Tdsat turns down pleas of Tata Sky and sun direct against ESS' HD pricing

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (Tdsat) has turned down the pleas of direct-to-home (DTH) operators, Tata Sky and Sun Direct, against sports broadcaster ESPN Star Sports for arbitrarily pricing its HD service on two special sporting events.

The Tdsat today directed Tata Sky and Sun Direct to pay ESPN Star Sports (ESS) at the rate of Rs 25 million for the telecast of soccer World Cup and Wimbledon in High Definition.

Noting that Tata Sky had already paid a partial sum of Rs 17.7 million while Sun Direct has not paid any sum, Tdsat directed that it should pay interest at the rate of 24 per cent per annum on the due amount. It noted that two other DTH operators had already agreed and paid the sum of Rs 25 million for the two events.

However while pronouncing its order in favour of ESS, the Tribunal noted it was "of the opinion that the stand of the petitioner before Trai (Telecom regulatory Authority of India) was not fully free from blemish, although it was sinned against more than sinning."
Fifa World Cup began on 11 June and ended on 11 July, whereas the Wimbledon Lawn Tennis Championship commenced on 21 June and ended in the first week of July. The French Open also commenced and ended in between these two events.

In its order on a bunch of petitions which raised common law points, Tdsat noted that Trai did not have any regulations in place for High Definition TV at the time when ESS intended to introduce ‘High Definition‘ feed for transmission of Wimbledon Championship and Fifa World Cup for a period of about 40 days beginning from 11 June 2010.

It had, therefore, applied for permission from the Information and Broadcasting Ministry to downlink their channel as required in terms of Downlinking and Uplinking Guidelines. The Ministry had asked for certain clarifications which the Tribunal noted were not necessary having regard to the Sports Broadcasting Signals (Mandatory sharing with Prasar Bharati) Act 2007. However, the permission was granted after the clarifications were issued, though ESS was barred from carrying any advertisements.  
The Tribunal heard four petitions - one each by ESPN and Sun Direct against Trai and two by Tata Sky against ESPN - and also took into account a judgment of the Madras High Court with regard to a petition filed there by Sun Direct.

With regards to the averments made by Trai in the Madras High Court, the Tribunal also said that the role of the Trai of a mediator or conciliator to determine rates between the broadcaster and a DTH player was a process which was not warranted in law.

The Tribunal said Trai could not act as a mediator ‘being a statutory authority and was required to confine its activities within the four corners of the Statute. Trai should have clarified its stand before the Madras High Court that either it would make regulations or refuse to do so. It should have exercised its own prerogative. As a regulator, it cannot be dictated by a third party including the State.‘

"When it appeared before the Madras High Court, we may presume, it was aware that it would be prescribing ‘forbearance‘ of its own Tariff Order. We expect that an independent Regulator would be bold enough to disclose its position before any forum whatsoever. Before Trai there were two rates, one of the rates offered in the RIO and the other three times of the standard rate offered by DTH operator. It could not have for any reason whatsoever said that the rate to be charged by the broadcaster from two DTH operators should be ten times of the standard rate. Neither had it given any in support of this decision," the Tribunal noted.

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