Star mulls moving SC following Delhi HC order relating to RIO in NSTPL

Star mulls moving SC following Delhi HC order relating to RIO in NSTPL

 case Posted on: 23/01/2016 12:06 AM   TelevisionPost Team MUMBAI: Broadcaster Star India is planning to move the Supreme Court as the Delhi High Court has dismissed its petition challenging the Telecom Disputes Settlement & Appellate Tribunal’s (TDSAT) orders relating to reference interconnection offer (RIO) in the Noida Software Technology Park Ltd (NSTPL) case. The bench of Justice Rajiv Sahai Endlaw held Star’s petition as not maintainable on the grounds that there was an alternative remedy of appeal under Section 18 of the TRAI Act, which mandates that the tribunal’s order be challenged in the SC. Sources in the know informed that the broadcaster is weighing legal options including moving the SC in light of the Delhi High Court judgment. Star had filed the petition on 6 January contending that the procedure adopted and the jurisdiction exercised in issuing the directions were beyond the powers of the tribunal under the TRAI Act 1997. The broadcaster had filed the petition as it was asked by the TDSAT to disclose the agreements it had entered into with MSOs. The matter was listed before the TDSAT on 12 January. In the earlier hearing, the High Court, while reserving its judgement in the case, had directed the tribunal to defer the hearing scheduled on 12 January, 2016 to a date after three weeks. Star India senior counsel Abhishek Manu Singhvi argued that the TDSAT had exercised powers beyond its jurisdiction while passing the two orders. He also argued that though the petition was related to inter-party disputes, its scope was expanded and others including regulator TRAI were impleaded as parties. Issues beyond pleadings in the petitions before the TDSAT were framed. When asked by the bench as to how this petition was maintainable owing to the availability of the alternative remedy, Star contended that the petition was maintainable because the TDSAT had passed the order exceeding its jurisdiction and failed in the impugned orders to deal with the contentions on jurisdiction urged before it. On being asked about its stand, the regulator contended that the TDSAT had interpreted the regulations in the orders, which was acceptable to it. The TRAI counsel quoted other judgments to state that error in assumption of jurisdiction should not be confused with mistake, legal or factual, in the exercise of jurisdiction. NSTPL counsel Vivek Chib opposed the writ petition contending that a wrong interpretation of regulations by the TDSAT would not entitle the petitioner (Star) to the Statutory Appellate remedy under Article 226 of the Constitution of India. He also contended that if the writ petition was entertained, it would lead to an anomalous situation as any of the 24 respondents in the matter might appeal against the High Court’s order in the SC and in which case both the SC as Appellate Court and the Writ Court would be simultaneously seized of the matter, which might lead to conflicting decisions. Justice Endlaw refused to exercise jurisdiction under Article 226 owing to the availability of alternative remedy. “I thus hold this petition to be not maintainable for the reason of availability of alternative remedy of appeal under Section 18 of the TRAI Act and dismiss the same,” he said in his 16-page order. The tribunal had passed an order on 7 December stating that RIO would form the starting point for any negotiation between broadcasters and distributors of TV channels. It had also stated that a headend-in-the-sky (HITS) operator is akin to a national MSO and hence it would be governed by the same commercial terms for an interconnection arrangement as a national MSO. The tribunal had also stated that an RIO must reflect not only the rates of channels but also the different bouquets in which the broadcaster wishes to offer its channels for distribution along with the rates of each of the formation or bouquet. Further, the tribunal had said that the a la carte and the bouquet rates must comply with the ratio mandated in Clause 13.2A.12 that states that the sum of the a la carte rates of the pay channels should not exceed one and a half times of the rate of that bouquet and the a la carte rates of each pay channel should in no case exceed three times the average rate of a pay channel of that bouquet. The tribunal had said that RIO must clearly spell out any bulk discount schemes or any special schemes based on regional, cultural or linguistics considerations that would be available on a non-discriminatory basis to all seekers of signals. The RIO must enumerate all the formats along with their respective prices in which the broadcaster might enter into a negotiated agreement with any distributor, the order had read. The main implication of the TDSAT judgment is that broadcasters cannot enter into any negotiated deal with any distributor unless the template of the arrangement, along with its price, consistent with the ratio prescribed under Clause 13.2A.12 is mentioned in the RIO.

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