Tdsat directs ESS to up fees to Dish TV on RIO basis

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (Tdsat) has directed ESPN Star Sports to raise fees to Dish TV on the basis of Reference Interconnect Order (RIO) with effect from 1 September 2011.

The directive by Chaiperson S B Sinha and member P K Rastogi came on a petition filed by Dish TV case against ESS filed in September last year.

The Tribunal also allowed Dish TV to recover the excess payment made to ESPN Software India, the company that owns and operates ESPN, Star Cricket and Star Sports, for the period starting September 1 2011. The amount is estimated to be in the region of Rs 250 million.

Dish TV CEO RC Venkateish said, "This judgment of Tdsat is a landmark judgment for the DTH Industry clearly establishing the right of a DTH operator to move from a fixed fee arrangement to a RIO based agreement. The said judgment will bring order in the Industry and will also enable the DTH operator to continue providing the channels to the subscribers on affordable and competitive rate."

Dish TV had moved from Fixed Fee Agreement to RIO-based Agreement. – which was valid up to June 2012 – following the reduction of quality content in these channels and the rights available to Dish TV as a DTH Operator under the Interconnect Regulations of the Telecom Regulatory Authority of India (Trai).

Dish TV had intimated ESS in the month of July 2011 about its distribution to take effect from September 2011 and asked ESS to raise the invoices on Dish TV on the basis of its RIO rates, with effect from 1 September 2011.

However, when ESS rejected this decision, Dish TV filed the petition before Tdsat, but continued to make the payment to ESS on the basis of Fixed Fee Agreement while the case was pending.

ESS also filed a petition before the Tribunal seeking a direction from it against Dish TV to continue making payment according to the agreement of 12 March 2009 and also to declare that the request of Dish TV to ask for RIO was not binding on them.

Admitting the Dish TV petition in its order, Tdsat dismissed the petition made by ESS seeking specific performance as wholly without merit.

Tdsat said: "The parties did not enter into a non-RIO contract. It was a lump sum contract. It had nothing to do with the subscriber base. It had nothing to do with the rate fixed by the Trai. The interim order passed by the Supreme Court of India fixing 42 per cent of the rates applicable to non-Cas areas would, therefore, must be read in that context."

Tdsat asked the parties to enter into an agreement with effect from 1 September 2011 which would be governed by the modified RIO.

The Tribunal said:We are of the opinion that the interest of justice would be made, if the Petitioner is declared to be entitled to the restitution of the amount which has been paid to it for the months of September 2011 till date, subject, of course, to the amount which the Respondent was entitled to on the basis of the SMS reports."

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