Telecom tribunal partially allowed appeal directed parties to sign fresh agreement on subscriber base of 600 for Star group channels treating them similar to non-regional Zee TV channels in Vijayawada area.
Directed parties to sign agreement on subscriber base of 600 for Star group channels.
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TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI
Dated 17th October, 2012
Petition No. 473(C) of 2011
M/s Vision Digital Cable ........…Petitioner
Vs.
M/s Media Pro Enterprises India Pvt. Ltd. ……Respondent
BEFORE:
HON’BLE MR. P.K.RASTOGI, MEMBER
For Petitioner : Mr.B.S.Sai, Advocate
For Respondent : Mr.Saurabh Srivastava,Advocate (for Sai Krishna & Associates)
JUDGEMENT
This petition has been filed by the petitioner against the respondent praying for :
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agreement was signed on 19.04.2010. The IRD boxes were made
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available to the petitioner but activated on different dates between 30.04.2010 and 30.05.2010, however, the invoices raised with effect from 30.04.2010 only.
The petitioner submitted that as there was no response from the respondent, it filed Petition No. 108(c) of 2011 against the respondent on 15.02.2011 for renewal of the agreement on the same lines as with
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the other three MSOs.
4.1 notice on 18.4.2011 and public notice under clause 4.3 on 19.4.2011. This matter was heard by this Tribunal and on 10.5.2011, the petitioner was directed to pay Rs. 2.38 lakhs to the respondent. The signals of the petitioner were disconnected by the respondent from midnight of 10.05.2011. The very next day, this Tribunal ordered for restoration of the signals.
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“14. While the petitioner contends that the respondent is charging on the basis of 7500 subscriber base against total number of 1,70,000 subscribers of other MSOs, the petitioner is paying for 1400 subscribers base for the same number of subscribers. We agree with the contention of the petitioner that the viewer-ship of the non Telugu channel cannot be 100%. We are of the opinion that subscriber base of the respondent channel will be on similar lines as in the case of other MSOs. The only difference is that the respondent may provide volume discount to bigger MSOs in accordance with the prescribed regulation. As the petitioner is not operating in the entire area of Vijayawada(Urban and Rural), the subscriber base should be negotiated for its area of operation on the same lines as is applicable to other MSOs exception being volume discounts, subject to the statutory mandate.
16. In view of the aforementioned reasons, we are of the opinion that the interest of justice shall be sub-served, if a direction is given to the parties to enter into the new agreement in terms of the Regulation. The petitioner will supply the SLR of each month, if not already supplied. The petitioner should have the registration from postal department for the area for which signals are to be supplied, proposed connectivity and LCOs including the area of operation. The respondent may give volume discount based on the total number of subscribers. The
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respondent may verify the same and conduct joint survey, if felt necessary and execute the agreement. However, joint survey, if required should be completed expeditiously and not later than 15 days.
17. During pendency of the petition, the respondent had issued disconnection notice under Regulation 4.1 and 4.3 on 12.07.2010 and on 09.10.2010 respectively. By our interim order dated 10.5.2011, we directed the petitioner to pay a sum of Rs. 2,38,000/- to the respondent. The petitioner paid the said amount and on 11.05.2011 the respondent was directed to restore the supply of signals to the petitioner. The interim order is made absolute, subject to determination of subscriber base i.e., the subscription amount payable by the petitioner be fixed from the date of expiry of the existing agreement on that basis.
18. The petition is partially allowed in terms of aforementioned directions. In the circumstances of the case, there shall be no order as to costs.”
The finding of this Tribunal was the negotiated subscriber base of
the respondent’s channel will be on the lines as with the other 3 MSOs with only difference that the respondent may give volume discount in accordance with the appropriate regulation.
9. According to the petitioner, it had supplied all the informations
and relevant documents including SLR to the respondent but the respondent was not willing to renew the agreement as per this Tribunal’s directions. Therefore, this petition has been filed to seek redressal of its grievances.
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Earlier the petitioner had entered into subscription agreement on 19.04.2010 with Star Den for 1400 subscribers which was expired on 31.12.2010. Thereafter, the petitioner and the Star Den were into discussions with respect to the renewal of the agreement. This Tribunal had given a direction to the Star Den on 10.08.2011. However, aforesaid order was not applicable to the respondent since it was not a party in the earlier petition.
11. The respondent further submitted that Interconnection
Regulations given full freedom to the respondent to negotiate terms of
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the contract with any MSO including subscriber base. The respondent has not given any discount to any MSO as alleged by the petitioner for the area of Vijayawada. The petitioner is currently receiving signals for the channels, Star Movies, Star Plus, Star World, Star Gold, Channel V, National Geography, Star News, Star Vijay and Fox History. These channels are very popular channels in India and most of the subscribers prefer to watch these channels, irrespective of their local language. In India, most of the people understand Hindi and / or English and therefore, these channels are in much demand, irrespective of local languages and are preferred by people in Vijayawada.
“3.2 Every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator; [HITS operators and multi system operators shall also, on request, re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators.”
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the aspect on what basis the agreement has to signed :
“13. It is seen from the records that there was a joint survey between the parties and it was found that there were 1453 subscribers where the amount is being charged for each subscriber. In non-CAS area, the channels are distributed to the subscriber on the basis of viewer-ship of the channel, which is negotiated. The viewer-ship may depend upon the language, popularity of the particular channel etc. Generally, the viewership will be same in a particular area. However, there is a provision in the Regulation to provide volume based discounts.
The relevant clause 3.6 reads as under :
“3.6 The volume related scheme to establish price differentials based on number of subscribers shall not amount to discrimination if there is a standard scheme equally applicable to all similarly based distributors of TV channel(s).
Explanation
“Similarly based distributor of TV channels” means distributors of TV channels operating under similar conditions. The analysis of whether distributors of TV channels are similarly based includes consideration of, but is not limited to, such factors as whether distributors of TV channels operate within a geographical region and neighbourhood, have roughly the same number of subscribers, purchase a similar service, use the same distribution technology.
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For the removal of doubts, it is further clarified that the distributors of TV channels using addressable systems including DTH, IPTV and such like cannot be said to be similarly based vis-à-vis distributors of TV channels using non addressable systems.”
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“Q. Do you know that the petitioner had entered into an agreement with Media Pro in the month of Novermber 2011? A. Yes
Q. What was the subscriber base of the petitoiner in the above agreement?
A. It was for Zee Turner with 3000 subscriber base for Zee Telugu.
Q. Is it correct that petitioner have agreement with the respondent for non regional Zee channels on the subscriber base of 300.
Q. Is it correct that the Media Pro is having agreements with MSOs for subscriber base lesser than the actual subscribr base of the MSO for non regional channels?
A. No. It depends upon the ground realities and connectivities.
Q. Can you produce the other three MSOs agreeemnt with the Media Pro in Vijayawada town?
A. I will have to discuss with my superiors.”
on similar lines as that of non Telugu Zee TV Channel. The respondent contends that Star Group of Channels are very popular in non Hindi area also. If the petitioner is happy to sign subscriber base of 300 for
Zee Turner channels, popularity of Star Group of channels cannot be
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more than the double of the Zee TV channels. Therefore, I am of the opinion that end of justice will be subserved, if the parties are directed to sign the agreement on the subscriber base of 600 for Star group of channels.
…………….....
(P.K. Rastogi) Member
/NC/
2 issues framed by the court
Whether the agreement between broadcaster and MSO should be executed on a negotiated subscriber base of 600 for Star group channels similar to non-regional channels.
Whether the Tribunal can direct the parties to sign a fresh agreement on subscriber base of 600 for Star group channels as end of justice.
M/s Vision Digital Cable
M/s Media Pro Enterprises India Pvt. Ltd.
P.K. RASTOGI
As recorded by the court registry
A petition before the Telecom Disputes Settlement and Appellate Tribunal in a broadcasting or cable-distribution dispute.
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