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TDSAT rejects Sun’s prayer for interim relief against MSO Asianet

MUMBAI: The Telecom Disputes Settlement & Appellate Tribunal (TDSAT) has rejected Sun Distribution Services’ prayer to direct multi-system operator (MSO) Asianet Satellite Communications to restore the LCN placements of its three channels, namely Surya, Kiran TV and Surya Music by way of an interim order.

“At this stage, on hearing counsel for the parties, we are satisfied that no case is made out for any direction to the respondent to restore the LCN placements of the petitioner’s three channels by way of an interim order,” the tribunal said in an order.

It directed Asianet to file its reply within three weeks. Rejoinder, if any, may be filed within two weeks from the date of receipt of a copy of the reply. The matter has been put up before the Registrar’s court on 17 March for getting the pleadings completed, framing of issues and taking evidences.

Sun had filed a petition alleging that Asianet had discontinued the supply of its signals on its network without any notice and in violation of the regulations.

The tribunal said that there was no mention of the genre to which each of the three channels belonged in the interconnection agreement executed by the two sides. The broadcaster’s RIO (reference interconnect offer) that forms the basis of the agreement was also silent as regards the genres of the channels.

Whether or not the change in placement has caused any disadvantage or amounts to inferior treatment with respect to competing channels on a genre basis is a pure question of fact, which can be gone into only after evidences are led by the two sides, it added.

Earlier, the three channels, Surya, Kiran TV and Surya Music were at LCN 107, 144 and 146 respectively and after the hiatus of a few days when those were off air, the three channels are now being shown at LCN 648, 664 and 668. The MSO claimed that the positions were changed due to some technical glitches.

Sun counsel Abhishek Malhotra strongly contended that the action of the respondent in changing the placements of the channels was in violation of the regulations and the terms of the agreements and it was causing much prejudice to the petitioner.

Asianet counsel Navin Chawla, on the other hand, submitted that there was no violation of any regulations or the terms of agreement in shifting the positions of the three channels and the respondent was fully entitled to place the channels as and where it suited its interests.

Malhotra submitted that the three channels, Surya, Kiran TV and Surya Music belong to “GEC (Malayalam)”, “Movies (Malayalam)” and “Music (Malayalam)” genres respectively, and the respondent was legally obliged to put them in the genres to which each of them belonged.

He further submitted that at LCN 107, 144 and 146, the three channels were rightly placed in their respective genres but at LCN 648, 664 and 668, those channels are placed among channels that do not belong to their respective genres.

Chawla submitted that earlier the three channels were put in Malayalam Package-I and now the three channels are put in Malayalam Package-II, among all the Malayalam-language channels and the only grouse of the petitioner is that it has been assigned distant numbers.

The tribunal pointed out that Malayalam GEC Surya had a neighbourhood that had a number of GEC channels however in its present grouping, the number of GEC channels in its neighbourhood has become relatively fewer.

Chawla sought to justify the change by stating that it was open to the respondent to make language-based groupings rather than content-based groupings and all the three channels of the petitioner continued to be in the Malayalam group.

In support of the submission, Malhotra said that a channel must be placed in the genre to which it belongs, which invited their attention to Regulations 5[14(A)], [14(B)] and [14(C)] of the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (First Amendment) Regulations 2012.

The tribunal noted that the regulations relied upon by Malhotra support the legal proposition advanced by him, and prima facie, it is difficult to accept Chawla’s submission that the distributor is free to make language-based groupings of channels regardless of the genres to which those channels belong.

The difficulty, however, is that there is nothing to show that Sun made the declaration regarding the genres of the three channels to the distributor at the time of execution of the agreement, it stated.

Malhotra, however, relied upon the return dated 23 March 2015 submitted by the petitioner before TRAI in terms of Clause 4 of the Telecommunication (Broadcasting and Cable) Services (Second Tariff) (Fourteenth Amendment) Order 2015.

In the return, of course, the three channels are shown to belong to the genres as stated before us but there is nothing to indicate that a copy of the return was given to the respondent or it was in any other way made aware of the genres to which the three channels belong.

Having thus failed to comply with the requirements of Regulation 5[14(A)], the petitioner cannot insist on the enforcement of sub-regulation 14(B) of Regulation 5, the tribunal said.