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Prejudice caused to broadcaster by TV channel’s placement has to be established: TDSAT

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NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has rejected the demand by Sun Distribution Services for placement of three Malayalam channels on numbers of their choice on Asianet Satellite Communications Ltd.

Sun wanted restoration of its three channels - Surya, Kiran TV and Surya Music - to their original placements at 107, 144 and 146 respectively. It was said that after the hiatus of a few days when these were off air due to technical glitches (according to Asianet) the three channels are now being shown at LCN 648, 664 and 668. 

TDSAT chairman Aftab Alam and members Kuldip Singh and B B Srivastava said no case is made out for any direction to the respondent to restore the LCN placements of the petitioner’s three channels by way of an interim order. 

While accepting the terms in the interconnect agreement that the subscriber operator would ensure that no subscribed channel would be disadvantaged or otherwise treated less favourably with respect to the competing channels on a genre basis, the Tribunal said no case had been made out in support of this.  

Whether or not the change in placement has caused any disadvantage or amounts to inferior treatment with respect to competing channels on a genre basis is a pure question of fact, which can be gone into only after evidences are led by the two sides, the Tribunal said while posting the matter before the Registrar’s court on 17 March for getting the pleadings completed, framing of issues and taking evidences.

Sun had initially filed the petition agitating the grievance that Asianet had discontinued the supply of its signals on its network without any notice and in violation of the Regulations. The petition was filed on 14 January but when it came up before the Tribunal the next day, it was stated that the broadcast of channels was resumed on the respondent’s network but their placements were changed causing much prejudice to the petitioner.  

Noticing this grievance of the broadcaster, the petition was adjourned to enable the counsel for Asianet to get proper instructions in the matter. 

Thereafter Sun filed an affidavit on 28 January and its reply was filed by Asianet the next day.

Sun Counsel Abhishek Malhotra strongly contended that the Asianet action in changing the placements of the channels was in violation of the Regulations and the terms of the agreements.

Asianet counsel Navin Chawla submitted that there was no violation of any Regulations or the terms of agreement in shifting the positions of the three channels and the respondent was fully entitled to place the channels as and where it suited its interests.

The two sides have been in interconnect relationship for the past several years. In the past, the agreements between the two sides were based on mutual negotiations and the petitioner’s three channels were consistently placed at LCN 107 (Surya), 144 (Kiran TV) and 146 (Surya Music). The parties executed a fresh agreement on 31 December, 2015 to take effect from 1 January, 2016 covering Kerala that came under the Digital Addressable System (DAS) regime in Phase-III. 

The present agreement, unlike the previous agreements, is based on the Sun’S RIO. It is well known that a distributor accepts the RIO based agreement only as a measure of last resort.

Malhotra submitted that the three channels belong to “GEC (Malayalam)”, “Movies (Malayalam)” and “Music (Malayalam)” genres respectively and Asianet was legally obliged to put them in the genres to which each of them belonged. He further submitted that at LCN 107, 144 and 146, the three channels were rightly placed in their respective genres but at LCN 648, 664 and 668, those channels are placed among channels, which do not belong to their respective genres. 

However, Chawla said the three channels, which were earlier in Malayalam Package-I were now in Malayalam Package-II among all the Malayalam language channels and the only grouse of Sun was that they had been assigned distant numbers.  

The Tribunal, which saw the earlier and present groupings found that in the present grouping, the number of GEC channels in its neighbourhood had become relatively fewer. Chawla sought to justify the change by stating that it was open to the Asianet to make language based groupings rather than content based groupings and all the three channels of Sun continued to be in the Malayalam group.

Malhotra drew attention to Regulation 5[14(A)], [14(B)] and [14(C)] of the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (First Amendment) Regulations 2012.  The Regulations said, “The multi system operator will place the channels of a broadcaster in the genre declared by such broadcaster and no broadcaster shall demand from the multi-system operator to assign a particular number of its channels.”

Thus, the Tribunal noted that while prima facie Sun was right, the fact remained that there was nothing to show that Sun made the declaration regarding the genres of the three channels to the distributor at the time of execution of the agreement.

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