Why SC dismissed Star, Vijay TV’s appeal against TRAI tariff order

MUMBAI: The Supreme Court has finally settled the debate that the Telecom Regulatory Authority of India (TRAI) has the power to regulate and frame tariff for the TV broadcasting sector.

The apex court has dismissed Star India and Vijay Television’s appeal challenging the regulator’s jurisdiction to frame tariff for TV content.

Star and Vijay had challenged several clauses of the tariff order and interconnection regulation contending that they have the effect of regulating programmes and television channels, their pricing and their marketing and manner of offering/ bundling.

The two had argued that the TRAI’s jurisdiction is limited to regulating ‘means of transmission’. They also argued that the exploitation of content is governed by the Copyright Act 1957.

In its 123-page order, the two-member bench of Justice Fali Rohinton Nariman and Justice Navin Sinha stated that the TRAI Act must prevail over the Copyright Act to the extent that it protects the property rights of broadcasters.

It also noted that the TRAI Act has been conceived to protect the interest of both broadcasters and consumers.

“We are, therefore, of the view that, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter,” the apex court said in its judgement.

The bench noted that the Copyright Act is meant to protect the proprietary interest of the owner. The interest of the end user or consumer is not the focus of the Copyright Act at all.

On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of the broadcast to the ultimate consumers.

“Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land,” the order stated.

Therefore, the bench contended that the tariff order and the regulation have to be viewed with the lens of a regulatory authority which is to provide a level playing field between broadcaster and subscriber.

It also noted that the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. It further pointed out that the broadcasters are free to price their TV channels so long as they are non-discriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet or a-la-carte channels as has been held hereinabove.

“We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves,” the bench said in its order.

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