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Category: TDSAT

  • TDSAT & Ad cap: TRAI almost done with its arguments

    TDSAT & Ad cap: TRAI almost done with its arguments

    MUMBAI: The third day of the arguments presented by the Telecom Regulatory Authority of India (TRAI) saw several crucial points being touched upon and the TDSAT also noting down points that could be pondered upon for rumination.

    The TRAI counsel Rakesh Dwivedi pointed out that if one reads section 7 (11) of the Cable TV Networks (CTN) Act then it must be read with the ad cap regulation because the regulator was using it only to enforce this section.

    Section 7 (11) states that the authority has the power to ‘seize equipment used for operating the cable television network if it is found to be breaching its other sections’.

    According to the TRAI, programmes and advertisements are different and the regulator is trying to prevent intermixing of these two and ensuring an increase in quality of service.

    The regulator also gave its version regarding Article 19 (a) of the Constitution saying that airwaves and frequencies are a public property of the government and so there is no fundamental right that can apply to it. Electronic media and press are different and cannot be treated equally. Broadcasters are companies and not citizens so fundamental rights don’t apply to them, Dwivedi argued.

    The point about misuse of clock hour was once again raised by Justice Aftab Alam to which the TRAI reverted by saying that the clock hour regulation instituted by the TRAI and the CTN Act are the same thing and they cannot be interpreted in any other way. Broadcasters are thinking of a bankable hour, that can be carried over within 24 hours but the TRAI says that a clock hour is fixed.

    The bench questioned the TRAI that if it could have enforced the ad cap law under the CTN Act then it need not have made a separate regulation or a direction or use the TRAI act for it.

    To this, counsel said that the CTN Act only applies to cable operators at this stage. And just because they have two powers that are coinciding they cannot take away one power. The point where broadcasters come into the picture of this Act, is for the advertising and programming code, which they have to adhere to by virtue of them having to apply for an uplinking and downlinking licence.

    The TRAI counsel also requested that merely because it had framed a regulation or passed a direction the bench may not nullify it because it has passed it under the TRAI act and not the CTN act, although it has powers under both. He also requested that if the bench were to find anything wrong with the ad cap regulation, they may modify it. However, Alam said that it cannot be done since it was a delegated regulation. To this TRAI asked the bench to consider it as a direction and then modify it keeping in mind the best interest of the viewers.

    One of the arguments, that the counsel raised, relates to Article 14 of the Indian Constitution that speaks about the fundamental right to equality. He stated that it would be in fair spirit if cable operators and broadcasters are not equated with each other at this juncture. The TRAI counsel presented data which clearly showed that broadcasters were airing TV commercials for an unbearable duration every day in between programmes and hence it had decided to apply the ad cap to them first. The limits on TV commercial time will be imposed on cable operators later by the TRAI, the counsel revealed. And the fact that cable ops will be made to comply later does not mean that broadcasters should be excluded from the ad cap now.

    The counsel said he would be addressing the issue of clubbing channel genres together on Monday.

    The bench asked the TRAI why it wasn’t willing to wait till digitization was completed to impose the ad cap regulation. The TRAI argued that by September 2014, nearly 50 per cent of the country will be digitized. Hence it was a good enough reason to bring in ad time limits rules now so that TV air time could be slowly modulated over the period. The TRAI counsel agreed the regulation may not be perfect in its current form, but that does not give the TDSAT a reason to strike it down.

    Regarding FTA channels, Dwivedi said that the broadcasters had not given the TRAI any financial or commercials analysis of the minute by minute usage of ad time and data to support that ad revenues will indeed fall when the ad cap comes into effect. Hence, the regulator had made a general reccee of the channels and deduced what needed to be done and only then drawn up the ad cap regulation. It also stated that FTA channels don’t have too many ads so TRAI did not know why they were objecting to it.

    At the end of the proceedings, an important observation was made by the TDSAT that if the ad cap regulation is struck down, no law can be contended except section 7 (11) of the CTN Act, because broadcasters have accepted this act. Articles 14 and 19 (1) (a) of the Constitution are against the imposition of the ad cap regulation and then the only thing that remains is the interpretation of the 7 (11) section of the CTN Act.

    The TRAI will continue with its arguments on Monday and the broadcasters are scheduled to speak after that.

  • TDSAT & Ad cap: TRAI continues arguments

    TDSAT & Ad cap: TRAI continues arguments

    MUMBAI: Continuing to present its side to the Telecom Disputes Settlement Appellate Tribunal (TDSAT), the Telecom Regulatory Authority of India (TRAI) put forth its arguments to the bench consisting of Justice Aftab Alam and member Kuldip Singh.

    It started off continuing on yesterday’s argument trail saying that the law does not state that if the laying requirements are not fulfilled then it becomes void. That is, TRAI cannot execute its regulation on channels. That broadcasters are covered by both the Cable TV Networks Act and the TRAI act is a parliamentary mandate and there is nothing illegal in what it is doing. There are several precedents where a subject matter could be covered by more than one statute,  TRAI counsel  Rakesh Dwivedi stated.

    TRAI also claimed that it has a clear parliamentary mandate exercised through the central government to regulate advertisements. It contested the broadcasters’ arguments that TRAI has just a recommendatory role, by highlighting that it has an additional function under section 11 (1) (a) of the TRAI  Act and that does not mean its plenary functions under section (11) (1) (b) are taken away. Therefore, apart from its recommendatory function under (a), its powers also remain under (b). Both the sub clauses complement each other and there is no clash, the counsel stated.

    Reiterating that it has the authority, it said that what it is aiming to do is in perfect accordance with the powers the ministry and it has under section 7 (11) of the Cable TV Act. Likewise, the counsel, said it is not as if the government is seeking to have a higher allowance for advertising air time and is in disagreement with the limit of 12 minutes that the TRAI is seeking to impose.

    To support its argument, the counsel also read out various preceding judgments. According to the TRAI, broadcasters are licensees under the Telegraph Act and so the regulator has full power to ensure compliance within the licence term.
    Singh asked if TRAI can direct Google on the duration and number of ads it can run. To this, the TRAI counsel replied by saying: ‘I am the regulator and I will decide who, when and how much to regulate.

    Coming to the point raised yesterday about a statement TRAI had made in 2004 that “there should not be any regulation at present on advertisement on both FTA and Pay channels” it said that much water had flown under the bridge since it made its statement and the situation was different today. So, it can deem it appropriate to regulate since an expert opinion at one point of time does not mean that it will stay forever, the counsel stated.

  • What the music channels said on the ad cap issue

    What the music channels said on the ad cap issue

    MUMBAI: After the News Broadcasters Association (NBA) presented its side of the story, it was the turn of the music channels to present their case in the Telecom Disputes Settlement Appellate Tribunal (TDSAT) regarding the troublesome 12 minute ad cap regulation that is being enforced by the Telecom Regulatory Authority of India (TRAI).

    The hearing that went on for two days (Monday and Tuesday) had the music channels counsel speaking on behalf of the four music channels – 9XM, B4U, M Tunes and Mastiii. The main point raised was violation of Article 14 of the constitution of India by the TRAI. The Article states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.
     
    According to counsel, the TRAI is violating Article 14 by putting all the channels in the same basket. There are different types of broadcasters delivering both free to air and pay channels in the genres of news, sports, music etc. It is inappropriate to be treating ‘unequals as equals’ by classifying all channels in the same category, counsel emphasized. To support his argument, he said that FTA channels don’t get subscription revenue and work on purely advertising while pay channels have the benefit of both.
     
    Apart from this, other issues raised during the hearing were similar to the ones the NBA counsel had raised such as the jurisdiction of the TRAI to come out with such a regulation, unregulated and high carriage fees and high cost of content production.
     
    There is a long list of channels that will now present their cases in front of the TDSAT bench of Justice Aftab Ahmed and member Kuldip Singh including Reliance Big Broadcasting, Sun TV Network, Raj TV, E24 Glamour, Eenadu Television and Polimer Media.
     
    After this, TRAI will defend itself. The hearing is set to continue today.
     
    This is surely one case that will take much time to resolve.

    To read about previous reports on the case scroll down.

  • Day 3 of TDSAT ad cap hearings

    Day 3 of TDSAT ad cap hearings

    MUMBAI: The queue of channels waiting their turn to present their individual cases on the so-called crippling TRAI 12 minute ad cap to the Telecom Disputes Settlement Appellate Tribunal (TDSAT) has not really got any shorter even as the hearings got into the third day. The reason: the News Broadcasters Association’s (NBA) lawyers continued with their arguments in the presence of TDSAT’s Justice Aftab Alam and member Kuldeep Singh.  

    And with their presentation referencing statutory laws as relating to the Cable Television Networks (Regulation) Act and the TRAI Act 1997 completed they have now progressed to bringing in references about media freedom as written in the Article 19A of the Indian Constitution. 

    The NBA counsel referred to the ‘Sakal Papers And Others vs The Union Of India on 25 September, 1961’ case. The Supreme Court had then affirmed that a newspaper should have the liberty to carry as many advertisements as it would want to because ‘curtailment of advertising is a curtailment of free speech as guaranteed by the Constitution of India.  

    The declaration of this case reads: ‘the state could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose of regulating the commercial aspect of the activities of newspapers.’ 

    According to the NBA, since such a  ruling exists for print newspapers, it should also apply to the broadcast medium. However, Alam tended to disagree and opined that that the electronic medium is different from print.

    The NBA also contended that broadcasters don’t actually get a ‘license’ from the central government under The Telegraph Act 1885 but rather a ‘registration’ under the uplinking/downlinking policy guidelines. However, the justice  doubted that the broadcasters don’t get a licence, and he also felt that broadcasters don’t come under the cable TV act as the NBA is claiming. 

    During the 12 November hearing, the NBA had argued that TRAI had not done the laying requirements as per section 37 of the TRAI Act which it should have in order to carry out enforcement of ad cap and prosecution of erring channels.

    The hearings are slated to continue tomorrow morning with the NBA and its lawyers presenting their arguments.  For the other channels, the wait continues. To read about previous reports on the case scroll down.

  • TDSAT: Ad cap saga continues on Day 2

    TDSAT: Ad cap saga continues on Day 2

    MUMBAI: The hearings on TRAI’s proposed 12 minute ad cap regulation by the Telecom Disputes Settlement Appellate Tribunal (TDSAT) that began yesterday look unlikely to get over in a hurry. For the past two days it is the News Broadcasters Association (NBA) which has been presenting its case to the tribunal. Today, the NBA counsel raised the point that the TRAI had not fulfilled the laying requirements to the parliament as per section 37 of the TRAI Act which says that “the Regulations made by the TRAI have to be placed before the Parliament to seek its approval. Thus, there can be no dispute that the regulations framed by the TRAI have the force of law having been made through the process of subordinate legislation provided they are consistent with the Act and Rules.”

    Any law infringing the fundamental rights of the people needs to be laid before the parliament after which it can be either annulled or amended or approved by the parliament, says a counsel. A senior broadcaster who has been following the case closely says, “If anything is a law then it has to be passed by the legislature.”

    Therefore, the NBA said that TRAI is crossing its line by enforcing the ad cap and prosecuting channels that aren’t following it. TDSAT Justice Aftab Alam wanted to know from TRAI if they had laid it before parliament as it’s an issue that should have been dealt in the preliminary stages itself to which TRAI did not have a substantial reply.

    In yesterday’s hearing, one of the points put forth by the NBA counsel was section 2(G) of The Cable Act of 1995 according to which advertisements are a part of content. At this, TDSAT wondered how a broadcaster can come under this act. Counsel for NBA today validated the position under this act by stating that permission for uplinking falls under the Cable Act bringing broadcasters under this Act. It also says that channels adhere to the programme code.

    Since the Cable Act comes under the jurisdiction of the Information and Broadcasting (I & B) ministry, broadcasters fall under the purview of the I & B ministry and not TRAI.

    NBA also contended yesterday that TRAI does not have the authority to regulate content and its powers are restricted only to licensing and quality of service while content regulation falls under the ambit of the I & B ministry. Neither the TRAI Act nor the Indian Telegraph Act, under which TRAI works, gives the regulator the powers to deal with content.

    The case will continue tomorrow post noon when NBA will put forth more points in front of the TDSAT.

    Read here for yesterday’s hearing:
    TDSAT hearing on ad cap to continue tomorrow

  • Ad cap petitions adjourned till 11 November

    Ad cap petitions adjourned till 11 November

    NEW DELHI: The case challenging the adcap regulations sought to be implemented on television channels was today adjourned to 11 November by the Telecom Disputes Settlement and Appellate Tribunal.

    TDSAT Chairman Justice Aftab Alam and member Kuldip Singh also rejected the interventions filed by Zee, Star and Viacom18, with the Tribunal asking them to file separate applications.

    The News Broadcasters Association had moved TDSAT challenging the constitutional validity of the regulations of Telecom Regulatory Authority of India enforcing the ad cap.

    Several other broadcasters – mostly general entertainment channels – had later moved TDSAT, but the Tribunal had in 30 August accepted the argument by NBA that the cases of the general entertainment channels could not be clubbed with the petition of NBA.

     The news channels are seeking relief from the 10+2 ad cap regulation prescribed by TRAI.

    Senior Counsel Abhishek Manu Singhvi on behalf of the NBA sought time as the pleadings were not ready.

    Some regional channels from Kerala also wanted to intervene as petitioners, but TDSAT said their matter would be heard after the main hearing.

    Channels that sought to move to the court today included 9X, B4U, TV Vision and Pioneer Channel Factory of Mumbai, Sun TV Network of Chennai, E24 Glamour, Polimer Media, Reliance Big Network, Eenadu TV, Sarthak Entertainment and Raj TV.

    Later, some general entertainment channels including music channels had also approached TDSAT in various petitions and the Tribunal had decided to hear these matters after the NBA matter.

    Counsel for TRAI said that an anomalous situation had been created with some channels having accepted the adcap with effect from 1 October. It was therefore requested that the matter be resolved once for all.

    Meanwhile, TRAI had been forbidden on 30 August from taking any ‘coercive action’ against news channels who are not abiding by the agreement relating to advertisement time on news channels.

    The Tribunal also said that while the news channels will maintain weekly records of the advertising time per hour on a weekly basis, they will not be required to submit this to the regulator as being done at present and will only submit these to TDSAT at the hearing of the case.

    Counsel for the NBA A J Bhambani had said on 30 August that a delegation of the Indian Broadcasting Foundation had submitted a formula to the regulator but that did not preclude the broadcasters from challenging the validity of the Regulations. He also said that this was only a compromise reached between the broadcasters and the regulator and could not form the basis of penal action since it was not a regulation or legal provision. He had added that there were many members who were common to both the IBF and the NBA, and therefore the IBF had submitted a ‘proposal’ on 29 May this year, which the TRAI accepted. But this could not be construed as a regulation.

    Even otherwise, he argued that TRAI was only empowered by its own Act to make ‘recommendations’ on issues like advertisements and not bring about or enforce regulations and resort to prosecution.

    When the law was invoked by the Authority in May 2012, it was disputed by television broadcasters which had also challenged the jurisdiction of TRAI in this regard before the Tribunal.

  • TDSAT admits petition by LCOs wanting right of billing under DAS

    TDSAT admits petition by LCOs wanting right of billing under DAS

    NEW DELHI: Cable operators in the state of Maharashtra have got a head start regarding the billing system for cable television under DAS that MSOs are planning to put into effect. The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has accepted its petition and the case filed by the Nasik District Cable Operators Association of Maharashtra will come up for hearing on 22 November.

     

    Counsel Vikram Singh submitted that while the services were being provided by the local cable operators, the billing was meant to be done by the multi-system operators under the Standards of Quality of Service (Digital Addressable Cable TV Systems) Regulations 2012 of the Telecom Regulatory Authority of India.

     

    TRAI counsel Saket Singh sought to argue that LCOs cannot approach TDSAT as they are not service providers. However, the Bench of Member Kuldip Singh admitted the case for hearing and asked TRAI to file its counter-affidavit.

     

    It has also been stated in the petition that cable TV operations cannot be equated with telecom services since there was only one service provider for mobiles while there were the MSOs and the LCOs in television.

     

    Regulation 14 of the Regulations issued on 14 May 2012 says ‘Every multi-system operator shall offer cable TV services on both pre-paid and post-paid payment options to the subscriber and shall be responsible for generation of bills for the subscribers.’

     

    Regulation 15 says ‘Every multi-system operator either directly or through its linked local cable operator, as the case may be, shall give to every subscriber the bill for charges due and payable by such subscriber for each month or for such other period as agreed between the parties, for which such charges become payable by the subscriber.

     

    The LMOs in Maharashtra have been fighting against the alleged dominance shown by MSOs by imposing restrictions on them as well as dictating terms relating to billing practice. A cable TV blackout was also held in various parts of the state from 6pm to 9pm on 2 October as a sign of protest.

  • TDSAT directs Media Pro to restore signals to Lucknow MSO

    TDSAT directs Media Pro to restore signals to Lucknow MSO

    NEW DELHI: In an order that may help multi-system operators whose applications for DAS licence are pending with the government, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has directed Media Pro Enterprises to restore television signals to Lucknow-9 Cable Network of Lucknow as an interim measure.

    The Lucknow-based operator had said that its application for licence under Digital Access System (DAS) has been pending before the Information and Broadcasting Ministry for several months.

    Chairperson Justice Aftab Alam and member Kuldeep Singh also directed the Lucknow network to file an affidavit to the effect that its application filed in the Ministry for grant of license under Rule 11 C of the Cable Television Networks Rules, 1994 was not defective but was complete and in order, in all respects. It would also file a copy of the application in a sealed cover.

    Meanwhile, the Lucknow-based operator would pay to content aggregator Media Pro all dues following a reconciliation of accounts and further to file an undertaking before this Tribunal that it would transmit or retransmit programmes of any channels following the provisions of section 4 A of the Cable Television Networks (Regulation) Act, 1995. This undertaking has already been filed.

    Media Pro counsel Tejveer Singh Bhatia had told the Tribunal that his client could not supply the signals as it was prohibited from doing so under clause 3(2) of the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Television Systems) Regulations, 2012 ‘for the simple reason that the Petitioner did not have a license under Regulation 11 C of the Cable Television Networks Rules, 1994.’

    But Counsel for the operator Vikram Singh said as there was inordinate delay in the grant of license, the operator had approached the Lucknow Bench of the Allahabad High Court which had disposed off the Petition by order dated 2 June 2013 directing the concerned authority to rid the application for license within 15 days from the date of receipt of the certified copy of that order. Counsel also stated that the date stipulated in the High Court’s order has expired on 2 July 2013 but it has so far not received any communication in regard to its application for the license.

  • TDSAT adjourns Tata Sky vs Zee case

    TDSAT adjourns Tata Sky vs Zee case

    NEW DELHI: The Telecom Disputes Settlement Appellate Tribunal on Friday adjourned the hearing in the appeal by Tata Sky against Zee Turner’s demand for carrying all the channels they have on offer.

    The case, which relates also to the technical issue of transponder constraint, has been adjourned till 9 February, as the counsel for Zee Turner contested the contention of Tata Sky that the regulations of Trai did not have a “must carry” provison., but just a “must provide” provision.

    The Zee Turner counsel said that there exist two specific Trai-issued documents that could be placed in the court right away, or later, as the court thought fit, which show that Trai regulations carry a “must carry” provision. The court finally fixed 9 February as the date for filing those documents with a note from the Zee counsel.

    Reading out the affidavit to seek to prove his point, the Tata Sky counsel said that Trai had made four points in the affidavit: first, that it was considering the issue and consultative paper would be issued, without fixing a timeframe for that; secondly, that the affidavit does say that there are capacity constraints on the transponders; thirdly, that DTH is at par with the cable operations, being an addressable system; and finally, that Trai says its regulations did have a “must provide”, but not a “must carry” provision.

    Tata Sky’s argument was that since the regulations did not enforce any “must carry” provision, the DTH operator was not bound to carry all the channels provided as package/s by a broadcaster.

    To this, however, the Zee counsel asserted that there were two earlier documents by Trai that specifically assert a “must carry” provision, and these could be produced in the court.
    Part of the dispute between Tata Sky and Zee Turner rests on the fact that the latter has been insisting that the DTH operator carry all its channels and could not “pick and chose” from them.

    The former had argued that the transponder constraint does not allow them to run each and every channel from a broadcaster they take signals from.

    In this context, in the earlier hearing on 2 January, Tdsat had asked Trai to look into the transponder issue as well as other issues. Trai has said today that transponder constraint is a reality.

    On this, Tata Sky today pleaded that since Trai was considering issuing a consultation paper, and yet, not fixed a date for that, Tdsat may ask Trai to fix a date and issue an interim order to that effect.

    However, the proceedings took a different turn with the Zee Turner counsel bringing up the issue of Trai documents mandating a “must carry” provision.

  • FTA subscription sharing: TDSAT for expanded review by Trai

    FTA subscription sharing: TDSAT for expanded review by Trai

    NEW DELHI: The Telecom Disputes Settlement Appellate Tribunal (TDSAT) has sent back the case related to MSO’s demanding a share of the Rs 77 for FTAs to be paid by consumers under the Cas regime, for an expanded review by the Telecom Regulatory Authority of India (Trai).

    The tribunal, in its order issued yesterday, said that the process would have to be completed within six weeks.

    According to the TDSAT, since the case is of great importance and has wide repercussions, Trai should also incorporate the views of all stakeholders, including those of the cable operators.

    Wire and Wireless India Limited (formerly Siticable) had filed the case against the 31 August, 2006, order by Trai, giving to the cable operators the entire Rs 77 that consumers pay for Free-to-air channels under the Cas regime.

    “We said that if this is done under the Cas regime, the Rs 75-odd in fees that we get for carrying pay channels will not even cover our variable costs, let alone overheads,” Arvind Mohan, vice president, WWIL, told Indiantelevision.com.

    In the court the WWIL counsel proffered his logic, stating that Trai had said that while cable operators could keep the Rs 77, MSOs could keep the subscription from pay channels, as well as the carriage fees.

    However, the subscription for the pay channels would also be shared between MSOs and LMOs as well as broadcasters, as per a Trai formula.

    ‘Carriage fees’ are the amount charged by MSOs for carrying a certain pay channel in the ‘prime band’ or ‘colour band’, that is, special, viewer-preferred slots. This was applicable when the channels were streamed in the analogue system, because in that system, the number of channels would be limited to a maximum of 60.

    Under the Cas system, where digitalisation is compulsory, the number of channels shown can be innumerable, theoretically, and not less than 600, or 10 times that under the analogue system.

    WWIL argued today that Trai itself had gone on record that ‘carriage fees’ are a temporary phenomena and would disappear under the Cas regime, because the carrying capacity would shoot up from 60 to at least 600. Hence, the MSOs would lose that avenue of revenue.

    Trai argued that sharing of the FTA purse would lead to disputes and hence it had opted for a simple formula that MSOs could keep the carriage fees and the cable operators could keep the Rs 77 from the consumer subscription for FTAs.

    The tribunal, however, felt that he matter was seminal and the views of all the stakeholders need to be incorporated, and asked Trai to file the response of the views of all parties concerned within six weeks.

    Incidentally, this is the second time in two weeks that TDSAT has asked Trai to review aspects of an important case. The first was last week when TDSAT asked Trai to give their views on transponder capacity issue after examination of the facts. That case too, had been filed by Siticable, now known as WWIL.