Tdsat leaves DD's DTH to decide on channels to carry

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (Tdsat) has said Prasar Bharati is ‘best equipped‘ to decide which channel should form part of its DTH bouquet so as to attract viewers and at the same time discharge its duties under Section 12 of the Prasar Bharati Act.

This right of Prasar Bharati cannot be defeated for the petty commercial gains of any channels, Tdsat said, disposing off two similar petitions.

Justice SB Sinha, Chairperson, and members GD Gaiha and PK Rastogi also said that it was for Prasar Bharati to take a decision as to which channel is to be carried on its DD Direct Plus platform in accordance with its guidelines.

"We had already directed Prasar Bharati in our judgment of 16 December 2010 to take a policy decision at the highest level with regard to allotment or refusal of new channel." This judgment was passed by the Tribunal on petitions filed by certain channels, which were removed/sought to be removed in October 2010.
Tdsat, thus, rejected a petition by Music India channel, owned by Media Worldwide, challenging its removal from Doordarshan’s DTH platform DD Direct Plus on 18 October last year.

However in the other petition relating to the Pragya lifestyle channel run by Pragya Vision, the Tdsat said after considering the arguments that "we are of the opinion that Prasar Bharati should take a decision as early as possible about the request of Pragya in accordance with its own guidelines".

Music World had been applying to be on the free-to-air DD Direct Plus since 2006 but it was only from 3 October 2007 that it got a placement on the channel on payment of a carriage fee of Rs 2.5 million. Later on 1 August 2008, Prasar Bharati reminded the channel that its agreement was coming to an end and sought an increased fee of Rs 6 million plus service tax at 12.36 per cent and this extension was given. Prasar Bharati also agreed on 21.January 2010 to continue the agreement for 2009-10.

The channel has claimed that even as it was awaiting a letter from Prasar Bharati for continuing the agreement for 2010-11, the pubcaster without any intimation disconnected the channel from 18 October 2010.

The Tribunal said Music India can‘t claim right of renewal when he did not show any interest or willingness to continue their relationship by executing a fresh agreement with Prasar Bharati.

Prasar Bharati is not obliged to follow clause 8.1 of the Interconnect Regulation without the channel fulfilling its own obligation, it added.

Under Clause 4.2 relating to disconnection of TV signals by the distributors, the Tribunal held that this notice is necessary during the currency of the agreement and not after the completion of the period of the agreement. At the most, consumers may approach this Tribunal and agitate about their rights and obligations but the channel cannot claim right of renewal when he has not shown any interest or willingness to continue their relationship by executing a fresh agreement with the respondent.

During the arguments, Prasar Bharati submitted that it had limited transponder capacity and as on date also there were more than 97 pending applications from various channels for being carried on the DTH platform. The media industry is a highly dynamic industry where change is the order and Prasar Bharati had to come with the channels mix up of various genres catering to various state of society, regions etc.

After the removal of the channel “Music India” from the DTH platform, another channel by name of India Newswas taken on the DD Direct Plus with effect from 22 October 2010 and this was on DD Direct Plus till June 2010. However, in view of the Commonwealth Games and the starting of HDTV transmission, additional bandwidth was required and for that purpose “India News” and another channel “News 24” were removed from DD Direct Plus.

On discontinuation of two channels "Music India" and “Care World”, two other channels “India News” and “Pragya” were taken on DD Direct Plus.

Prasar Bharati submitted before the Tribunal that there is no slot available on which “Music India” can be accommodated. For accommodating “Music India” one of the existing channels has to be removed from the DTH platform.

The pubcaster also argued that in the judgment of 16 December 2010 passed by the Tribunal, there was specific direction to restore the channel “Care World”, and so “Pragya” was removed.

The DTH Core Committee of Prasar Bharati, which met on 20 October 2010, decided to remove Music India and other channels from DD platform on completion of their present term and bring two channels, India News and Pragya on their platform.

In its petition, Pragya had challenged the termination of lease granted to it. Pragya had been on the wait-list for allotment since 2009 and it was only in November 2010 that Prasar Bharati agreed to carry Pragya on DD Direct Plus. The Petitioner paid Rs. 8 million as carriage fee and
Rs 8,24,000 on account of service tax.

Prasar Bharati in its letter on 1 December 2010 informed Pragya for the first time that one Seven Star (Care World) TV Channel had been removed from DD Direct Plus after expiry of its Agreement with the Corporation but that Seven Star had appealed in Tdsat to retain its channel on DD Direct Plus. Prasar Bharati also told Pragya that its continuation was subject to the outcome of this case.

Pragya was finally told on 29 December 2010 that it had been discontinued on DD Direct Plus by replacing Care World pursuant to the Judgment of 16 December 2010.

The Tribunal said it had been ‘fully conscious’ of this and had taken care to protect the interest of Pragya and specifically recorded that it did not think it necessary to implead Pragya as a party in those proceedings because there were vacant slots available on DTH Platform of DD Direct Plus.

Therefore, the Tribunal felt that the act of Prasar Bharati of terminating the Lease is in direct violation of this Tribunal’s judgment of December 2010.

The Tribunal has also noted that one of the channels, “Lokmat”, has fallen vacant but sought restoration within a week. "‘We would not like to go into details of these aspects. It is for the respondent to take a decision as to which channel is to be carried on its platform in accordance with its guidelines," Tdsat said.

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