|
The
court, importantly, has held that in the
interests of consumers being given full
choice, no DTH operator can be forced to
carry all the channels of all the broadcasters,
because of constraints of transponder space,
a major issue so long hanging fire.
The
court has also asked Trai once again to
fix tariff of channels on DTH platforms.
It
has asked Zee Turner to supply signals of
these 19 channels to TataSky at 50 per cent
of the price the broadcaster offers to the
cable operators, and has directed Trai once
more to fix the channel tariffs for the
DTH operators, a persistent TataSky demand
in the present case arguments.
TDSAT
has virtually demolished the arguments of
Zee, especially on the issue of what the
latter stated was a "must carry provision"
inherent in the Trai regulations.
Zee had raised the point that clause 7.6
of the regulation implied that there is
in place a "must carry" provision,
which made it mandatory for the DTH players
to carry all the channels a broadcaster
has on offer in all its bouquets put together,
which TataSky had disputed.
In
its final ruling, TDSAT has said that so
far as the case in hand is concerned, the
issue of must carry did not arise.
However,
its observations on Zee's arguments are
scathing.
"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 nondiscriminatory
basis.
"As
per this clause, therefore, the Licensee
is not the seeker of channels. The broadcasters
or the content providers have to approach
the Licensee for providing access on its
platform for their channels and then the
Licensee is required to do so on a nondiscriminatory
basis."
This
is exactly what senior counsel for TataSky,
Ramji Srinivas, had stressed in the last
phase of his arguments.
"This
clause also does not say that a Licensee
must carry all the channels of a particular
content provider. Therefore, we are unable
to see how an argument that a Licensee must
carry all the channels of a broadcaster
can be, advanced on the basis of the provision
contained in clause 7.6 of the Licence,"
the court said.
"Further,
it must be noted that the interpretation
suggested by the learned counsel for the
respondent in clause 7.6 of the Licence
is totally irrational because it overlooks
the fact that it will choke the DTH operator
if it has to carry all the channels of every
broadcaster.
"A
DTH operator naturally will provide access
to every broadcaster because every broadcaster
is supposed to have some popular channels
which a DTH operator is likely to include
on its platform.
"If
a DTH operator has to take all the channels
of every broadcaster, it may not be physically
possible to do so. Moreover, if every channel
has to be taken it means that it will have
to be paid for.
"This
will increase the cost for the DTH operator.
Ultimately, the cost will get passed on
to the consumer. If DTH becomes expensive,
consumers will keep away from it. It will
not be able to compete with CAS or cable.
Thus, such an interpretation of clause 7.6
may be anti consumer," the court observed.
While
these are the issues that will impact the
entire DTH industry and its relations with
the broadcasters, the specifics of the TataSky
versus Zee Turner case, which centred around
the latter insisting that TataSky was obliged
to take all its 32 channels, the court ruled
in favour of the latter.
"…
during the course of hearing we repeatedly
asked the counsel appearing for respondents,
if there is any documentary evidence to
show that Zee Turner had offered 32 channels
comprising five bouquets to the petitioner
at any time before the TDSAT judgment dated
14th July, 2006 in Petition No.136 (C )
of 2006 ASC Enterprises Ltd. vs. Star India
Private Ltd..
"The
learned counsel was frank enough to state
that there was none," the court stated
after review of all relevant letters and
Emails exchanged between the parties over
the period of dispute.
"The
parties have placed before us a bulky record
but there is nothing therein which supports
this argument being advanced by counsel
for respondents that Zee Turner was offering
32 channels to the petitioner during negotiations
prior to the judgment of this Tribunal dated
14th July, 2006.
"There
is complete silence as to when 19 channels
of respondent 1 became 32. It appears that
respondents got wiser after the TDSAT judgment,
believing that on its basis the DTH operator
could be asked to take all the channels
which the broadcaster had to offer.
"Reason
for us to think so is that in the short
reply filed in these proceedings on 24th
July, 2006, the respondent 1 for the first
time stated that it was authorized to provide
signals of 32 channels at a rate of Rs 149.85
excluding taxes.
"The
sequence of events clearly shows that after
the said judgment of this Tribunal of 14
July 2006 the respondents for the first
time started saying that they were authorized
for 32 channels as they wanted to thrust
all the 32 channels on the petitioner,"
the court stated.
The
court finally ruled: "As a result of
the above discussion, this petition is allowed
and we direct the respondents to provide
signals for 19 channels forming part of
bouquets 1 and 2 of respondent 1 to petitioner.
"We
further direct respondent 1 to provide these
signals to the petitioner on reasonable
and nondiscriminatory terms which should
include charges at 50 per cent of the declared
list price of respondent 1 for these 19
channels.
"We
also declare that respondents have defaulted
in providing signals to the petitioner on
nondiscriminatory basis."
| 
