(2 April 2007 3:30 pm)

NEW DELHI: The Zee Group will knock on the doors of the Supreme Court challenging the TDSAT order that has said TataSky is obliged only to take 19 of their channels in bouquets 1 and 2, and has declared Zee a defaulter for not providing signals to TataSky on a non-discriminatory basis.

Asked whether they are moving the Supreme Court, a top Zee official said: "Of course we shall."

"This is a peculiar judgement, because it deals with only the factual positions of the two parties in the dispute in hand, which the judges have clearly said, and therefore, this judgement has not settled the law," the official, requesting anonymity, held.

"Besides, we are not defaulting on anything. The court had issued an interim order earlier, stating that we have to give TataSky our channels at 50 per cent of the cable charges, which we are doing already and have not defied that, so where are we defaulting?" the official queried.

He held also that TataSky is still being given all the 32 channels of Zee's five bouquets, and the order has only given the former the right to switch off the channels they do not want.

"Indeed, the quirk is that in their statements, TataSky had finally said they wanted 22 channels, not 19, which was their earlier demand, but the court has settled for 19. So there are a lot of grey areas that need to be settled."

Primarily what needs to be settled is the fact that the order, being centred around 'facts of the case', has not settled the law.

"There are many statements made by our counsel that have not been taken into account," the official said.

Besides, the entire issue hangs on a central confusion: whether the regulator says that there is a "must carry" obligation in place. This is an issue in law, and hence, the Supreme Court would be approached on this issue, Zee officials said.

The case started with TataSky petitioning TDSAT that Zee Turner was forcing it to take all its 32 channels from five of their bouquets, but they needed only 19 which were popular ones, and could not afford to jam their limited transponder space with all 32 channels, most of which (as per their contention) were "junk channels".

The petition had been filed against Zee Turner, Zee Telefilms, Turner International and ASC Enterprises.

TataSky's contention was that the regulation stipulates that broadcasters "must provide… on a non-discriminatory basis" all the channels available with them, but the DTH operator could pick and choose the ones it wanted.

Zee had argued, inter alia, that the license conditions for any DTH licensee, which TataSky had to meet with, implied a statutory obligation of "must carry" all the channels of all the broadcasters that they seek to receive signals from.

TataSky later took recourse to an affidavit by the sector regulator, Telecom Regulatory Authority of India (Trai) that the specific clause 7.6 of the regulation did not mean a "must carry" obligation.

But Zee had placed several documents through which it had tried to show that the Trai affidavit was unfounded in facts and Trai's own previous orders.

However, the court felt: "We are unable to read a 'must carry' provision in clause 7.6. A plain reading of clause 7.6 suggests that the obligation is cast on a Licensee to provide access to various content providers/channels on a non-discriminatory basis."

This will be one of the serious issues that would come up in the Supreme Court, and any order on this would impact the entire industry.

Also Read:
TataSky not obliged to carry all 32 Zee channels: TDSAT