Justice MM Sundresh upholds TRAI Tariff Order and Interconnection Regulations

Justice MM Sundresh of the Madras High Court has upheld the validity of the Tariff Order and Interconnection Regulations introduced by Telecom Regulatory Authority of India (TRAI) last year, concurring with the view taken by Chief Justice Indira Banerjee earlier in the case.

In effect, the judge has ruled in favour of TRAI’s power to introduce the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 and the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017.

These provisions prevent broadcasters from offering a mix of pay channels and free to air channels in a bouquet of channels. Another restriction so introduced is that high definition and standard definition formats of the same channel should not be in the same bouquet.

However, certain caps imposed by these provisions on the the maximum discount that can be offered for bouquets of channels by broadcasters has been struck down by the High Court.

Background

The aforementioned TRAI provisions faced challenge from broadcasters Star India, Vijay TV and intervenor, the Indian Broadcasting Foundation.

The broad thrust of the challenge made by the petitioners was that the imposition of the provisions was beyond the jurisdiction of Telecom Regulatory Authority of India (TRAI). It was their case that the TRAI thereby encroached upon Copyright and Broadcasting Reproduction Rights (BRR) of the petitioner-broadcasters.

The dispute witnessed a split verdict last March between Chief Justice Indira Banerjee and Justice M Sundar.

Justice Sundar had ruled that the challenged TRAI provisions touched upon content/copyright regulation and were hence beyond the jurisdiction of TRAI. To the contrary, Chief Justice Banerjee found that the provisions were within the realm of TRAI jurisdiction, particularly given its duty to safeguard the public interest.

In view of the conflicting views, the matter was eventually referred to Justice Sundresh, who has now expressed his concurrence with the findings of the Chief Justice on all points of conflict.

The decision follows arguments made by a host of senior advocates. TRAI’s arguments were primarily made by lead counsel, P Wilson. G Masilamani argued for Videocon d2H, whereas ARL Sundaresan appeared for the All India Digital Cable Federation. Both intervenors supported TRAI in the case. Additional Solicitor General G Rajagopalan represented various Union ministries. P Chidambaram appeared for Star India, while Abhishek Manu Singhvi and PS Raman represented Vijay TV.

Justice Sundresh’s findings

The primary ground to affirm the position that TRAI has the jurisdiction to introduce the challenged provisions is that they were introduced in furtherance of the TRAI’s function to safeguard the public interest.

Further, Justice Sundresh did not find merit in the argument that the provisions would touch upon content regulation or copyright. In fact, the judge specifically notes that such a regulation would not be introduced under the Copyright Act.

Pertinent observations made by Justice Sundresh to this effect include the following.

On whether the order/regulations touch upon content regulation,

“A content has to be seen in the programme and not the channel. Merely identifying or categorising a channel either in a group or stand alone would not amount to interference in content. 

What is involved here is the reach of a particular channel in a specific way or mode, giving several options to choose qua a subscriber. A content in a programme is different from that of the channel. There is absolutely nothing to hold that the content in a broadcast or a programme is interfered with. 

Similarly, the content of a channel is absolutely preserved and taken as such. For example, a movie to be telecasted is not interfered with and so also the nature.  It is nothing but an attempt to stop an unilateral thrust of unwarranted dust along with grain.  Suffice it is to state that there is sufficient and ample power for the creation of the impugned Regulations and the Tariff Order under the TRAI Act.”

On the scope of TRAI’s jurisdiction,

“The scope of the provisions of the TRAI Act relatable to the object has been dealt with extensively by the Courts already. This cannot be restricted to the so called carriage, which has got no factual or legal backing. 

It has also to be noted that the impugned regulations and the tariff order can never be introduced under the Copyright Act. There is no element of public interest therein. 

When once it is conceded that it is the duty of the TRAI to take care of the public interest, the presence of the public and the absence of any complaint become immaterial and irrelevant.”

However, the earlier finding that TRAI’s move to introduce a 15% cap on discount of the price of bouquet channels is arbitrary and liable to be struck down remains. Since there was no conflict of opinion on this aspect between the judges of the Division Bench, Justice Sundresh has not interfered with the finding.

It can also be noted that the status quo will be maintained for another two weeks, in order to allow the petitioners to approach the Supreme Court. – Bar and Bench