Disposed

Seshank Cable Network & Ors. v. Den Network Ltd.

TDSAT3 Feb 2015BROADCASTING PETITION/574/2015

Case brief

AI extract

What is this about?

The Appellate Tribunal upheld the respondent's implementation of the DAS package scheme but offered the petitioner two interim options: continue receiving restored channels at old a-la-carte rates while the petitioner pays separately, or switch to the new package system with revised payment rates.

What did the court decide?

Petitioner offered choice between Option 1: retain existing channels at Rs. 72 plus pay a-la-carte for new ones; or Option 2: switch to new packages paying Rs. 90 or Rs. 120 per STB.

Seshank Cable Network & Ors. vs Den Network Ltd. — Consumer Protection | TDSAT (2015)

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TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI

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Dated February, 2016 03

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Broadcasting Petition No.574 of 2015 (M.A. Nos. 476 and 479 of 2015)

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Karnataka State Digital Cable TV Operators Welfare Association, Bangalore, Karnataka

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… Petitioner

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Vs. Den Network Ltd., New Delhi … Respondent

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BEFORE:

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HON’BLE MR. JUSTICE AFTAB ALAM, CHAIRPERSON HON’BLE DR. KULDIP SINGH, MEMBER HON’BLE Mr. B.B. SRIVASTAVA, MEMBER

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For Petitioner : Mr. Nittin Bhatia, Advocate

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For Respondent

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: Mr. Vibhav Srivastava, Advocate Mr. Gaurav Kaushik, Advocate

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ORDER

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These applications have been filed seeking a modification in the interim

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order passed by the Tribunal on 26.11.2015. A direction is sought to the Respondent to provide the members of the Petitioner 48 TV channels

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Page 1 of 7

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disconnected by it, on such terms and conditions as the Tribunal may deem fit. A list of these 48 channels is at Annexure 3 to the M.A. no. 476 of 2015.

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The petitioner is an association of Local cable Operators (LCOs) operating in the state of Karnataka. The respondent is a Multi System Operator (MSO) in terms of the DAS regulations. The petitioner came to the tribunal on 19 October, 2015 seeking, inter-alia, a direction to the respondent not to arbitrarily increase the monthly subscription charges payable by the members of the petitioner association.

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The controversy in the present petition arises due to introduction of DAS¹ regime in Bangalore and the surrounding DAS areas of Karnataka. In the analogue regime, the normal practice was that LCOs paid a subscription fee for the TV signals to the MSOs that was based on their SLR² and a negotiated deal. The LCOs billed and charged the subscribers and collected the amount. In case of the DAS regime, it is mandatory for the service providers to offer all paid TV channels on a-la-carte basis to the subscribers. They, however, can also offer bouquets of channels. The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010 and the amendments to the same from time to time, prescribes how the charges collected from the subscribers will be shared between a MSO and a LCO in

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1 Digital Addressable System

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2 Subscriber Line Report

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Page 2 of 7

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case the parties fail to arrive at a negotiated agreement. Proviso to the clause 5 Part II Wholesale Tariff in this regard is as under:

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“ Provided that in case the multi-system operator and the local cable operator fail to arrive at mutual agreement, the charges collected from the subscribers shall be shared in the following manner:-

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(a) the charges collected from the subscription of channels of basic service tier, free to air channel and bouquet of free to air channels shall be shared in the ratio of 55:45 between multi-system operator and local cable operator respectively; and

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(b) the charges collected from the subscription of channels or bouquet of channels or channels and bouquet of channels other than those specified under clause (a) shall be shared in the ratio of 65:35 between multi-system operator and local cable operator respectively.”

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It is the case of the petitioner that it is paying Rs. 72/- per Set Top Box (STB) for which it was getting all the channels of the respondent. As per the respondent, it is providing channels of Sun and Star TV only on a-la-carte basis and they are not offered as part of any package/bouquet in the territories of Karnataka, the only exception to this being a few channels of Star namely Star Plus, Star Gold, Life OK, Channel V, NGC, Fox, Life, and Suvarna. It is also

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Page 3 of 7

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offering some add-on Bouquets to the subscribers. It has been billing all the linked operator at the rate of Rs. 90/- per month per STB excluding the a-lacarte channels which are billed separately. Further, w.e.f. 1.1.2016, it has implemented the package system whereby it is offering two packages; Supreme Package for Rs. 250/- per month excluding taxes for which the LCOs have to pay Rs. 90/- per month; Superb Pack for Rs. 350/- per month excluding taxes for which LCOs have to pay Rs. 120/- per month.

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On 26^th November, 2015, when the matter had come up before the Tribunal, Mr. Vibhav Srivastava made a statement that the respondent shall not alter the composition of bouquets being supplied as on date to the LCOs of the petitioner. As per the order passed on that date, it was open to the respondent to disconnect the supply of a-la-carte channels unless the LCOs paid for this on a-la-carte basis. On 18^th December, Mr. Bhatia, Ld. Counsel for the Petitioners submitted that certain channels have been disconnected. He requested for a direction to the respondent to restore these channels stating that the respondent undertakes to pay for these channels to the respondent or deposit in the Tribunal the price of these channels as being paid by the other LCOs in Karnataka. The order passed by the Tribunal on that date is as under:

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“Mr. Nittin Bhatia submits that following channels which have been disconnected by the respondent following the earlier orders passed by this Court, are critical to survival of their business:

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Page 4 of 7

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Sun TV, KTV, Sun Music, Gemini TV, Udaya TV, Sun News, Surya TV, Kiran TV, Asianet, Gemini Movies, Vijay, Adithya TV, Asianet plus, Udaya Movies, Udaya Music, Udaya News, Gemini Comedy, Udaya Comedy.

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He requests for a direction to the respondent to restore atleast these channels and undertakes to pay the price to the respondent or to deposit in the Tribunal the cost of the channels as the respondent may be receiving from other LCOs operating in Bangaluru.

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After hearing Mr. Bhatia and Mr. Srivastava at length, we consider it just and desirable to ask the respondent to restore the supply of aforesaid channels to the member LCOs of the petitioner organization. The restoration of the supply will be made in course of the day.

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As regards the liability of the LCOs for payment for these channels that may be determined on the basis of add-on bouquet or al-a-carte rates of these channels in the respondent’s package authorization form. The necessary computation will be made on the next date when the matter is listed before us.”

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Heard the counsel for the parties at some length. Prima Facie, we are of

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the view that implementation of the package scheme by the respondent is in accordance with the DAS regime as well as The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff

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Order, 2010 as amended from time to time. We feel that as at this interim stage, it will be just and fair if the following options are offered to the petitioner.

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Option 1

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The petitioner may continue to receive the channels that it is receiving at the rate of Rs. 72/- per STB. For Channels restored by the Tribunal vide its order dated 18 December, 2015 as well as for any other channels that it may wish to provide to its subscribers, it shall pay separately to the respondent at the applicable a-la-carte rates as given in Exhibit-B, pages 5 and 6 of the affidavit filed on behalf of the respondent. However, if some of these channels correspond to the bouquets offered by the respondent as per Exhibit-C, page 7 of the affidavit, the same shall be paid as per the applicable bouquet rates.

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Option 2

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The petitioner may provide the packages as implemented by the respondent w.e.f. 1.1. 2016, to its subscribers. If this option is exercised by the petitioner, it shall pay the respondent monthly at the rate of Rs. 90 per STB for Supreme Package and Rs. 120/- per STB for Superb Package. In this case also, for any additional channels, the payment shall be as prescribed in case of option1.

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Page 6 of 7

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The above arrangement shall be without prejudice to the rights and

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contentions of the parties and shall abide by the final outcome of the case.

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Put up before the Registrar’s Court for getting the case ready for hearing.

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……………

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(Aftab Alam) Chairperson