Tag: B B Srivastava

TDSAT rejects DD’s interim measure for FreeDish

NEW DELHI: While giving relief to slot-holders on Doordarshan FreeDish, to ensure their continuity till the government decides its new policy over the next two months, the Telecom Disputes Settlement and Arbitration Tribunal (TDSAT) also rejected the interim formula proposed by Doordarshan in its letter to the main petitioner Cinema 24×7.

TDSAT chairman justice Shiva Keerti Singh, and members B B Srivastava and A K Bhargava said: “We find no good reason either from the submission or from the order of the respondent (Prasar Bharati) as to why the earlier direction and policy on pro-rata basis is being discontinued, that too when the respondents have claimed that a regular policy to replace the existing policy is likely to come within two months.”

The tribunal also rejected the submission by Prasar Bharati counsel Rajeev Sharma and additional solicitor general Tushar Mehta that no interim order was required in view of the order of Prasar Bharati of 27 October 2017.

The tribunal fixed the next date of hearing on 14 December 2017 and said that rejoinder if any by the broadcasters could be filed within two weeksafter the four weeks given to Prasar Bharati to file its reply.

The full text of the order of the tribunal was:

“To avoid undue hardship to the petitioners and possible discrimination vis-a-vis those who have been earlier granted continuity on pro-rata basis, we pass the following interim directions:

(i) The petitioners or others similarly situated as them, who need continuity because of non-holding of the e-auction and have applied or apply for the same, shall be allowed continuity on pro-rata basis.

(ii) The respondent will be entitled to charge on pro-rata basis either on the basis of the highest bid amount or the reserved price whichever is higher. We further clarify that the highest bid amount would mean the highest bid in that category in the preceding year.

(iii) This interim order will not create any right or equity in favour of anyone and the arrangement shall come to end as soon the central government declares its new general policy and take steps to fill up the slots in accordance with such policy. It is clarified that it will not be open for any petitioner or other operator to claim any right to continue on the basis of such interim arrangement.

(iv) The benefit of this interim arrangement shall be made available to the willing petitioners and other similarly situated operators at once and in any case within three days of their approaching the concerned respondent with an application.

All the petitions are admitted.”

The tribunal also analysed the proposed interim formula proposed by Doordarshan. It said “In the final analysis, the order declares the stand of the respondent with regard to “interim measures” in the following words:

“Now therefore in view of above, DD can as an interim measure follow a model on the pattern of FM auction policy of the government for two months or till the central government policy is made, whichever is earlier for the channels which are going to be off the air, on completion of their contract period may be offered continuity of operation at the highest bid amount for any of the channels auctioned in the past, together with revenue sharing at the rate of 50 per cent of the gross profit or 4 per cent of the gross revenue or 2.5 per cent of upfront highest bid amount whichever is higher. This system, as an interim arrangement, should be operated on first come first served basis if the terms and conditions of the short duration extension are acceptable to the existing contract holder.

The interim arrangement / measure is irrespective of and notwithstanding the contents of the proceedings pending before the hon’ble tribunal and / or any other proceedings, if any, this interim measure will not create any right or equity in favour of anyone and shall come to end automatically upon the central government declaring its policy or after two months whichever is earlier and it will not be open for any operator to claim any right to continue or any other right based upon such an interim measure.”

Sharma and Mehta had made it clear during arguments that this formula was akin to the formula applied in the FM Radio auctions.

Apart from Cinema 24×7 which runs WoW Cinema and News Nation Network Pvt Ltd who had filed the case, four other petitioners joined the case yesterday with fresh petitions: Enterr 10 TV Pvt Ltd, B4U Broadband India Pvt Ltd, Independent News Service Pvt Ltd, and ABP News Network Pvt Ltd.

These broadcasters filed either because of their channels having either gone off the air or the likelihood that they will go off air very soon due to efflux of time leading to expiry of the annual agreement and a decision by the respondent not to hold the 37th e-Auction till further orders. The letter to Cinema 24×7 itself noted that some channels are going off air this month and some in February next year.

The tribunal was informed in September by Prasar Bharati that the e-Auction was put on hold because a new policy was under contemplation and the pubcaster wanted to take steps for filling the slots falling vacant in terms of the new policy.

The tribunal noted that: “The petitioners have no quarrel with the stand and they are not opposed to the respondent taking steps for filling up the slots on regular basis as per their new policy as and when it is formulated and implemented. Their grievance is that such producers who have been enjoying slots on the basis of their offer in the auction should not be thrown out of their vocation and the public should not be deprived of their channel because of there being no policy in the interregnum. They are against such state of vacuum”.

October 28, 2017
Jio HNY: TDSAT raps TRAI as contest deepens

MUMBAI: Telecom tribunal TDSAT has ordered the Telecom Regulatory Authority of India (TRAI) to take a stand on Reliance Jio’s free 4G offer in reasonable time. A tribunal bench, comprising A K Bhargava and B B Srivastava, heard arguments of both sides — TRAI and Airtel — and posted the matter for 1 February, PTI reported.

Meanwhile, other telecom operators in the country are scrambling to catch up.

The new TDSAT order came while hearing a petition filed by Bharti Airtel, against TRAI decision allowing Reliance Jio to continue with its promotional offer beyond the stipulated 90 days, alleging that the regulator acted as “a mute spectator” to violations.

Reliance Jio earlier chose not to respond to queries regarding its reply to TRAI that was expected on 29 December in connection with questions raised against alleged violations in extending its free offer till 31 March 2017 much beyond its introductory offer. After two emailed queries and phone calls from indiantelevision.com, Jio chose not to respond.

Airtel had filed a petition before TDSAT accusing TRAI of being ‘sleeping trustee’ to the violations carried out by Jio. In the petition, Airtel had alleged that TRAI had “erroneously” concluded that since Jio’s promotional offer of free services was only valid till 3 December, it is consistent with the direction for 90 days.

Jio, in a meeting with TRAI, had reportedly said that the latest offer was different from the previous offer as, in the former, the company provided 4GB of free data per day, but in the latter case, it restricted the free internet up to 1GB under Fair Usage Policy. Jio also stressed the fact that in the new offer if the data limit was exhausted, then one had to buy recharge vouchers, which was not the case in the initial offer.

Meanwhile Airtel and Idea offered free data to woo 4G users eventually deepening the telecom price war. Bharti said it would offer three gigabytes of free 4G data per month until the end of the year for customers who switch to some of its plans from other carriers and to existing customers who upgrade to 4G by 28 February. Idea Cellular is reportedly going to offer unlimited free data to topple Jio and Airtel’s plans. Idea, which ranks third in Indian telecom ranking, will now come up with new 4G data packs with an extended validity of up to one and half years. BSNL has also started offering unlimited free calls for six months at Rs 144. Vodafone and BSNL too have come up with cheaper plans.

Also read: TRAI violations query: Reliance Jio mum on ‘response’

January 6, 2017
Jio HNY: TDSAT raps TRAI as contest deepens

MUMBAI: Telecom tribunal TDSAT has ordered the Telecom Regulatory Authority of India (TRAI) to take a stand on Reliance Jio’s free 4G offer in reasonable time. A tribunal bench, comprising A K Bhargava and B B Srivastava, heard arguments of both sides — TRAI and Airtel — and posted the matter for 1 February, PTI reported.

Meanwhile, other telecom operators in the country are scrambling to catch up.

The new TDSAT order came while hearing a petition filed by Bharti Airtel, against TRAI decision allowing Reliance Jio to continue with its promotional offer beyond the stipulated 90 days, alleging that the regulator acted as “a mute spectator” to violations.

Reliance Jio earlier chose not to respond to queries regarding its reply to TRAI that was expected on 29 December in connection with questions raised against alleged violations in extending its free offer till 31 March 2017 much beyond its introductory offer. After two emailed queries and phone calls from indiantelevision.com, Jio chose not to respond.

Airtel had filed a petition before TDSAT accusing TRAI of being ‘sleeping trustee’ to the violations carried out by Jio. In the petition, Airtel had alleged that TRAI had “erroneously” concluded that since Jio’s promotional offer of free services was only valid till 3 December, it is consistent with the direction for 90 days.

Jio, in a meeting with TRAI, had reportedly said that the latest offer was different from the previous offer as, in the former, the company provided 4GB of free data per day, but in the latter case, it restricted the free internet up to 1GB under Fair Usage Policy. Jio also stressed the fact that in the new offer if the data limit was exhausted, then one had to buy recharge vouchers, which was not the case in the initial offer.

Meanwhile Airtel and Idea offered free data to woo 4G users eventually deepening the telecom price war. Bharti said it would offer three gigabytes of free 4G data per month until the end of the year for customers who switch to some of its plans from other carriers and to existing customers who upgrade to 4G by 28 February. Idea Cellular is reportedly going to offer unlimited free data to topple Jio and Airtel’s plans. Idea, which ranks third in Indian telecom ranking, will now come up with new 4G data packs with an extended validity of up to one and half years. BSNL has also started offering unlimited free calls for six months at Rs 144. Vodafone and BSNL too have come up with cheaper plans.

Also read: TRAI violations query: Reliance Jio mum on ‘response’

January 6, 2017
Clarify status with Star India, TDSAT asks Canara Star

NEW DELHI: Canara Star Communications Pvt. Ltd Karnataka, which has a long-pending dispute with Star India with regard to payments, has been given one more opportunity by the Telecom Disputes Settlement and Appellate Tribunal to reply to an affidavit of 23 March 2016 by the broadcaster alleging there was no entity of the name of the MSO on the website of the Corporate Affairs Ministry.

Canara Star was given one more week from 20 December 2016 to file its affidavit, and Star India was permitted to respond to the affidavit if it so desired.

Members B B Srivastava and A K Bhargava put up the matter for further hearing on 20 January 2017.

The Tribunal said: “It is seen that the affidavit which has been filed by Canara Star is not prima facie in conformity with the directions given by the Tribunal on 18 December 2015.

Canara Star had originally come before the Tribunal against disconnection notices by Star India as for default in payment. One of the grounds on which the disconnection notice was challenged was that another MSO had started operating in those areas and, as a result, the petitioner’s subscriber base had gone down substantially and the petitioner had been making request for downgradation of its subscriber base and consequently a reduction in the fixed fee payable by it as monthly subscription fee.

As there appeared to be some substance in the petitioner’s grievance, and, on a joint request, the matter was referred to the Mediation Centre. The Tribunal was informed that, before the Mediation Centre could intervene, the parties were able to arrive at some understanding in regard to Kumta and Bhatkal areas but Canara Star was also getting signals from Star India for transmission in the DAS area of Bangalore and there too the MSO happened to be in default in payment of the subscription fees.

Star India wanted a comprehensive settlement that should cover both analogue and digital areas covering Bangalore also.

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

Earlier this year, Canara Star had been asked by the TDSAT to present a payment schedule to Star India to settle their dispute.

However, then chairman Justice Aftab Alam and members — Kuldip Singh and B B Srivastava accepted the plea by Star India counsel Arjun Natarajan that this schedule should not come in the way of its requirement to furnish a guarantee. Earlier, on 4 February, the Bench had granted a week’s time to Canara Star represented by Counsel Tushar Singh, to furnish a guarantee.

In terms of the earlier order of 14 January, the directors of Canara Star were present in person before TDSAT on 29 January.

In the hearing in third week of December, 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 around Rs 3 crore pertaining to the MSO’s operations in DAS area of Bangalore said this was subject to the two parties failing to arrive at a final settlement.

Also read:

Canara Star asked by TDSAT to pay Star India Rs 18.91 lakh subject to final outcome of dispute

December 23, 2016
Clarify status with Star India, TDSAT asks Canara Star

NEW DELHI: Canara Star Communications Pvt. Ltd Karnataka, which has a long-pending dispute with Star India with regard to payments, has been given one more opportunity by the Telecom Disputes Settlement and Appellate Tribunal to reply to an affidavit of 23 March 2016 by the broadcaster alleging there was no entity of the name of the MSO on the website of the Corporate Affairs Ministry.

Canara Star was given one more week from 20 December 2016 to file its affidavit, and Star India was permitted to respond to the affidavit if it so desired.

Members B B Srivastava and A K Bhargava put up the matter for further hearing on 20 January 2017.

The Tribunal said: “It is seen that the affidavit which has been filed by Canara Star is not prima facie in conformity with the directions given by the Tribunal on 18 December 2015.

Canara Star had originally come before the Tribunal against disconnection notices by Star India as for default in payment. One of the grounds on which the disconnection notice was challenged was that another MSO had started operating in those areas and, as a result, the petitioner’s subscriber base had gone down substantially and the petitioner had been making request for downgradation of its subscriber base and consequently a reduction in the fixed fee payable by it as monthly subscription fee.

As there appeared to be some substance in the petitioner’s grievance, and, on a joint request, the matter was referred to the Mediation Centre. The Tribunal was informed that, before the Mediation Centre could intervene, the parties were able to arrive at some understanding in regard to Kumta and Bhatkal areas but Canara Star was also getting signals from Star India for transmission in the DAS area of Bangalore and there too the MSO happened to be in default in payment of the subscription fees.

Star India wanted a comprehensive settlement that should cover both analogue and digital areas covering Bangalore also.

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

Earlier this year, Canara Star had been asked by the TDSAT to present a payment schedule to Star India to settle their dispute.

However, then chairman Justice Aftab Alam and members — Kuldip Singh and B B Srivastava accepted the plea by Star India counsel Arjun Natarajan that this schedule should not come in the way of its requirement to furnish a guarantee. Earlier, on 4 February, the Bench had granted a week’s time to Canara Star represented by Counsel Tushar Singh, to furnish a guarantee.

In terms of the earlier order of 14 January, the directors of Canara Star were present in person before TDSAT on 29 January.

In the hearing in third week of December, 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 around Rs 3 crore pertaining to the MSO’s operations in DAS area of Bangalore said this was subject to the two parties failing to arrive at a final settlement.

Also read:

Canara Star asked by TDSAT to pay Star India Rs 18.91 lakh subject to final outcome of dispute

December 23, 2016
TRAI tariff order withdrawal: Star India joins ZEEL in appeal

NEW DELHI: Star India Pvt Ltd has been impleaded as a party in two appeals challenging the withdrawal by the Telecom Regulatory Authority of India of two inflation-linked Tariff Amendment Orders issued by it in 2014 and set aside by the Telecom Disputes Settlement and Appellate Tribunal.

Observing that the adjudication in the matter will affect the whole sector especially broadcasters and distributors, Tribunal Member B B Srivastava said in his order of 28 September 2016 gave Star one week to file its affidavit and asked TRAI to reply within ten days of that.

The Tribunal listed for 9 November 2016 the further hearing of the two appeals filed by Zee Entertainment Enterprise Ltd against the withdrawal of the TRAI tariff orders of 9 May this year.

Earlier, Star counsel Gopal Jain said the Secvtion 8A of the Civil Procedure Code was clear that any party or parties that may be affected by a court decision could be impleaded and heard.

However, TRAI counsel Kirtiman Singh said that Section 14A (3) of the TRAI Act provides a period of thirty days for filing an appeal. But he noted that a proviso says that the Tribunal can take note if there is sufficient reason for this.

Observing that there is healthy growth in the industry with rise in revenues outstripping the increasing inflation over the years, TRAI had decided that two inflation-linked Tariff Amendment Orders issued by it in 2014 and set aside by the Tribunal are not required at present.

Earlier, the Supreme Court had on an appeal from the Indian Broadcasting Foundation and another party also upheld the TDSAT order 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.

Holding the Telecommunication (Broadcasting & Cable) Services (Second) Tariff (Eleventh Amendment) Order 2014 of March 2014 and ‘The Telecommunication (Broadcasting & Cable) Services (Second) Tariff (Thirteenth Amendment) Order 2014 of December that year were ‘untenable’, the Tribunal had said it thought 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.”

In its directives withdrawing the orders, TRAI said: “During analysisof relevant data and the impact of various factors on the issue ofinflation linked hikes in tariff ceilings at the wholesale levels”, it had observed that the “annual revenues that actually accrued to the broadcasters had surpassed the estimated revenues that should have accrued to them after taking into account the year-on-year inflation as calculated using the GDP deflator. The compounded annual growth rate of the revenues accruing year-on-year to the broadcasters has also witnessed a positive growth. More importantly, this growth has kept well ahead of the estimate revenues compensated for the year-on-year change in the inflation using the GDP deflator.”

The tariff hike had been challenged by Home Cable Network and the Centre for Transforming India, with Lucknow 9 Cable Network, Good Media News India Pvt Ltd, Sikkim Digital Network and Cable Combine Communication Siliguri as intervenors. Later, Indian Broadcasting Federation (IBF) supported the order as intervener while the other interveners who were Direct to Home (DTH) operators, Multi System Operators (MSOs), Association of Cable Operators/Cable Operators opposed the order on the same grounds as the Appellants.

October 3, 2016
TRAI tariff order withdrawal: Star India joins ZEEL in appeal

NEW DELHI: Star India Pvt Ltd has been impleaded as a party in two appeals challenging the withdrawal by the Telecom Regulatory Authority of India of two inflation-linked Tariff Amendment Orders issued by it in 2014 and set aside by the Telecom Disputes Settlement and Appellate Tribunal.

Observing that the adjudication in the matter will affect the whole sector especially broadcasters and distributors, Tribunal Member B B Srivastava said in his order of 28 September 2016 gave Star one week to file its affidavit and asked TRAI to reply within ten days of that.

The Tribunal listed for 9 November 2016 the further hearing of the two appeals filed by Zee Entertainment Enterprise Ltd against the withdrawal of the TRAI tariff orders of 9 May this year.

Earlier, Star counsel Gopal Jain said the Secvtion 8A of the Civil Procedure Code was clear that any party or parties that may be affected by a court decision could be impleaded and heard.

However, TRAI counsel Kirtiman Singh said that Section 14A (3) of the TRAI Act provides a period of thirty days for filing an appeal. But he noted that a proviso says that the Tribunal can take note if there is sufficient reason for this.

Observing that there is healthy growth in the industry with rise in revenues outstripping the increasing inflation over the years, TRAI had decided that two inflation-linked Tariff Amendment Orders issued by it in 2014 and set aside by the Tribunal are not required at present.

Earlier, the Supreme Court had on an appeal from the Indian Broadcasting Foundation and another party also upheld the TDSAT order 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.

Holding the Telecommunication (Broadcasting & Cable) Services (Second) Tariff (Eleventh Amendment) Order 2014 of March 2014 and ‘The Telecommunication (Broadcasting & Cable) Services (Second) Tariff (Thirteenth Amendment) Order 2014 of December that year were ‘untenable’, the Tribunal had said it thought 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.”

In its directives withdrawing the orders, TRAI said: “During analysisof relevant data and the impact of various factors on the issue ofinflation linked hikes in tariff ceilings at the wholesale levels”, it had observed that the “annual revenues that actually accrued to the broadcasters had surpassed the estimated revenues that should have accrued to them after taking into account the year-on-year inflation as calculated using the GDP deflator. The compounded annual growth rate of the revenues accruing year-on-year to the broadcasters has also witnessed a positive growth. More importantly, this growth has kept well ahead of the estimate revenues compensated for the year-on-year change in the inflation using the GDP deflator.”

The tariff hike had been challenged by Home Cable Network and the Centre for Transforming India, with Lucknow 9 Cable Network, Good Media News India Pvt Ltd, Sikkim Digital Network and Cable Combine Communication Siliguri as intervenors. Later, Indian Broadcasting Federation (IBF) supported the order as intervener while the other interveners who were Direct to Home (DTH) operators, Multi System Operators (MSOs), Association of Cable Operators/Cable Operators opposed the order on the same grounds as the Appellants.

October 3, 2016
TDSAT rules in favour of broadcaster against MSO

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal has reiterated that failure to collect fees from subscribers is not sufficient ground for any multi-system operator or distributor for non-payment of earlier dues or monthly subscription to a broadcaster.

Member B B Srivastava agreed with an earlier TDSAT order on 6 October 2014 quoted by Taj TV counsel Upender Thakur which is the respondent in the petition filed by Manthan Broadband Service Pvt Ltd.

The Tribunal in Petition No. 144(C) of 2014 (Sun Distribution Services Pvt. Ltd. vs Digicable Network (lndia) Pvt Ltd.) had observed:

“To my mind, the failure to collect from the ground is not a sufficient justification for not making payment to the broadcaster its earlier dues and the current monthly license fees in time.”

After hearing counsel for both sides, TDSAT extended by 10 days the time given to Manthan to clear its dues to Taj TV ‘by way of one time indulgence.’

Also read: VXL and linked LCOs barred from receiving signals from any other MSO

Also read: TDSAT forbids VXL Digital to receive signals from any MSO after dispute with Indiacast

September 26, 2016
TDSAT rules in favour of broadcaster against MSO

NEW DELHI: The Telecom Disputes Settlement and Appellate Tribunal has reiterated that failure to collect fees from subscribers is not sufficient ground for any multi-system operator or distributor for non-payment of earlier dues or monthly subscription to a broadcaster.

Member B B Srivastava agreed with an earlier TDSAT order on 6 October 2014 quoted by Taj TV counsel Upender Thakur which is the respondent in the petition filed by Manthan Broadband Service Pvt Ltd.

The Tribunal in Petition No. 144(C) of 2014 (Sun Distribution Services Pvt. Ltd. vs Digicable Network (lndia) Pvt Ltd.) had observed:

“To my mind, the failure to collect from the ground is not a sufficient justification for not making payment to the broadcaster its earlier dues and the current monthly license fees in time.”

After hearing counsel for both sides, TDSAT extended by 10 days the time given to Manthan to clear its dues to Taj TV ‘by way of one time indulgence.’

Also read: VXL and linked LCOs barred from receiving signals from any other MSO

Also read: TDSAT forbids VXL Digital to receive signals from any MSO after dispute with Indiacast

September 26, 2016
VXL and linked LCOs barred from receiving signals from any other MSO

NEW DELHI: VXL Digital has been restrained by the Telecom Disputes Settlement and Appellate Tribunal from receiving signals from Indian Cable Net Company Ltd or any other MSO.

In a petition filed by VXL against Star India, TDSAT member B B Srivastava also restrained ICNCL and other MSOs from supplying signals to the petitioner and shareholder LCOs.

TDSAT said the alleged arrangement of migration to another MSO by continuation of the use for facility of CAS and SMS on the previous MSO “appears prima-facie unusual and not in consonance with interconnect regulations”.

However, TDSAT, in its order of 14 September 2016, said VXL will be at liberty to move an application for vacation and I or modification of the restraint order.

Star India counsel Saurabh Srivastava submitted that, through an affidavit, it had been clearly admitted by VXL that nine local cable operators who are shareholders in VXL are receiving signals from ICNCL, and VXL had agreed to extend the facility of CAS and SMS for ensuring uninterrupted services to the consumers.

It was also mentioned that their shareholder LCOs would be transferring shares of VXL to ICNCL to overcome any roadblock. This arrangement had been agreed to by the petitioner company in the letter of 28 July 2016.

Also read: TDSAT forbids VXL Digital to receive signals from any MSO after dispute with Indiacast

September 26, 2016