Broadcaster or distributor has to give reasons for differential rates for different MSOs: Naveen Chawla

NEW DELHI: While stressing that negotiated settlements had also been provided for in the regulations other than an agreement under the Reference Interconnect Order (RIO), two multi system operators (MSOs) apart from Hathway Cable & Datacom contended today that Star had failed to give reasons for having different rates for them as compared to Den or Siticable.

Naveen Chawla, counsel for MSO Bhaskar, which operates in Jabalpur and Scoda which operates in Navi Mumbai and Mumbai, said his contention was for a reasonable and non-discriminatory rates and he was not challenging the concept of RIO.

He said according to Clauses 3(1) and 3(2) of the Telecommunications (Broadcasting and Cable) Interconnection (Digital Addressable System) Regulations 2012 were clear that any agreement has to be reasonable and non-discriminatory and all MSOs will be treated equally.  In fact, the provision 3(2) clearly indicated that an RIO that is discriminatory and unreasonable is not acceptable.

‘Reasonable’ can mean the rate provided by law or the rate that is negotiated with a client in keeping with market forces.  Thus, RIO itself has to be reasonable and in relation to market conditions, Chawla said in the ongoing hearing before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) in the cases linked to Star signals for Turner and Zee TV.

A RIO may be a la carte or bouquet, but has to be linked to the subscriber, he said. He also said it was the responsibility of the broadcaster and not the MSO under Clause 3(3) to provide RIO agreements or to give reasons within 60 days for any demands.

Clause 4 was clear that it was the broadcaster who had to submit the RIO or agreement to the authorities and also publish it on its website.

Stressing that his main contention was that the RIO agreement given to him by Star was unreasonable and discriminatory, he said TDSAT had in 2006 held that there should be parity in the rates charged and broadcasters have to give reasons in case the rates are different.

Meanwhile, Chawla quoted from a judgment of TDSAT of August 2005 in which the Tribunal had said that an MSO cannot be an agent of the broadcaster and thus not a competitor to other MSOs, and this view had been upheld by the Supreme Court in 2007. He quoted other judgments to say that broadcasters cannot create exclusivity or monopoly of particular MSOs as that would be discriminatory.

He said the only way to judge whether an agreement was not discriminatory or unreasonable was to go by the previous judgment between the parties.

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