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Broadcasters can’t ask DTH ops for minimum subscription period: TDSAT

MUMBAI: Forming part of a judgement that has directed the broadcaster not to ask a direct-to-home (DTH) service provider for a minimum subscription period of three months, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has urged the Telecom Regulatory Authority of India (TRAI) to relook at such Reference Interconnect Offers (RIOs).

In a significant judgement, the TDSAT has directed ESPN Software India (now Star Sports India) to modify two clauses in its Reference Interconnect Offer (RIO) agreement with DTH operator Dish TV and to enter into a fresh agreement based on the modified RIO within a period of two weeks.

The tribunal has pointed out that a broadcaster cannot ask a DTH service provider to prescribe a minimum subscription period of three months. A DTH operator, however, may prescribe a maximum of three months as the minimum period of subscription to its subscribers subscribing to a la carte channels.

The TDSAT has, thus, directed ESPN Software to modify clause 5.6. The tribunal has also asked the sportscaster to modify clause 8.2 to make the reporting requirement in conformity with the RIO published by Dish TV on its website.

Dish TV had moved TDSAT to direct ESPN Software to make the necessary amendments in its RIO including clause 5.6 and 8.2 in order to bring it in compliance with the applicable Interconnect Regulations and the Tariff Order.

While clause 5.6 of the RIO provided that the DTH operator will have to sell the services to its subscribers for a minimum period of three months, clause 8.2 specifies reporting requirements with regard to its subscribers as per which some confidential details are asked in the guise of determining the subscriber base.

Dish TV had challenged the two clauses in the tribunal arguing that they were not in conformity with the applicable Interconnect Regulations and the Tariff Order.

The tribunal also held that the number of subscribers of the respondent’s channel that is shown as part of India Cricket Pack (ICP) will be calculated on a calendar month basis as all the subscribers subscribing to such bouquets which contain the ICP for all such months or part thereof during which the channel is activated.

On clause 8.2, the tribunal said that reporting requirements, as specified in clause 8.2, cannot be different from RIO published on its website. The RIO published by the broadcaster on its website will be the basis of interconnection agreement entered into between the broadcaster and the DTH operator.

Any modification in the terms of the same can only be on non-discriminatory basis and as agreed between the parties, the tribunal noted.

The tribunal has also asked the parties to reconcile their accounts by taking the number of subscribers on a calendar month basis. The tribunal allowed ESPN Software to carry out an audit of Dish TV’s SMS and the latter will have to fully cooperate for the same.

The audit and reconciliation of accounts shall be completed within four weeks and the past accounts settled within four weeks thereafter, the tribunal said.

The tribunal also pointed out that the parties wanting to enter into agreements based on RIOs or to migrate from the existing agreements to those based on RIOs, find it difficult to do so because either the terms and conditions prescribed are not in conformity with the regulations or the costs prescribed are not representative of the industry norms but are on much higher side.

This leads to a situation where parties are forced to negotiate the conditions of the interconnect agreements, with the seeking party being at a disadvantage.

The tribunal urged the TRAI to have a relook at all such RIOs (which may not be very large in numbers) and if required, set up a task force for the purpose so that the same may be done in a time bound manner.