TDSAT allows Sony to hold audit of Multi Reach Media, Digi Cablecomm’s systems

MUMBAI: The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has allowed broadcaster Sony Pictures Networks India (SPNI) to hold audit of multi system operators (MSO) Multi Reach Media and Digi Cablecomm Services India’s subscriber management systems (SMS) to ascertain subscriber reports.

Multi Reach Media and Digi Cablecomm Services India had moved TDSAT against disconnection notices issued by SPNI. The notices were issued as the broadcaster has doubts over the subscriber reports furnished by the two MSOs.

The subscriber reports are the basis of raising the monthly invoices since the parties entered into a fresh agreement on 30th January which is effective from 1st February.

The two MSOs have argued that the invoices should have been on the basis of subscriber reports raised by them whereas the actual invoices raised by the broadcaster are not based on their reports.

In the case of Digi Cablecomm, the broadcaster has demanded an amount of Rs. 43 lakh and odd for the period till 31st March whereas according to the MSO, if the invoices are raised on the basis of subscriber reports submitted then the amount would be in the vicinity of Rs. 11,62,647 and odd.

The broadcaster has demanded an amount of Rs. 23 lakh and odd from Multi Reach Media for the period till 31st March whereas the MSO has contended that if the invoices are raised on the basis of subscriber reports submitted then the amount would be in vicinity of Rs. 6.79 lakh and odd.

The TDSAT noted that the real dispute falling for determination is whether the broadcaster has the right, after communicating its reasons in writing to the distributor/petitioner, to audit the SMS in terms of Regulation 15 of Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations 2017.

It further stated that the proviso to Regulations15(2) empowers the authority (TRAI) that it may empanel auditors for the purpose of such audit and it shall be mandatory for a broadcaster to cause audit from any one of such empanelled auditors.

Both Digi Cablecomm and Multi Reach Media raised an objection to audit by Sony on the ground that under Regulations 15(2) the latter can hold an audit only when the authority creates a panel of auditors and that has not been done as yet.

The submission of learned counsel for Sony is that the provisio only enables the authority and hence, in case there is no panel prepared by the authority, the right of distributor to hold audit when required under the provisions of Regulations 15(2) can not be taken away by implication, as suggested by the learned counsel for the petitioner.

The tribunal stated that it finds merit in the aforesaid submissions advanced on behalf of Sony. “In our considered view, the right to hold an audit once in a calendar year is a valuable right given to the parties and that can not be disturbed by interpreting the provisio as suggested,” it stated.

For the present, the tribunal stated that the broadcaster will raise provisional bills on the basis of subscribers reports submitted and payments for the present may be made by the petitioner as per its own figures within two days from today.

In case, such payment is not made then this interim relief granting protection to the MSOs will stand vacated. If such payment is made, then Sony will not give effect to the impugned notice of disconnection until further orders.

“However, the respondent will be at liberty to send its team for holding audit on any date after seven days from today after due intimation to the petitioner. Such intimation should be communicated within two days from today. It goes without saying that the petitioner shall render all possible assistance so that the audit may be conducted at an early date in the spirit of the provisions in the regulations,” the tribunal said in its order.

The tribunal also clarified that the acceptance of money as per the calculation of the MSOs and raising all future invoices on a provisional basis as per subscriber reports shall not prejudice the claim of the broadcaster for a higher amount if such a demand is justified by the regulations.

Reply, the tribunal said, may be filed within three weeks. The audit report may be brought on record as soon as it is available. Rejoinder may be filed within two weeks. The matter has been posted under the head ‘For Directions’ on 8th July.