Tag: Abhishek Manu Singhvi

No BRR implication on b’caster & DPO link flawed: Vijay TV, IBF affidavit rejected

NEW DELHI: Even as arguments concluded in the Star India and Vijay TV case challenging the jurisdiction of Telecom Regulatory Authority of India to issue tariff orders on the ground that content came under the Copyright Act, the Madras High Court directed all parties to submit written statements by 27 July 2017.

The Court refused to accept an affidavit by the Indian Broadcasting Foundation which had neither a notary stamp nor a date. Earlier, in his arguments, TRAI counsel Saket Singh had said that IBF represented a mere 20 per cent of the broadcasters in the country. In fact, the bench expressed its annoyance at the manner in which the affidavit had been presented.

If the written submissions are accepted by the court, it will reserve its judgment in the matter.

Vijay TV counsel Abhishek Manu Singhvi, while presenting his rejoinder, also furnished a number of new arguments, and therefore the court wanted all these to be put into written submissions. Singhvi said that the dichotomy between copyright works and their compilations were false, and TRAIs assertion that a TV channel was a separate product was not ‘protectable.’ He said that public interest would not confer non-existent jurisdiction on TRAI.

In any event, TRAI will continue to regulate carriage and the broadcasters business.

Singhvi said that TRAI seemed to assert that broadcast reproduction rights did not have had anything to do with a channel but was merely a compilation of copyright works. That understanding was flawed. The impression that TRAI was not regulating content but only the manner of offering of the TV channel was completely flawed since price, manner of offering and market place were inextricably linked.

Singhvi contended that TRAI was indulging in disguised encroachment. It might have jurisdiction on transmission but cannot extend to other sectors.

He said the reliance on the 2009 Delhi HC judgement of Star vs Trai was completely misleading. The principles of ‘res judicata’ and ‘constructive res judicata’ would not confer jurisdiction on TRAI to regulate content.

In any event, the issue raised in the instant writ had never been dealt before any court/ tribunal, thus the earlier judgements could not operate as res judicata / constructive res judicata. Similarly, the reliance on NSTPL judgment was completely misplaced. He said acquiescence / estoppel / concession in law was not binding.

TRAI’s reliance on TRAI vs BSNL decision of TDSAT to assert Star was stopped from challenging the regulations was completely misleading.

On his points as rejoinder, he said TRAI and intervenors suggestion that broadcast came into existence only after TV channel signal reaches the set-top box and thus there was no BRR (broadcast reproduction right) implication in the arrangement between the broadcaster and the DPO was completely flawed.

Broadcast comes into existence from the moment the TV channel is uplinked.

TRAI’s argument that the Copyright Act only protects individual programmes as works, and a TV channel being a ‘distinct and different product’ is not protected as a whole under the Act is completely flawed, he said, adding that a TV channel is protected as a broadcast under the Act. The owner of TV channel is granted a substantive right known as the BRR.

The distinction between driver/ non- driver and popular/ non popular channel- while the impinged regulation and Tariff order claim to be content agnostic. TRAI has taken every effort to rely on content to justify and defend them.

TRAI does not have the power to administer the programme code and advertising code under the Cable Networks (Regulation) Act 1995. TRAI’s role as authority under that Act is very limited. It is recognised as an authority only for the limited period of digitisation as governed under section 4A.

The impunged regulation and Tariff directly affects subscription and advertisement revenue of broadcaster which in turn impacts the expenses that can go into curating and programming of Tv channel which in turn directly affects the price at which programmes can be acquired which is nothing but control of pricing of copyright works and content.

Sampling of content is the norm. Bundling of content is beneficial to promote public interest. TRAI’s impugned regulations will impact the diversity and Prularity of views.

Although the Supreme Court had in early May while staying the tariff order directed the Madras High Court to complete hearing within four weeks, the High Court had commenced the in the last week of June.

Meanwhile, TRAI TV reference interconnect offer (RIO) and Quality of service order (QoS) came into effect from 2 May following the order of the High Court.

Apart from the Tariff order which had originally been issued on 10 October last year, the regulator also issued the DAS Interconnect Regulations which had been issued on 14 October last year, and the Standards of Quality of Service and Consumer Protection (Digital Addressable Systems) Regulations which had been issued on 10 October last year.

The orders can be seen at:

AlsO Read :

TRAI can only regulate transmission, not broadcast material: Star tells Mds HC

Decks cleared for TRAI tariff order implementation as HC declines stay (updated)

Star India case questioning TRAI jurisdiction over content postponed

July 20, 2017
Tariff Hike Case: SC rejects appeal challenging TDSAT order; asks TRAI to out new tariff

NEW DELHI: Dismissing the appeal challenging an order of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) setting aside the amendments in two tariff orders, which had sought to put an inflation-linked hike of 27.5 per cent on addressable and non-addressable systems, the Supreme Court today asked the Telecom Regulatory Authority of India (TRAI) to come up with new tariff as early as possible.

The Court also said that the multi-system operators (MSOs) will not insist on a refund of their payments to broadcasters but will wait for the new tariff orders.

Thus, the apex Court held intact the 28 April order of the Tribunal holding as ‘untenable’ the Telecommunication (Broadcasting & Cable) Services (Second) Tariff (Eleventh Amendment) Order, 2014’ and ‘The Telecommunication (Broadcasting & Cable) Services (Second) Tariff (Thirteenth Amendment) Order, 2014’.

Appellants Indian Broadcasting Foundation (IBF), Star India, Vijay Television, Viacom18 and Sun TV had sought stay on the ground of wholesale price index. They also sought to argue that there was consultation prior to issuance of the Tariff orders, which they said were not strictly Tariff orders.

While the appellants were represented by senior advocates Kapil Sibal and Abhishek Manu Singhvi, the defendant Home Cable Network Services Pvt Ltd and Vikki Choudhary were represented by senior counsel Aman Lekhi and Vivek Sarin.

When the appellants late last month sought early hearing, the Court asked TRAI not to give effect to its direction asking broadcasters to roll back the 27.5 per cent tariff hike for non-addressable areas until the next hearing. The regulator had on 27 July asked broadcasters to revise their wholesale tariffs, even though it had noted that the Supreme Court had declined to stay the TDSAT order.

In its order, TDSAT had said TRAI “will be well advised to have a fresh look at the various tariff orders in a holistic manner and come out with a comprehensive tariff order in supersession of all the earlier tariff orders.”

“While doing so, it may consider all the agreements and relevant data available with it. It may consider differentiating between content which is of a monopolistic nature as against that the like of which is shown by other channels also.”

“It may also consider classifying the content into premium and basic tiers. It may identify the major cost components so that increase or decrease in such costs may be suitably factored while working out the inflationary hikes. Increase in costs of such components as may be available in indexes such as Wholesale Price Index (WPI), GDP deflator etc. can then be applied. While working out the tariffs, the effort should be to encourage a correct declaration of SLR. While carrying out the exercise, it may take the inputs from various stakeholders and give a reasoned order for accepting or rejecting the same. We want to be amply clear that the above are only some suggestions and TRAI being an expert body may arrive at suitable tariffs independently; it is up to it to consider the above and/or any other factors,” the Tribunal said.

The IBF had come in as an intervener while the other interveners were direct to home (DTH) operators, MSOs, Association of Cable Operators and cable operators.

TRAI had allowed a 15 per cent hike from 1 April, 2014. The second installment of 12.5 per cent tariff hike came into effect from 1 January, 2015.

TRAI said the inflationary increases given by it were based on increase in the WPI. In the Explanatory Memorandum with the Second Amendment to the Principal Tariff Order, it was explained that for making adjustments for inflation WPI had been used. It was explained that Consumer Price Index (CPI) was not used as latest information for this was not available and further this related to certain specific consumption baskets. As per the Explanatory Memorandum to the impugned Tariff Order, the WPI has increased by 43.69 per cent and giving a pass through of 63 per cent, an inflation linked increase of 27.5 per cent is allowed.

August 4, 2015
TDSAT hearing on ad cap to continue tomorrow

NEW DELHI: The News Broadcasters Association (NBA) contended before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) that the Telecom Regulatory Authority of India (TRAI) did not have powers to regulate advertisements since there was no provision in law giving it the power to deal with content.

Commencing his arguments in the long-delayed petitions challenging the 12 minute ad cap sought to be imported by TRAI, senior counsel Abhishek Manu Singhvi told TDSAT chairman Justice Aftab Alam and member Kuldip Singh that the powers of TRAI with regard to broadcasting other than standards of quality were only recommendatory and it could not make regulations or pass implementable orders.

Furthermore, neither the TRAI Act nor the Indian Telegraph Act 1985 under which it functioned gave powers to TRAI to deal with content.

He said that Section 2(G) of the Cable Television Networks (Regulations) Act 1995 was clear that advertisements fell under content.

The hearing, which commenced today, will continue on a day-to-day basis. The main petitioners are the NBA and TV9. TDSAT had in the previous hearing (31 October) disallowed interventions by some broadcasters that included Viacom 18, Star India and Zee TV.

At the outset, Singhvi also contended that the Supreme Court had itself held that advertisements were the cornerstone of free speech and economy since they gave the financial clout to enable free speech. The apex court had also said that anything curbing the ‘financial spine’ is an inroad into the freedom granted by Article 19(1)(a) of freedom of speech and expression. He said there could not be talk of free speech and expression without talking of the financial spine behind this.

He said that while broadcasting was brought under the ambit of TRAI in January 2000, it was only on 9 January 2004 that an empowering notification was brought in with regard to broadcasting, but it only gave the Authority powers to make recommendations and not pass regulations.

TRAI on 22 March 2013 passed a notification with regard to advertisements, he added.

The implementation with regard to content lay with the Information and Broadcasting Ministry which could do so under the 1995 Act. TRAI only had powers with regard to licensing and quality of service.

At this stage, Justice Alam wondered if granting of license also included abiding by the rules under which the license was issued and this covered both the Broadcast and Advertising Codes.

Singhvi said that in any case, the Uplinking and Downlinking Guidelines only referred to giving permission and not licenses. License had not been defined under the Guidelines.

Senior TRAI counsel Rakesh Dwivedi interjected to say that the Uplinking and and Downlinking Guidelines were clear that the Broadcast and Advertising Codes had to be adhered to, adding that this had not been challenged by anyone.

However, Singhvi said that the Codes were only mentioned under the Cable TV Networks Rules 1994. He said the Rules were brought in when the Cable TV Networks (Regulation) Ordinance was brought in 1994, which was subsequently replaced by the Act of 1995.

Singhvi said that it could also not be said that advertisements were per se bad or pervasive as they could be very creative, adding that the only all pervasive instrument was the remote control.

At this stage, Justice Alam expressed the view that advertisements could be very annoying when one was watching a serious programme.

Singhvi said both the programmes and the advertisements were the lifeblood of the TV channels. He also added that there was no need to interfere as long as the advertisements did not make any incursions into Article 19(2) of the Constitution (which refers to reasonable restrictions on Fundamental Rights).

In any case, TRAI could not arrogate to itself the power to regulate advertisements and content which fell in the domain of the union of India.

He admitted that section 11(2) of the Telegraph Act said TRAI could perform such duties as were assigned to it by the government, but said regulating content had never formed part of this.

In any case, he said a major part of the powers of TRAI were derived from the TRAI Act or the Indian Telegraph Act which related to telecom and not broadcasting. These powers generally related to quality of service.

The legislature never thought it fit to pass a law giving powers relating to content to TRAI, he added.

At another stage, the judge also wondered if the 1995 Act which applied to cable TV could be extended to broadcasters.
Singhvi said that no broadcaster could transmit his signals without resorting to either the 1995 Act or the Uplinking and Downlinking Guidelines.

November 11, 2013
SC tells ESPN to call on it, if govt. seeks to coerce

NEW DELHI: The Supreme Court told ESPN-STAR Sports that it could approach it in case the latter finds itself being coerced by the Central government for not sharing its exclusive feed of the just concluded India-South Africa cricket series with Prasar Bharati.

The court disposed of the application holding that with the statement of the government, nothing survives in the application.

The bench, comprising Justice Ashok Bhan and Justice Dalveer Bhandari, on recording the statement of Additional Solicitor General Amrender Saran, that till date, the government had not taken any coercive step, and if it decides to do so, it would issue a show-cause notice, said then the applicant would be free to approach the court, as the series is already over.

Incidentally, a petition challenging the government guidelines to compulsorily share feed of every national or international tournament with the public broadcaster, namely Doordarshan, in public interest is already pending in the court.

Earlier, senior counsel Abhishek Manu Singhvi, appearing for the channel, had contended that his application was for stay of coercive steps and must not be confined to the India-South Africa cricket series.

ESPN-Star Sports had last week stated that it had filed a writ petition in the Delhi High court seeking to quash the downlinking guidelines, issued in November 2005, compelling the television channels to share the telecast of all matches, even if they were played outside India. This petition was subsequently shifted to the apex court.

The petitioner had said that though it had exclusive rights for the telecast of the matches, it apprehended that the government would penalise the channel by invoking the provisions under the downlinking guidelines.

Prasar Bharati had requested it to share the Star-ESPN feed with Doordarshan’s terrestrial channel and proposed sharing of revenue in the ratio of 75:25.

ESPN-Star Sports had said it would be willing to share the dirty feed (the signal along with advertisements and logo) provided Prasar Bharati paid Rs 35 million for one-day internationals as compensation for loss of subscription revenue.

It was apparent that Prasar Bharati only wanted to make money and was not really interested whether the public were able to watch cricket matches or not, the petitioner had argued.

It had sought quashing of the guidelines on downlinking policy.

In response to that and the hearings today, the Apex court today told ESPN to come back to it if they felt coercion is being resorted to.

January 9, 2007