NEW DELHI: In a significant pronouncement, the Telecom Disputes Settlement Appellate Tribunal today passed an interim order directing Sun TV to stream its signals on an a la carte basis to TataSky, at 50 per cent of the cable charges.

This means that Sun would have to give TataSky the channels that the DTH operator wants, and the price Sun would get is at 50 per cent of the price for the same channels that it receives from the MSOs in the cable TV field.

TataSky CEO Vikram Kaushik told indiantelevision.com, "This is a very significant order and we are happy with this. This would give us the semblance of a level playing field, especially in the southern part of the country where we would be able to stream the popular Sun channels."

Kaushik said, "We have a very good subscriber base in the south, and we wanted that they should get all the channels. Now this will happen, and at the end of the day the best part of the order is that it has ensured consumer choice, which seems to be the driving ideology of TDSAT as seen from most of their pronouncements."

The court observed that the petitioner is licensed by the Government of India to provide Direct-To-Home (DTH) services to television viewers across India.

"The respondent is a broadcaster offering multiple channels for viewing by subscribers of cable as well as DTH operators as per a list filed by the petitioner. As per the said Annexure, the respondent has 20 channels under its umbrella, each of which is offered at the individual rates given in the said Annexure.

The court remarked that that Annexure has not been disputed by Sun TV.

TataSky‘s case is that Sun TV has refused access to its channels on non-discriminatory basis to the petitioner. It had prayed for direction to the respondent to discharge its statutory obligation under the Inter connection Regulations framed by the Trai dated 10 December, 2004 to provide signals of its channels to the petitioner on reasonable terms and conditions.

The court has held: "On merits the main controversy revolves around the fact that the respondent wants to give all its 20 channels as a package and on a price quoted by it, whereas the petitioners‘ case is that the respondent has not made all its channels as part of a package or a bouquet.

"They are being offered on a-la-carte basis and therefore, the petitioner is entitled to take whatever channels it wants to take on the price quoted by respondent as part of a-la-carte rates reduced by 50 per cent.

TataSky senior counsel Ramji Srinivasan, however, had supported his case using an affidavit that Sun had filed earlier in the case, which the court noted.

"The Answering Respondent states that the channels provided by the Respondent cannot be stated to be a bouquet in as much as the amount charged by the Answering Respondent for the package of channels is the sum total of the charges of individual channel".

It held also the Sun senior counsel "was unable to refute the above averment in their affidavit, nor was he able to point out anything in the pleadings to suggest that all their channels were part of a package and were not being offered on a-la-carte basis.

In fact, Srinivasan had described as "sham" an agreement that Sun produced to show that it was giving rival DTH player Dish TV their channels as a bouquet, and this is where the case earlier had taken a significant turn.

"Dish TV is not showing any of the channels of the respondent (Sun TV) except one or two channels which viewers of Dish TV are able to see because they become available on DD‘s Free-to-Air channels network and as both parties i.e. DD and Dish TV are using the same transponder," the court observed.

The court apparently accepted Srinivasan‘s arguments to an extent: "At this stage it is difficult to say whether the alleged agreement of the respondent with Dish TV is real or sham.

"However, we cannot lose sight of the fact that the argument that Dish TV is still not showing any of the channels of respondent inspite of alleged agreement of November, 2006, has not been controverted by the counsel appearing for the respondent.

"Therefore, for present purposes we can take it as correct that Dish TV is not showing any of the respondent‘s channels on its DTH platform. This casts a doubt about the argument that another DTH operator i.e. Dish TV has taken the entire bouquet of respondent."

It held, therefore, "Thus, at least at this stage we are unable to accept the contention of the respondent that the petitioner has to accept all the channels of the respondent as a package.

The court looked into the argument of Sun that TataSky is carrying bouquets of channels of other broadcasters and therefore, petitioner should have channels of respondent also in bouquet only, saying that this is a "bald argument", especially since Sun TV has given any concrete in this behalf.

In any case, the court observed that any agreement between any two parties was distinct and any such agreement between TataSky and any other broadcaster could not be used to seek relief from the interim order prayed for by the DTH player.

The court also described as factually contrary to the Sun TV stand in its own affidavit on the issue that that allowing TataSky to take their channels on a-la-carte basis would create a discriminatory regime because the respondent is not offering its channels on that basis to any other party.

"The respondent has not placed any material before us, nor anything was referred to in support of the stand that it was offering its channels only as a bouquet/package to its customers. Such argument being advanced without laying any factual foundation for it, is neither here nor there," it remarked.

On the issue of rates per a la carte channel, the court said, "As an interim measure we direct the respondent to make available signals of all its channels to the petitioner on a-la-carte basis at 50 per cent of its declared rates. It is made clear that view expressed in this order is only for purposes of passing this interim order and it is not an expression of final opinion on the controversy between the parties in this case.

The matter to be listed for final hearing on 11th May, 2007.

Meanwhile, TataSky‘s DTH rival Dish TV, which plans to take Sun TV on its DTH platform, already has an agreement in place with Sun, but it will implement that after a joint marketing campaign with Sun TV is worked out, sources told indiantelevision.com.

Incidentally, the issue of receiving channels a la carte from a broadcaster to a DTH operator has also become a major contention in the TataSky Vs Zee Turner, which the TDSAT has just concluded hearing and has reserved for judgement later this month.