TDSAT sets aside TRAI’s landing page direction

MUMBAI: Distribution platform operators (DPOs) can heave a sigh of relief as the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has set aside Telecom Regulatory Authority of India’s (TRAI) direction on the landing page while noting the regulator doesn’t have the powers under the TRAI Act to issue such a direction.

The tribunal issued the order on the plea filed by Bennett Coleman and Company Ltd (BCCL), All India Digital Cable Federation (AIDCF), and Mumbai-based MSO JPR Channel. The three had challenged the TRAI’s direction dated 3rd December 2018.

The TRAI had directed all broadcasters and distributors of TV channel to refrain from placing any registered TV channel whose rating is being measured on the landing page or the bootup screen with immediate effect. The authority had contended that placing of a channel on landing page influences TV ratings.

The order stated that the section 13, read with sub-clause (ii) of clause (b) of sub-section (I) of section 11, of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) do
not vest any power in the TRAI to issue directions for the purpose of curtailing the right of distributors to carry any channel on any page including the landing page by way of content or by way of advertisement.

While stating that the right to carry on trade and business for profit is a valuable right and can be regulated or curtailed only for good reasons through statutory provisions like the Regulations.

Further, the tribunal noted that the Section ll(l)(b)(ii) vests power to issue directions only in respect of “interconnectivity” and not for controlling contents of landing page for TRP purposes. For such a purpose there is no power in TRAI to issue directions under the Act.

“Hence, in our considered view, the impugned directions are beyond the provisions of the Act which empower TRAI to issue directions. Therefore, the impugned directions must be set aside on this point alone. We order accordingly,” the tribunal said in its order.

The tribunal also stated that if the TRAI proposes to curtail the right of distributors to place channels on the landing page then it should do so only after seriously considering all the pros and cons including the extent of injury likely to be sustained by different stakeholders if such a curb is not imposed or if it is imposed.

The relevant data on the basis of study should justify such a strong measure of Regulation if again proposed in the future, it added.

During the hearing, the appellants had argued that the TRAI direction is without jurisdiction as they do not relate to interconnection at all. It was also argued that the purpose of putting restrictions in general terms upon the rights of all the broadcasters and distributors may be possible only by law or regulations and not by executive directions.

The appellants also contended that the directions run contrary to provisions of relevant Regulations of 2017 which permit use of landing page whereas the law is clear that directions cannot be contrary to Regulations; also because Section 37 mandates to place a Regulation before the Parliament and therefore, it has the flavour and force of law whereas directions, though governed by provisions of the Act, are the only executive in nature.

Another argument put forth by the appellants was that TRP as a subject lies within the domain and responsibility of Ministry of Information & Broadcasting (MIB) which has permitted some broadcasters and advertisers to generate and circulate TRPs but it is not the concern of Department of Telecommunication or TRAI.

Further, “Interconnection”, as defined in the Telecommunications (Broadcasting and Cable Service Interconnection) (Addressable System) Regulation 2017 (the Regulation of 2017) does not relate to placement of a channel on any page/place including landing page.

In Para 99 of the Explanatory Memorandum of the Regulations 2017 a wrong attempt has been made to describe a Placement Agreement also as an Interconnection Agreement without explaining as to why the word “main” has been used before the words “interconnection agreement”, the appellants argued.

They also contended that TRP is not affected by the contents of the landing page because the viewer has the choice of shifting to any other page of his choice and under the new Regulations, any channel on the landing page must also be a channel opted by the viewer; and lastly,

The appellants also stated that the TRAI direction is non-transparent, arbitrary and suffer from non- application of mind; the term “television channel” is defined under the Regulations of 2017, hence TRAI has no power to further classify channels into rated and non-rated and to issue the impugned directions in the interest of TRP’s of channels which voluntarily opt for ratings while aware of various lawful uses of landing page.

TRAI counsel Saket Singh stated that the Section 36 of the Act confers a wide power to frame Regulations to carry out the purposes of the Act whereas Section 13 permits issue of directions only for discharge of functions under sub-section(l) of Section 11 and that also on the matters specified under clause (b) of sub-section(l) of Section 11.

But the exercise of power under Section 13 is not made dependent upon Section 36 and hence, no additional express limitations to that effect are mentioned nor there is any good reason to imply any such restriction on the power conferred by Section 13.

He pointed out that directions under Section 13 can be issued only to the service providers whereas the Regulations can have general applicability so as to impact even the consumers.

Since the power under Section 36 is quite wide hence it contains a check through the requirement of being laid-down before Parliament as provided in Section 37 of the Act.
On the most important issue touching jurisdiction, it was submitted on behalf of TRAI that although the Act does not define the word “interconnection”, the Regulations of 2017 through Regulation 2(x) provide that – Interconnection means commercial and technical arrangements under which service providers connect their equipments and networks to provide broadcasting services to the subscribers.

According to Regulation 2(y), Interconnection Agreement means agreements on interconnection providing technical and commercial terms and conditions for the distribution of signals of television channels. Reliance was placed on Paras 99-100 of the EM of the Regulations of 2017 to submit that placement also amounts to interconnection and placement is permitted as would be clear from the explanation to Regulations 3(3) and 18.

However, Singh also took a categorical stand that Regulations of 2017 do not deal at all with placement on the landing page and therefore, the directions are valid, justified and within the powers of TRAI.

Strong reliance was placed upon the contents of the impugned directions including the EM to submit that the issues involved were discussed in a transparent manner and then it was found that landing page showing a rated channel vitiates the concept of TRP and therefore, the directions are necessary for ensuring the purity of TRP. This would encourage good contents and better competition.

It was submitted that involuntary viewership of contents on the landing page restricts and affects the rights of the consumers to view only the contents of their choice.

It was also submitted that in order to allow the distributors to still earn from the landing page, the restriction has been imposed only on the placement of rated channels and not on placement of other channels and materials which may include advertisements.

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