Category: TDSAT

TDSAT asks Canara Star MD to attend Star India dispute hearing

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has directed Canara Star, Bangalore’s managing director to be present in the next hearing on 28 January to answer queries relating to its ongoing dispute with Star India.

In the last hearing, which was held in the third week of December 2015, the Tribunal had asked Canara Star to intimate Star India whether it admits the SMS reports submitted by the broadcaster for the period 2014 to January 2015.

The common order by the Tribunal on three petitions including one by Star India against Canara Star claiming recovery dues of about Rs 3 crore pertaining to the MSO’s operations in Digital Addressable Area (DAS) of Bangalore said this was subject to the two parties failing to arrive at a final settlement.

The directive by TDSAT chairman Justice Aftab Alam and members Kuldip Singh and B B Srivastava came after being informed by Canara Star counsel Tushar Singh that the parties had failed to resolve dispute.

However, Star India counsels Kunal Tandon and Arjun Natarajan told the Tribunal that no attempts had been made by Canara Star to resolve the dispute.

Justice Alam said that TDSAT would be forced to issue warrants if the MD of Canara Star is not present on the next date.

In the last hearing, the Tribunal had also asked Canara to produce its bank statements and materials to show payments made by it towards invoices raised by Star India based on Canara’s SMS reports.

Canara, which has allegedly sold off its business to another MSO – All Digital, will produce its deed of transfer of establishment to All Digital, which was made a party in the petition filed by Star India.

The other two petitions are by Canara Star challenging disconnection notices issues by Star India for analogue areas of Kumta and Bhatkal.

Star India counsels Tandon and Natarajan had produced the SMS reports on the basis of which it had billed Canara Star.

Star India argued that Canara cannot withhold payments to it for invoices, which were raised by the broadcaster on the basis of Canara Star’s SMS reports.

All the three matters had been before the mediator from early August till mid November but no settlement could be arrived at.

January 15, 2016
TDSAT directs four broadcasters to sign pact & give signals to Chirala LCO

NEW DELHI: Four broadcasters namely Eenadu Television, Maa TV, Sun Distribution Services and Taj TV have been directed by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to enter into interconnect agreements with Chirala Cable Network for retransmission of their respective signals in 14 panchayats.

TDSAT chairman Justice Aftab Alam and members Kuldip Singh and B B Srivastava gave the directive after examining a survey report submitted by the Advocate Commissioner Tushar Singh who had been appointed on 1 December last by the Tribunal to go to the rural areas around Chirala town and conduct a survey.

According to the survey, the cable network has 2150 households in the area, the Advocate Commissioner had visited 10 houses in each of the rural areas listed by the network as his subscribers and also 10 others not in the list and found that even among those not in the list, there were four or five of the 150 houses visited by him who were receiving signals from the network as well as other local cable operator. Thus, the Tribunal raised the SLR figure by 2.5 per cent.

The broadcasters were directed to execute the agreement not later than two weeks and to supply their signals to the network immediately thereafter.

Disposing of the four petitions by Chirala Cable Network, the Tribunal made clear that any variation in the SLR during the period of the agreement may take place only as provided under the Regulations.

The Tribunal accepted the report of 7 January, which showed that the network had the connectivity of 2081 as claimed by the network, apart from those not listed by it.

The detailed survey report submitted by Singh, which the Tribunal said was made properly and reflects the true position, thus confirms the petitioner’s assertion that it has the connectivity of 2081 connections in the 14 panchayats.

“If we take into account the five houses not mentioned in the petitioner’s SLR that were receiving the petitioner’s signals, the SLR submitted by the petitioner may be increased by 2.5 per cent. We direct that the petitioner’s SLR be taken as 2150.”

The Advocate Commissioner was directed to give copies of the expense account to the counsel representing four broadcasters who will to make proportionate payments to petitioner’s counsel B S Sai or the client within 10 days.

January 13, 2016
TDSAT asks GTPL Hathway to restore RCN Digital’s signals

NEW DELHI: GTPL Hathway has been asked by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to restore the signals to RCN Digital.

In their order, vacation bench of members Kuldip Singh and B B Srivastava said GTPL Hathway and RCN Digital to maintain the status quo as on 26 December, 2015.

With this order, the Tribunal listed the petition by RCN Digital for 6 January.

Counsel Saurabh Upadhayay, counsel for RCN told the Tribunal that payment of Rs 1.17 crore had been made towards activation charges of the set top boxes (STBs) provided to RCN.

But he said the signals were disconnected without any notice on 27 December.

Upadhayay said that an agreement duly signed was sent by RCN to Hathway but had not been returned after the signature of the latter.

January 1, 2016
TDSAT declines MP MSOs’ petitions for Star India signals

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has declined separate petitions by Gwalior’s S R Digital and Ujjain’s Surbhi Diginet through which they had sought the signals of Star India.

TDSAT chairman Justice Aftab Alam and members Kuldip Singh and B B Srivastava, Iisting the matter for 20 January, gave Star India three weeks to file its reply. The two multi-system operators (MSOs) would file rejoinders in two weeks thereafter.

In similar petitions, the two MSOs had alleged that they had signed memorandums of understanding with Star India and also an agreement.

Counsel Vineet Bhagat for both MSOs submitted that despite executing an MoU and an agreement, Star India had provided boxes of only five channels. However, Star India had not activated the same. It was further alleged that Star India had not provided boxes of the remaining channels.

In view of this, the petitioner MSOs wanted that Star India should be directed to activate boxes of the five channels and provide the remaining boxes and activate them.

Arguing for Star India, counsel Arjun Natarajan said the broadcaster had not entered into any MoU and/or agreement with S.R. Digital and/or Surbhi Diginet. Therefore, there was never any occasion for SIPL to either hand over boxes or to activate them.

He also said that the MoUs and agreements filed with the petitions contained no signatures on behalf of Star India.

He added that there is no pleading in the petitions that counter-signed copies of MoUs and/or agreements have been withheld by Star India.

He added that S R Media is a collection agent of Star India and therefore it might have access to Star India’s stamp papers, IRDs etc and alleged that S R Media had colluded with S R Digital and Surbhi Diginet.

December 26, 2015
Exchange of letters for reaching a pact or partial payment doesn’t amount to formal agreement: TDSAT

NEW DELHI: Rejecting a petition by Asianet Satellite Communication, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has noted that a payment made by Sathyadhara Communications “purely as a goodwill gesture and in the hope of reaching an agreement” cannot be taken to mean that the parties had reached any agreement or Satyadhara had given any approval for the same.

Referring to one of the main disputes, which was about placement of certain channels, TDSAT chairman Justice Aftab Alam and member Kuldip Singh said, “The primary reason why broadcasters pay for placement of their channels is to popularise them. Revenue to the broadcasters comes from two streams, which are subscription fees, and advertisements. The channels having more viewership command more subscription fees as well as revenue from advertisements. It is for this reason that when channels are relatively new, broadcasters pay for their placement. Naturally, they want their channels to be placed with existing popular channels of a similar genre. For example, if an entertainment channel is placed near some religious channels, it is not likely to be visible to the viewers looking for an entertainment channel. Even when a viewer is surfing different channels, the channels in earlier slots are more likely to be viewed than those in the later slots. It is for this reason that both the slot and the neighbourhood in which a channel is placed becomes important for a broadcaster.”

The Tribunal said as seen from the facts of this case, this was the major reason why an agreement was not reached between the parties.

The petition had been filed for recovery of a sum of Rs 1.30 crore allegedly payable by Sathyadhara towards balance of carriage fees for the year 2012-13. A further sum of Rs 20.47 lakh had also been claimed as interest at 18 per cent p.a. for the delay in payment of the carriage fees.

Asianet is operating both as a multi system operator (MSO) and a local cable operator (LCO) in Kerala. It distributes signals of various TV channels directly, as well as through other cable operators, to individual subscribers. Satyadhara is a broadcaster, which runs Darshana TV.

A carriage agreement dated 8 August, 2011 was signed between the parties and was valid for one year from 1 September, 2011 to 31 August, 2012. Under this, Asianet was to carry and retransmit signals of Darshana TV. For the carriage of this channel, Sathyadhara was to pay an amount of Rs 60 lakh per year exclusive of taxes for the period of the agreement. This agreement or the payment under it are not in dispute.

The dispute pertains to a period starting from 1 September, 2012 till the disconnection of carriage of signals by Sathyadhara on 20 November, 2013. Asianet has claimed that both parties wanted to continue the agreement even after the expiry on 31 August, 2012.

The Tribunal took note of the exchange of letters between the parties to come to a formal agreement and particularly about the placement of Sathyadhara’s channel but said this did not mean that any agreement had been reached.

TDSAT also rejected the argument by Asianet counsel Shirin Khajuria that a draft agreement sent to Sathyadhara for execution “is tantamount to an oral contract between the parties.”

The Tribunal said that placement of the channel continued to be the main dispute in the letters sent by the two parties.

There were other differences with respect to the payment terms and other clauses of the agreement as well as the period of the agreement, the Tribunal noted. There was no agreement between the parties as the witness admitted Sathyadhara sought payment in instalments and also sought specific placement of its channels in the cable TV network of the petitioner.

There was no acceptance of the offer made by Asianet by Sathyadhara and hence, there no concluded contract. On the contrary, Sathyadhara was willing to enter into agreement subject to Asianet agreeing to certain terms and conditions.

The Tribunal said the law in this regard is very clear and in a fairly recent case, the Supreme Court had held that in the absence of an acceptance of the bid of the plaintiff by a written communication, there is no concluded contract in favour of the plaintiff in relation to the offer made by it.

The Tribunal rejected arguments on the basis of Section 70 of the Indian Contracts Act as the parties were in discussion but could not come to any agreement.

December 24, 2015
TDSAT directs Canara Star to settle disputes with Star India

NEW DELHI: Bangalore’s Canara Star has been asked by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to intimate Star India whether it admits the SMS reports submitted by the broadcaster for the period 2014 to January 2015.

The common order by the Tribunal on three petitions including one by Star India against Canara Star claiming recovery dues of about Rs 3 crore pertaining to the MSO’s operations in Digital Addressable System (DAS) area of Bangalore said this was subject to the two parties failing to arrive at a final settlement.

Listing the matter for 14 January, 2016 the Tribunal also asked Canara to produce its bank statements and materials to show payments made by it towards invoices raised by Star India based on Canara’s SMS reports.

Canara, which has allegedly sold off its business to another MSO called All Digital, will produce its deed of transfer of establishment to All Digital, which was made a party in the petition filed by Star India.

The other two petitions are by Canara Star challenging disconnection notices issues by Star India for analogue areas of Kumta and Bhatkal.

Star India counsels Kunal Tandon and Arjun Natarajan produced the SMS reports on the basis of which it had billed Canara Star.

Star India argued that Canara cannot withhold payments to it for invoices, which were raised by the broadcaster on the basis of Canara Star’s SMS reports.

Canara Star’s counsel Jayant Mehta asked for one final opportunity to settle the disputes.

All the three matters had been before the mediator from early August till mid November but no settlement could be arrived at.

December 21, 2015
TDSAT asks Star India to restore signals to Karnataka LCO subject to part payment

NEW DELHI: Star India has been asked by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to restore signals to Karnataka based local cable operator (LCO) V4 Media, provided it pays Rs 12.91 lakh through RTGS as committed by it.

Listing the matter for 21 December, the Tribunal said V4 Media will further make payment of Rs 19.88 lakh by 26 December.

TDSAT chairman Justice Aftab Alam and member B B Srivastava made it clear that “these payments are on account payment and shall be without prejudice to the rights and contentions of the parties.”

Apart from the aforesaid payments, V4 Media will also pay the monthly subscription fee as per the invoice dated 5 November.

December 17, 2015
TDSAT rejects IndiaCast, MSM Discovery, Asianet petitions claiming dues from LCOs

NEW DELHI: Sending out a clear signal to distributors and multi system operators (MSOs), the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has once again turned down three petitions seeking payment from a local cable operator (LCO) for the period for which the signals were sent even after expiry of a valid interconnect agreement.

There were two cases of IndiaCast UTV Media Distribution and MSM Discovery against MSO S R Cable TV and one by Asianet Satellite Communication against Sathyadhara Communications.

The cases against S R Cable were for recovery of the alleged dues of subscription fees amounting to Rs 3.01 lakh along with interest at 18 per cent and Rs 8.24 lakh along with interest at 18 per cent per annum respectively till the date of payment.

The case of Asianet was for recovery of Rs 1.30 crore allegedly payable by Sathyadhara towards balance of carriage fees for the year 2012-13 and a further sum of Rs 20.47 lakh as interest at 18 per cent p.a. for the delay in payment of the carriage fees.

TDSAT chairman Justice Aftab Alam and member Kuldip Singh said, “The alleged supply of signals by IndiaCast to the respondent after the expiry of the interconnect agreement was plainly in contravention of the statutory Regulations. Having acted in breach of the Regulations, it cannot seek the help of the judicial process and realise its dues through the process of court.”

The petitions against S R Cable were dismissed with cost of Rs 5,000 payable to the TDSAT Employees Welfare Society.

It was in the case of IndiaCast that the LCO executed an interconnect agreement with it on 1 June, 2011 for the period 1 April, 2011 to 31 March under which IndiaCast was to supply the TV channels controlled by it on behalf of its principal broadcasters on payment of Rs 21 lakh as the monthly subscription fee.

IndiaCast said it supplied the TV channels to the LCO in terms of the agreement and regularly raised invoices for payment of the monthly subscription fee. The LCO, however, defaulted in payments as a result of which dues accumulated. Finally on 1 August, 2014 IndiaCast discontinued the supply of its signals to the respondent.

IndiaCast claimed it sent reminders and legal notice demanding the payment of its dues but as no payment was made by the LCO, the petition was filed on 5 August, 2014.

TDSAT proceeded ex parte as the LCO did not appear despite service of notice.

The Tribunal took note of the fact that IndiaCast had sought to fill this gap by a miscellaneous application on 23 February this year by stating that the LCO was required to pay an amount of Rs 25.20 lakh exclusive of taxes annually towards the subscription fee calculated on the basis of the said Subscription Agreement for 12 months, but the LCO on several occasions requested IndiaCast to continue to provide the signals even after the expiry of the previous agreement and gave the oral assurances that the fresh agreements will be executed between the parties. It is stated that “the parties were negotiating for the renewal of the agreement and basis the negotiation process, the petitioner continued to provide the signals.”

The Tribunal rejected as “misconceived” the arguments sought to be raised to the effect that the LCO was bound by law and was liable under Section 73 of the Indian Contract Act 1872 as they cannot apply to the present case.

Similarly, the Tribunal said the amendments made early this year do not help it.

“IndiaCast would indeed be entitled to recover any dues pertaining to the period of the agreement that came to end on 31 March, 2012 but it is not the case that the dues pertain to that period nor from the statement of account it is discernible whether or not there were any dues on the date the agreement came to end,” the Tribunal noted.

It added that clause 8 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations 2004 (Regulations) provides for the maximum period of three months for negotiations for renewal of existing agreements and clause 4A (introduced in the Regulations with effect from 17 March, 2009 prohibits a broadcaster or a distributor of TV channels to make available signals of TV channels to any distributor without entering into a written interconnect agreement.”

In the MSM petition, the interconnect agreement was for the period 1 January, 2011 to 31 December, 2011 under which MSM was to supply the TV channels controlled by it on behalf of its principal broadcasters on payment of Rs 1.25 lakh as the monthly subscription fee. MSM said it supplied the TV channels to the MSO and regularly raised invoices for payment of the monthly subscription fee. The MSO defaulted in payments as a result of which dues accumulated. Finally on 17 December, 2012 MSM discontinued the supply of its signals to the respondent.

In the Asianet case, a carriage agreement dated 8 August, 2011 was signed between the parties for one year from 1 September, 2011 to 31 August, 2012 to carry and retransmit signals of Darshana TV channel of the respondent for an amount of Rs 60 lakh per year exclusive of taxes. The dispute pertains to a period starting from 1 September, 2012 till the disconnection of carriage of signals by the respondent on 20 November, 2013.

December 17, 2015
TDSAT directs 3 LCOs to clear Media Pro’s dues

NEW DELHI: Media Pro Enterprise India Pvt. Ltd., Mumbai has secured orders from the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) for recovering payments from three different cable operators namely Madhumati Cable Network, Shiv Cable Network, and Mauli Cable Network of Maharashtra.

In separate judgments, TDSAT chairman Justice Aftab Alam and member Kuldip Singh directed Media Pro to file a computation of accounts up to 31 March, 2013 within two weeks in the cases of Madhumati Cable Network and Shiv Cable Network for a decree to be dawn up accordingly. The decretal amount will also carry interest at 10 per cent per annum from the date of filing of the petition till the actual payment.

In the case of Mauli Cable Network, the petition was allowed to the extent of the claims of Rs 10,94,481.16. The amount will also carry interest at 10 per cent from the date of filing of the petition till the date of actual payment. The office is directed to make a decree accordingly.

The petition against Madhumati is for recovery of the sum of Rs 8,03,125 along with interest at 18 per cent per annum from the petitioner as dues of subscription fee. Media Pro had executed an interconnect agreement with Madhumati on 20 June, 2012 for supply of its signals to the respondent for retransmission from 1 April, 2012 till 31 March, 2013. In terms of the agreement, the LCO was required to pay Rs 99,000.66 to Media Pro as the monthly subscription fee.

Media Pro alleged that the LCO defaulted in payments and as a result the dues of subscription fee accumulated to Rs 8,03,125. The LCO did not appear despite service of notice.

In the case against Shiv Cable Network, Media Pro claimed for recovery of the sum of Rs 6,28,658 along with interest at 18 per cent per annum as dues of subscription fee. According to Media Pro, the LCO executed an interconnect agreement with it on 1 January, 2012 for supply of its signals for retransmission. The agreement commenced from the date of execution and came to end on 31 March, 2013. In terms of the agreement, the respondent was required to pay Rs 99,778.31 to Media Pro as the monthly subscription fee.

The Tribunal, which also examined witnesses in the latter cases, said there is no reason not to accept the claim of Media Pro for the term of the agreements.

The claim of Media Pro, however, extended to 18 October, 2013 as it is claimed that it continued to supply signals to the LCOs till that date. But the Tribunal rejected this claim in the absence of any renewal agreement.

Both Madhumati and Shiv Cable did not appear despite service of notice and hence, the petition proceeded ex parte.

While allowing the claims of Mauli Cable Network on the basis of the Interconnect agreement, TDSAT rejected the claims made by Media Pro in respect of Zee Turner, which the Tribunal said “appears to be on a different footing. The petition filed on behalf of Media Pro is very sketchy and in so far as the alleged dues of Zee Turner are concerned.” The Zee Turner claim is for Rs 7,71,802.04 on the basis of an undisclosed agreement between the LCO and Zee Turner.

No agreement between Zee Turner and the LCO (or for that matter for supply of signals of Zee Turner prior to 1 December, 2011), which alone can form the basis for the claim for the arrears has been produced before the Tribunal. Five invoices are produced of which the first one is dated 15 December, 2011, that is, shortly after the execution of the agreement on 8 December, 2011. It shows the payment due date as 22 December, 2011 and shows previous period outstanding as nil. Though, apart from the statement of account of Media Pro, a statement of account of Zee Turner has been filed along with the petition, it is of no help in the absence of any agreement between Zee Turner and the respondent. Moreover, the witness examined in the case identified and proved only the Media Pro statement of account and not the Zee Turner statement of account.

December 16, 2015
TDSAT dismisses Media Pro’s 14 petitions seeking payments from cable ops

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has dismissed 14 petitions by Media Pro Enterprise India, Mumbai against cable operators as “there is no material on record even to show what were the dues, if any, of the respondents on the date their respective agreements came to end.”

TDSAT chairman Justice Aftab Alam and member Kuldeep Singh said in fact that three cases by the petitioner were plainly barred by limitation.

The judgment said, “We are satisfied that in none of the cases in the batch, the claim of the petitioner is fit to be allowed. All the petitions are accordingly dismissed with costs at Rs 5,000 per petition payable to the TDSAT Employees’ Welfare Society. A receipt showing payment of the cost should be filed in the Registry within a month from the date of the judgment.”

The three petitions barred by limitation (time-barred) were against S.M. Advertising, Maharashtra; Nileshwar Cable TV Network, Kerala; and Tara Cable Network, Maharashtra.

The other local cable operators (LCOs) against whom the petitions had been filed included five from Gujarat – Narmada Cable Service, Five Star Network, Star Marketing, Anjali Cable Network, and Jai Santoshi Maa; two from Maharashtra – Bhusawal Network and H.R. Entertainment; Rathore Network, Rajasthan; Apna In Cable Broad Band Services, Andhra Prdesh; Nandgaon Cable Network, Chhattisgarh; and Haridwar Cable Network, Uttarakhand.

Media Pro used to be the agent and intermediary of several broadcasters, including Zee Turner Ltd and StarDEN Media Services on the basis of agreements executed with the broadcasters. According to the averment made in the petition, it started its operations as their agent in July 2011. Before that the channels of the aforesaid two broadcasters were given to the distributors on the basis of agreements executed by the broadcasters themselves.

The 14 petitions are for recovery of different sums of money as dues of monthly subscription fees. According to the petitioner, the 14 LCOs were receiving the signals from Zee and Star DEN on the basis of agreements executed with them on different dates, on payment of different sums of money as subscription fees in terms of their respective agreements. It is further the case of the petitioner that on the basis of agreements executed with the broadcasters, it took over the control and distribution of their channels and was also authorised by its principals to collect their outstanding dues from all the distributors, including the present LCOs.

According to Media Pro, after assuming the role of agent and intermediary, it raised invoices against the LCOs for payment of monthly subscription fees as also the past dues of the principal broadcasters. The LCOs, however, failed to make payments against the invoices and as a result dues accumulated, leading to the petitions. Media Pro has claimed the amounts due along with interest at 18 per cent from the date the amount became due till the date of the filing of the petition.

The Tribunal noted that in all cases, the subscription agreement had come to end before Media Pro stepped into the shoes of the agent and the intermediary of the broadcasters. Furthermore, the supply of signals to the LCOs continued for many months even after the agreements had come to end – a fact admitted in the petitions and by witnesses examined.

None of the 14 cable operators appeared despite service of notice. Hence, all the petitions in the batch were proceeded with ex parte. As all are based on similar facts with the exception of the amounts of money claimed and the date of disconnection of signals, all were heard together.

The witnesses said Media Pro requested the LCOs to renew the expired agreements but the latter delayed this on one pretext or other and invoices were raised. The TV channel signals accordingly continued to be retransmitted by LCOs to their subscribers until May 2012.

The said retransmission by the respondent to its subscribers has been duly verified and corroborated by the petitioner through ground verification conducted from time to time and as recent as on April – May 2012.

However, the Tribunal noted, “the averment of Media Pro is thus directly in teeth of the clear directive of the Regulations.”

The Tribunal said clause 4A of the Telecommunication (Broadcasting and Cable Services) Interconnect Regulations 2004 with effect from 17 March, 2009 is clear that the Interconnection Agreements have to be in writing. It further says no broadcaster of pay channels or distributor of TV channels, such as multi system operator or headend in the sky operator shall make available signals of TV channels to any distributor of TV channels without entering into a written interconnection agreement.

December 16, 2015