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Broadcasters need to issue fresh RIOs before 30 Apr as TDSAT dismisses IBF appeal

MUMBAI: The Telecom Disputes Settlement & Appellate Tribunal (TDSAT) has turned down the Indian Broadcasting Foundation’s (IBF) application seeking further extension of the suspension of its 7 December 2015 order in which it had asked broadcasters to issue fresh reference interconnection offer (RIO) within one month from the operationalisation of that order.

The TDSAT had said that in case the Telecom Regulatory Authority of India (TRAI) issues any fresh regulations before 1 April 2016, the broadcasters would be obliged to execute agreements on that basis. In case, however, no fresh regulations are issued by TRAI, the order will come into effect from 1 April and the parties would be obliged to follow the directions.

This means that broadcasters will have to come out with a fresh RIO in terms of the TDSAT order before 30 April.

The IBF, which had joined the proceedings as an intervener, had sought the extension of the suspension of the judgment on the plea that following the judgment the Telecom Regulatory Authority of India (TRAI) had issued a consultation paper that intends to review the regulatory framework for the broadcasting sector.

The tribunal considered the prayer for extension of the suspension period of the judgment and putting in place a reasonable arrangement under which the petitioner might get signals from different broadcasters in case the operation of the judgment is suspended for any further period of time and until TRAI comes up with fresh regulations and the matter attains finality.

Subsequently, the tribunal framed the following queries and asked TRAI counsel Saket Singh to get specific instructions on those queries from TRAI.

The tribunal asked whether the consultation paper ‘Tariff issues relating to TV services’ had been issued by TRAI in furtherance of the TDSAT judgment passed on 7 December 2015 or the consultation paper was issued independently of the TDSAT judgment.

It also asked TRAI whether it requested for extension of the period of suspension of the judgment until the exercise commenced by it by the issuance of the aforesaid consultation paper is over.

In case TRAI requests for any extension of the period of suspension of the judgment, the tribunal has asked within what time it is likely to conclude its exercise commenced by issuance of the aforesaid consultation paper. It further asked TRAI as to what arrangement it would suggest for the interim in case operation of the judgment is suspended for any further period of time.

In his response, Singh said that the issuance of the consultation paper dated 29 January is an ongoing process undertaken by TRAI from time to time based on its assessment of the relevant issues in the sector. Though the exercise is undertaken independently, it may cover some of the issues highlighted in the tribunal’s judgment dated 7 December 2015.

In reply to second, third and fourth questions, Singh said that a regulatory framework in the form of different interconnection regulations, tariff orders and other regulations is already in place and until any amendment or changes are introduced therein, the regulatory framework consisting of the existing regulations and tariff orders will remain in force and cover the working of the broadcasting sector.

The tribunal inferred from TRAI’s reply that it does not wish any extension of the suspension of the judgment.

It further noted that from the hearings that took place on the previous dates, it is apparent that some of the major broadcasters, namely Star India, Taj TV, IndiaCast and MSM (now Sony Pictures Networks India), have divergent views not only inter se but also at variance with the position taken by the foundation because none of the broadcasters has asked for any extension of the period of suspension of the judgment.

“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 tribunal said while turning down the application.

The tribunal has put up the rest of the cases in the batch under the same head on 8 April.

In its 7 December 2015 judgment, the tribunal had directed Star and Taj, as well as the other broadcasters who had joined the proceedings as interveners, to issue fresh RIOs in compliance with the interconnection regulations as explained in this judgment within one month from the date this order becomes operational and effective. The matter related to the NSTPL case.

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 interconnection agreement to have their agreements modified in terms of Clause 13.2A.7, it had stated.

The tribunal said that the RIO must consider 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 a la carte rate and the bouquet rates must conform to the ratio mandated in Clause 13.2A.12, which 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 shall in no case exceed three times the average rate of a pay channel of that bouquet.

The tribunal had also said that the RIO must clearly spell out any bulk discount schemes or any special schemes based on regional, cultural or linguistic considerations that would be available on a non-discriminatory basis to all seekers of signals.

The RIO, it had stated, must enumerate all the formats along with their respective prices in which the broadcaster may enter into a negotiated agreement with any distributor.