SONY PICTURES NETWORKS INDIA PVT LTD vs TATA SKY LTD on 11 October 2018

ORDER

**By S.K. Singh, Chairperson** – Petitioner is a broadcaster whereas the Respondent is in the business of providing Direct-to-Home (DTH) platform. As licenced service providers, both the parties had executed an Interconnect Agreement between themselves which spent its force by efflux of time on 31.07.2018. When the talks for a negotiated agreement did not yield any fruits, through notice dated 07.09.2018 the petitioner served a disconnection notice under which the petitioner could disconnect the signals of its channels to respondent's platform after 21 days. This notice was followed by public notice dated 10.09.2018. After exchange of emails and letters, the respondent opted for a RIO based agreement with effect from midnight of 30.09.2018. It limited its acceptance of the offer as per RIO to 10 channels only out of a total of 32 channels of the petitioner which it was availing under the Agreement.

2. Mr.Dushyant Dave, learned senior counsel appearing on behalf of the petitioner raised the grievance that respondent has not been fair to those customers and subscribers who were earlier viewing the channels of the petitioner because it required the viewers to give a missed call on a given number in case they wanted to view the relevant channel even out of the 10 channels selected by the respondent. Another grievance is that under the RIO offer the respondent was not entitled to select only 10 channels on *a la carte basis* and leave other channels. Submission is that this would amount to adversely affecting the right of the viewers of petitioner's channels available to them under Article 19(1) of the Constitution of India and would also run counter to the Preamble and Objects of the TRAI Act, 1997. In other words, the petitioner has claimed relief as well as interim relief on the basis of public interest highlighted through written submissions and judgements rendered in the context of Article 19(1) of the Constitution and also on the basis of obligations of licenses under the terms of licence and also under the Telecommunication (Broadcasting and Cable) Interconnection Regulation 2004 and Reference Interconnect Offers(RIO).

3. On the other hand, Mr.Kapil Sibal, learned senior counsel on behalf of the respondent has submitted that petitioner as a licensee has approached this Tribunal only for business interest and is not competent to advocate and represent public interest or the interest of the subscribers/consumers. He submitted that if the petitioner was guided by consumer interest it would not have given a notice of disconnection when petitioner was ready to continue on the old terms under which petitioner was getting Rs.800 crores(may be approximate). On instructions, it was submitted that negotiations failed because the demand was for Rs.1700 crores and that too when the right of telecasting IPL Matches was no longer available with the petitioner as it has been won recently by another broadcaster.

4. He submitted that the judgement relied upon by learned senior counsel for the petitioner in the case of **Secretary, Ministry of Information & Broadcasting, Government of India Vs. Cricket Association of Bengal; (1995) 2 SCC 161** was rendered in an entirely different context and the finding that the airwaves/frequencies are a public property; are limited and have to be used in the best interest of the society, cannot help the petitioner because both the parties are licensees and are bound by terms of the licence and the Regulations which do not create obligation on a DTH licensee to accept the offer made by a broadcaster under RIO in respect of all its channels. The other judgement relied upon in the case of **Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139** was also sought to be distinguished on similar lines. Further, Mr.Sibal placed reliance upon Clause 5.2 of petitioner's RIO and Schedule A, the Validation Form under the RIO to point out that the offer itself contains clear stipulation requiring selection of channels by the respondent and therefore, the respondent was well within its rights, unfettered by any terms of the licence, law or the Regulations to exercise its option and select only 10 channels of the petitioner for redistribution on *a la carte* basis as per terms of the RIO.

5. It was further submitted on behalf of the respondent that option has been provided to the existing customers to opt for channels for viewing by giving a missed call is meant to give facility to the customers who have already been informed through public notice that the earlier agreement with the petitioner had ended and now only 10 of its channels were being made available on *a la care* basis. He submitted that the interest of the existing subscribers is being taken full care keeping in view the requirements of various Regulations including those relating to quality of service.

6. On a careful perusal of the relevant materials noted above, we are of the view that now when the parties are being governed by terms of petitioner's RIO for which respondent has sent its acceptance and such agreement is effective from 01.10.2018 after notice to the viewers and subscribers, it would not be in the interest of justice or equity to grant any interim relief so as to reintroduce the old agreement even for a period of four weeks as per the interim prayer (B). The traditional principles of the *prima facie* case, balance of convenience and irreparable injury also do not help petitioner for such an interim injunction. Some other interim reliefs were also suggested by Mr.Dave during the course of submissions; those would require the respondent to opt for all the channels of the petitioner under the terms of RIO. These are also not found worthy of acceptance at this stage by way of interim relief.

7. The other interim prayer (A) is to direct the parties to enter into negotiations for a period of at least four weeks. This prayer is with a view to enable the parties to enter into fresh negotiations so as to arrive at a mutually acceptable agreement based on negotiations. Generally this Tribunal has been giving such opportunity to the parties even when they have been availing signals on RIO terms. Hence, in terms of interim prayers (A) and (C), we direct both the parties to sit across the table and try to work out a mutually acceptable negotiated agreement within a period of four weeks from today. If required, the parties may seek extension of this period. However, on careful consideration of the entire facts and circumstances, the interim prayer (B) is declined.

8. In view of the above discussion, let this matter be listed under the same heading on 19.11.2018 for considering the outcome of the fresh round of negotiations which the parties are to carry out in the meantime. If required, the direction for reply etc. may be issued on the next date.

..... (S.K. Singh, J) Chairperson

..... (A.K. Bhargava) Member