NEW DELHI: The Telecom Disputes Settlement and Arbitration Tribunal (TDSAT) has said that a broadcaster cannot insist that the service provider must prescribe a minimum subscription period of three months.
In a judgment that may have far-reaching consequences, TDSAT however interpreted the Tariff Order of the Telecom Regulatory Authority of India (TRAI) to mean that the service provider may prescribe a maximum of three months as the minimum period of subscription to its subscribers subscribing to a-la-carte channels.
Allowing the petition by Dish TV against ESPN Software India, chairman justice Aftab Alab and member Kuldeep Singh said clause 5.2 of the Reference Interconnect Offer (RIO) offered by ESPN to Dish TV as well as clause 4.6 is not in conformity with the regulations. The bench also directed that a copy of the judgment be supplied to TRAI.
Accordingly, the bench in the judgment written by Singh said clause 5.6 of RIO shall be modified accordingly. Similarly, clause 8.2 of the RIO shall be modified to make the reporting requirement in conformity with the RIO published by respondent on its website.
Referring to charges by ESPN that Dish TV only beamed matches for any month or part thereof when ESPN’s channel is showing cricket matches in which Indian team is participating and the same is activated as part of the ‘India Cricket Package,’ the calculation of subscribers of such a channel shall be based on the total number of subscribers subscribing to all such bouquets that offer “ICP” for the whole month irrespective of the fact when the channel is activated or de-activated.
The number of subscribers of the respondent’s such channel that is shown as part of ICP shall be calculated on a calendar month basis as all the subscribers subscribing to such bouquets which contain the ICP for all such months or part thereof during which the channel is activated.
The Tribunal said the interest of justice will be served if it is directed that for any month or part thereof when ESPN’s channel is showing cricket matches in which Indian team is participating and the same is activated as part of the ICP, the calculation of subscribers of such a channel shall be based on the total number of subscribers subscribing to all such bouquets that offer “ICP” for the whole month irrespective of the fact when the channel is activated or de-activated. The calculation will be on the calendar month basis and if the matches being played on the channel, due to which the channel is activated as part of ICP, spill over to the next calendar month, the subscribers will be counted for both the months.
The Tribunal directed the parties to enter into the agreement based on the modified RIO within a period of two weeks.
In terms of the Tribunal’s order dated 10 April 2012 in Petition No.382(c) of 2011 filed by ESPN, the petitioner was entitled to the restitution of the amount which was paid to the respondent for the months of September 2011 onwards. The parties shall reconcile their accounts by taking the number of subscribers as calculated in accordance the directions of the Tribunal with regard to subscribers. The respondent, if it so desires, may carry out an audit of the petitioner’s SMS and the petitioner shall fully cooperate with the respondent for the same. The audit and reconciliation of accounts shall be completed within four weeks and the past accounts settled within four weeks thereafter.
It said the Tariff Order was clear that the subscribers referred to in clause 6 are the end users and not the distributor of signals and the sub-clause (ii) applies to the distributor of the signals who can specify the minimum subscription period not exceeding three months to their subscribers for a-la-carte channels. Thus, the Tribunal said that this clause did not give ESPN the right to prescribe the minimum period of three months in their RIO.
According to the ESPN, Dish TV had formulated one ‘India Cricket Pack’ which is a hybrid pack. This pack has been provided in such a way that subscribers opting for that pack get sports channels for the period of special sports events and where India is playing on one side. It will be available for the period of 5 to 10 days and whenever the match is complete, the channel will get disconnected. According to the respondent such practice is causing huge loss to it as the subscribers getting such facility will not be recorded and reported to the respondent.
