagannath Vision the agreed subscriber base is 200 amongst the parties while the learned Advocate Commissioner has indicated a subscriber base of 3500. (ii) The petitioner has categorically stated that there is no relationship with Mithu vision and the same is a sub-operator of Jagannath Vision and, therefore, by no stretch of imagination the petitioner is trying to pirate the signals through Mithu Vision. (iii) In regard to another cable operator Saumya Ranjan, admitted subscriber base is only 175.

4. In view of the above objections raised by the petitioner, the subscriber base arrived at by the learned Advocate Commissioner appointed by this Tribunal i.e. 7976 is not acceptable to the petitioner. The learned Advocate Commissioner has also mentioned in this report that if the signals are confined only to M.I.G then the subscriber base will be only 4476.

5. The respondent has prayed in the present M.A. No. 120 of 2010 that the petitioner should be directed to pay subscription fee for 6476 subscribers from 1st September, 2009 till April 30, 2010 and thereafter should pay on a connectivity of 7976. The reason indicated in the prayers is that since the subscriber base of 1500 is already being paid and, therefore, the same has been reduced by this number to arrive at the figure of 6476 for paying from September 1, 2009 till April 30, 2010 and thereafter the figure arrived at by the process of joint survey i.e. 7976 is to be the correct subscriber base for the purpose of entering agreement and making payment.

6. The learned counsel for petitioner would contend that the subscriber base arrived at during the joint survey, if considered, will not make the business of the petitioner viable and he has presented the calculation for a subscriber base of 4476 numbers which is as follows :- Total subscriber base consented by parties : 4476 nos.

A. As per Broadcasting and Cable services (2nd) Tariff (9th Amendment) Order 2008, in the Bhubaneshwar upper limit/Maximum amount of charge payable by a subscriber per month is not exceeding Rs. 235/-. B. Amount to be retained by LCO per Rs. 82/-subscriber Amount to be retained by MSO for Rs. 25/-maintenance per subscriber

Therefore, available to be paid to pay channels, A – B = 235 – 107 = 128 per subscriber per channel Amount available to paid to pay channels, Rs. 107 x 4476 = Rs. 5,72,928.00

Amount to be paid to various channels : Channel Amount per subscriber excluding taxes in Rs. Star DEN Bouquet-I 50.08 MSM 76.51 ESPN(petitioner herein) 77.23 Channel Plus 10.40 NDTV 29.00 SAHARA 35.71 Zee Turner 115.08 ETV channels 11.21 Total 405.31

7. As claimed by the petitioner the amount of Rs. 82, which is to be paid to the cable operator for each subscriber, we have mentioned in our order in Appeal No. 11(C) of 2006 on 12th May, 2009 that this amount is negotiable with the cable operators and is not mandatory to be paid by the MSOs to the LCOs for the points being fed through the cable operators and, therefore, the petitioner’s claim that Rs. 82/- as per the Order in Appeal No. 11(C) of 2006 is not mandatory to be paid to the cable operator. As regards the Broadcasting and Cable Services (2nd) Tariff (9th Amendment) Order 2008 the upper limit is mentioned as Rs. 235/- is necessary to be maintained by the MSO and, therefore, is very likely that this limit will be exceeded by the MSO in case we issue directions for making payments for a subscriber base of 4476.

8. As a matter of fact in case the joint survey has been carried out by counting the actual subscribers, it is necessary that the parties should negotiate before arriving at a subscriber base for which the agreement is required to be signed for providing signals. This subscriber base in almost all cases is found to be less than the actual subscriber base which is arrived at after the process of joint survey. We, therefore, direct that as an interim measure the parties may negotiate on the basis of subscriber base arrived at after joint survey for final determination of this figure on negotiated basis. Till final determination by this Tribunal, the subscriber base may be raised to 2500 from 1500 purely as an interim measure for payment to the respondent by the petitioner. In case the subscriber base arrived at by negotiation or by determination by this Tribunal is different, the adjustments accordingly will be made by the parties.

………………,J (S.B. Sinha) Chairperson

……………….. (G.D. Gaiha) Member

……………….. (P.K. Rastogi) Member