The petitioner before us being aggrieved by and dissatisfied with the disconnection of its signals by the respondents herein has filed this application claiming inter alia for the following reliefs:
“a. Direct the respondent No. 1 and Respondent No. 2, their authorized representatives, agents and successors in interest to carry and retransmit the Petitioner's News channel “Tv5” through their network by placing the channel in Prime “S” Band, as per the agreement/understanding arrived with the petitioner on 18-4-08, uninterruptedly and to consequentially direct the respondent to retransmit the News channel of the petitioner without raising a demand for additional carriage fee in future.
B Pass an order declaring the act of the respondent No. 1 and Respondent No. 2 in disconnecting the retransmission of signals of the news channel of the petitoner as illegal and in violation of the TRAI interconnect Regulations dated 10.12.04 as amended on 4.09.06
c. To pass ad-interim Ex-parte order in terms of the prayer made hereinabove.”
The basic fact of the matter is not in dispute. The petitioner is a broadcaster within the meaning of the provisions of the Register of Interconnect Agreements (Broadcasting and Cable Services) Regulations 2004 (hereinafter called and referred to for the sake of brevity as the said Regulations).
The respondent is an MSO.
Admittedly the respondent carry on their business in and around the town of Eluru, the district headquarter of the West Godavari District in the State of Andhra Pradesh.
It is also not disputed that the petitioner broadcasts a news channel being free-to-air satellite channel; commonly known as “Tv-5” News Channel. An oral agreement was arrived at by and between the parties hereto in terms whereof the respondent agreed retransmission of the signals of the petitioner in respect of the aforementioned channel.
The dispute between the parties is that whereas according to the petitioner the consideration for carrying out such carriage by the respondent was for life time wherefor the amount of consideration was fixed at Rs. 75000; according to the respondent such carriage charges were in fact Rs. 2.00 lakhs p.a
The respondent contends that the petitioner is using not only its platform on and from 7.9.2009 whereupon a notice was issued by it through its lawyer, the respondents also through their advocate sent a reply thereto on or about 29.9.2009 denying and disputing all the allegations contained in the said notice dated 7.9.2009
Mr. Yoginder Handoo, the learned counsel appearing for the petitioner has drawn our attentions to the contentions raised in the aforementioned notice dated 7.9.2009, which are denied and disputed by the respondent and submitted that having regard to the proof of payment of Rs. 75000/- filed before this Tribunal, the respondent must be held to have admitted not only the agreement but also receipt of the said sum and as such raising of a new contention to the effect that the amount of consideration fixed in terms of the agreement was not Rs. 75000/- for life time but a sum of Rs. 2.00 lakhs p.a is not correct. It was urged that apart from the factual controversy, as it stands accepted that the respondents did not serve any notice upon the petitoner as envisaged under clause 4.2 of the Notification dated 4.9.2006, commonly known as the Telecommunication (Broadcasting and Cable Services) (3rd Amendment Regulations 2006 and/or a public notice as envisaged under clause 4.3 thereof, the action taken on the part of the respondent must be held to be illegal.
Ms. Manjeet Kirpal, the learned counsel appearing on behlaf of the respondent, on the other hand, would urge:
(i) The purported agreement between the parties being an oral one, it was for the petitoner to prove the terms thereof;
(ii) The respondents were entitled to disconnect the purported agreement for carriage as the petitioner has failed an/or neglected to pay the stipulated annual carriage charges in respect thereof.
(iii) The notice contemplated in terms of the 2006 Regulations was not answered having regard to the controversy appended to clause 4.1 thereof.
From the factual matrix of the matter, as noticed hereinbefore, it stands accepted that the parties have entered into an oral agreement. They, however, differ only with regard to the terms and conditions thereof. The petitoner has brought on records two payment vouchers to show that two cheques bearing No. 838633 dated 18, 4, 2998 and No. 838639 dated 18.4.2008 were issued in the name of Respondent No. 2. Whereas according to Mr. Handoo the said payment vouchers bear the signatures of the authorized representative of the respondent, the respondent disputes the same.
However, the respondent in paragraphs 2 & 5 of their reply admitted receipt of the said amount, which also transpires from the statement of the bank account of the petitoner; a copy whereof has been filed with the petition.
We hereat, for the purpose of disposal of this petition, are not concerned with the disputed questions on fact including the dispute with regard to the actual date from which retransmission of such signal was disrupted.
The terms and conditions of the agreement are governed by the Regulations mentioned hereinbefore. The fact that the petitioner is a broadcaster and the Respondent No. 1 an MSO and thus by the provisions contained therein shall govern the agreement, is not disputed.
Regulation 4 of 2006 Regulations provides for disconnection of TV channel signals; clause 1 whereof provides that no broadcaster or MSO shall disconnect the TV channel signals to a distributor of TV channels without giving three weeks' notice to the distributor and clearly giving reasons for the proposed action. The second proviso appended thereto provides for an exception, stating that no such notice would be required if there is no agreement, written or oral. In this case, the respondent has caused disconnection of TV channel signals of a distributor and thus clause 4.2 of the Regulation will have application. The second proviso appended to the clause 4.1 however would clearly demonstrate that the Regulations, in view of the contract entered into by an between the parties would also require issuance of a notice there in as much as in this case the agreement having been entered into prior to the coming into force, the the old regulation shall apply.
In this case, in our opinion, Regulations 4.2 and 4.3 are attracted. It has not been denied or disputed before us by the learned counsel for the respondents that the statutory requirements contained in clauses 4.2 and 4.3 have not been complied with. The learned counsel however submits that the petitioner was communicated of the decision to disrupt retransmission of signals orally, which according to us does not meet the requirements of law. The contentions raised on behalf of the respondents, therefore, in our opinion, are liable to be rejected.
As action on the part of the respondent in disconnecting or disrupting retransmission of signals of the aforementioned TV-5 channel is illegal, the petitioner is entitled to the reliefs prayed for herein.
We, therefore, allow this petition and direct the respondent to restore retransmission of the said channel within a period of two weeks from from the date of communication of a copy of this order. Keeping in view the conduct of the respondent and/or the fact that it had taken wholly inconsistent and contradictory stands in its reply to the notice issued by the petitioner and the pleadings before this Tribunal, they are also liable to pay and bear the costs of this petition.
Advocate's fee assessed at Rs. 10000/-.
Before parting, however, we would reiterate that we have not entered into the merit of the matter. The parties would be entitled to take recourse to such remedies as are available to them in law.
…………………, J
(S.B Sinha)
Chairperson
…………………
(G.D Gaiha)
Member