Regulators

TDSAT rejects IBF plea for more time to sign RIOs with NSTPL saying HITS players get equal status with pan-India MSOs

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NEW DELHI: An application by the Indian Broadcasting Foundation seeking extension of time for its members to sign reference interconnect offers agreements with the Noida Software Technology Park Ltd (NSTPL)  has been turned down by the Telecom Disputes Settlement and Appellate Tribunal.  

In a landmark judgment expected to have far reaching consequences on the Indian broadcasting industry, TDSAT had on 7 December last said that headend-in-the-sky (HITS) players should be treated on the same level as pan-India multi-system operators (MSOs) for commercial purposes.

In its judgment on a petition filed by the NSTPL against Media Pro and others, the tribunal said its judgment would come into effect from 31 March 2016 by which time it hoped that the relevant reference interconnect offers will be revised wherever necessary.

Apart from the IBF, some television channels had also filed applications seeking an extension, and the tribunal had addressed certain questions to the Telecom Regulatory Authority of India in this connection.

In its order, chairman Aftab Alam and members Kuldip Singh and B B Srivastava said after hearing TRAI counsel Saket Singh on the questions addressed to the authority, “We take it to mean that TRAI does not wish any extension of the suspension of the judgment”.

Answering the main of the four questions, Singh had told the Tribunal that the consultation paper dated 29 January 2016 under the caption 'Tariff issues relating to TV services' was part of an ongoing process which is undertaken by TRAI from time to time based on its assessment of the relevant issues in the sector. The exercise is undertaken independently though it may cover some of the issues highlighted in the tribunal’s judgment dated 7 December.

The tribunal also noted that though the IBF had made the application for extension, it was 'apparent' from the hearings that took place on the previous dates that some of the major broadcasters 'have divergent views not only inter-se but also at variance with the position taken the foundation in as much as none of the broadcasters has asked for any extension of the period of suspension of the judgment.' The extension of the suspension of the judgment was primarily sought on the plea that following the judgment, TRAI had issued a consultation paper that intends to review the regulatory framework for the broadcasting sector.

Naming the broadcasters – Star India, Taj TV, IndiaCast, and MSM who are all members of IBF, the tribunal said” “it appears that at least on the issue of enforcement or further suspension of the judgment, the foundation is not in a position to represent the collective views of all its members. We, therefore, see no reason to entertain the application on behalf of the foundation for any further suspension of the judgment.The application is turned down.” The tribunal directed the remaining cases in the batch to come up on 8 April.

Expectedly, the judgment will also help the Hinduja Group’s HITS platform NXT Digital, which entered into the fray earlier this year.

In the judgment of 7 December, the Tribunal had directed both Star and Taj, as well as the other broadcasters who have joined the proceedings as intervenors to issue fresh RIOs in compliance with the Interconnect Regulations, as explained in the judgment within one month from the date this order becomes operational and effective. It had said it would be then open to NSTPL to execute fresh interconnect agreements with Star and Taj, and with any other broadcasters on the basis of their respective RIOs or on negotiated terms within the limits.

The tribunal said: "It is difficult to see a HITS operator as different from a pan-India MSO and in our considered view a HITS operator, in regard to the commercial terms for an interconnect arrangement has to be taken at par with a pan-India MSO and must, therefore, receive the same treatment."

The tribunal had noted that Star and Taj will have to execute fresh interconnect agreements with the petitioner within two weeks from the date of issuance of their fresh RIOs. The agreement with Star would relate back to 30 October 2015 and with Taj to 30 June 2015. The issuance of the fresh RIOs by the broadcasters will also give right to other distributors of channels with whom the broadcasters may be in interconnect agreement to have their agreements modified in terms of clause 13.2A.7.

NSTPL had executed an RIO based agreement with Media Pro. At that time, it did not complain before the tribunal that it was being forced into the RIO based agreement even though it had ample opportunity to do so as the Media Pro application was pending before the tribunal. Later on, after Media Pro ceased to be an agent of the broadcasters, NSTPL, even after filing the present petition, signed RIO based agreements with both Star and Taj. The agreement with Star was for the period upto 30 July, 2015 and the two agreements with Taj were upto 31 March, 2015.

The Tribunal had also said that NSTPL must therefore be held bound by those agreements till the periods of those agreements and further, three months beyond that in terms of clause 8 of the Interconnect agreement. After those dates (29 October in case of Star and 30 June in case of Taj) the arrangement will be governed by the fresh agreements.

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