JIOSTAR INDIA PVT. LTD. vs HOME CABLE NETWORK PVT LTD on 1 May 2015

ORDER

The Petitioner is a Multi System Operator (MSO) engaged in the business of re-distribution of television channels through a Digital Addressable System (DAS) in the notified areas of Delhi. The Respondent – M/s Media Pro Enterprise (India) Pvt. Ltd. is a company engaged in the business of distribution of television channels. The parties entered into a Memorandum of Understanding on 23.10.2012 as per which the Petitioner was retransmitting the Respondents channels.

2. The Petitioner came to this Tribunal aggrieved by a disconnection notice dated 09.12.2013 issued under clause 6.1 of the DAS Regulations by the Respondent. As per the impugned notice, the Petitioner was illegally and unauthorisedly carrying the channels of the respondent in an unencrypted mode in the DAS notified areas of National Capital Territory of Delhi and in areas outside the NCT of Delhi by taking feed from the DAS notified areas which was in violation/non-compliance of the terms of the MoU dated 23.10.2012 entered between the parties as well as in violation of the applicable Law.

The relevant part of the notice is as under:- *"Kindly note that:-*

1. It has been found that you are illegally re-transmitting the TV channels of Media Pro in unencrypted / analog mode in the DAS notified area of National Capital Territory of Delhi and also in above mentioned areas outside National Capital Territory of Delhi by taking a feed from DAS notified areas. The said act of yours is not only in contravention to the MIB and TRAI directives and guidelines but also constitutes breach of the MOU dated 23.10.2012.

2. Your above stated acts not only violate the applicable laws and MOU but also amount to infringement of the Copyright of the respective content owners of the said Channels. The agreement/MOU dated 23.10.2012 authorizes you to retransmit the signals of Media Pro channels in the DAS notified city of National Capital Territory of Delhi only, whereas you are illegally and in an unauthorized manner retransmitting signals to areas beyond National Capital Territory of Delhi which constitutes breach of the terms of the said MOU dated 23.10.2012.

In the view of above circumstances, we request you to immediately:-

1. Encrypt all Media Pro channels and transmit the same in addressable mode to your subscribers in terms of the Cable Television Networks (Regulation) Act, 1995 as amended from time to time and DAS Regulations issued by TRAI, and in terms of the MOU.

2. Forthwith stop the illegal and unauthorized re-transmission of supply of signals of Media Pro channels in areas outside the DAS notified city of National Capital Territory of Delhi and retransmit signals only in the DAS notified area of National Capital Territory of Delhi in encrypted mode in terms of the MOU dated 23.10.2012 only and the laid down applicable laws, *Failing which we shall be left with no option but to initiate appropriate legal action as per applicable statute."*

3. Vide order of the Tribunal dated 20.12.2013, it was directed that in case the Petitioner files an undertaking before the Tribunal that it will confine its operation strictly within the DAS notified areas of NCT of Delhi and shall do the transmission/re-transmission in digital encrypted mode, the Respondent shall not discontinue the supply of its channels to the Petitioner's network in pursuance of the impugned Notice. It was made clear in the order that any violation of the undertaking shall make the petition liable to dismissal. The relevant part of the order is as under:- *"In the meanwhile, in case the petitioner files an undertaking by tomorrow before the Tribunal that he will confine his operation strictly within the DAS notified areas of National Capital Territory of Delhi, as defined in the Notification of the Ministry of Information & Broadcasting dated 11.11.2011 and shall do the transmission/re-*

*transmission in digital encrypted mode, the respondent shall not discontinue the supply of its channels to the petitioner's network in pursuance of the impugned notices. It is made clear that any violation of the undertaking, shall make the petition liable to dismissal without anything further and shall also make the respondent entitled to discontinue the supply of the signals in accordance with law."*

4. In view of the above, the limited issue that remained surviving was in regard to the execution of a fresh agreement between the parties.

5. Pursuant to the TRAI Regulations dated 10.02.2014, M/s Media Pro Enterprises (India) Pvt. Ltd., the Respondent was no longer distributing signals of ZEE and STAR bouquet of channels. Accordingly, M/s STAR India Pvt. Ltd. and M/s Taj Television India Pvt. Ltd. were impleaded as necessary parties, vide Tribunal's order dated 04.08.2014.

6. Even while the petition is pending adjudication on the issue of execution of fresh agreement between the parties, the present Miscellaneous Application (M.A. No. 52 of 2015) is filed by Respondent- M/s STAR India Pvt. Ltd. seeking dismissal of the petition and issuance of appropriate directions including, imposition of penalty under Section 20 of the TRAI Act, 1997 as well as initiation of contempt proceedings. It is alleged in the application that the Petitioner is in breach of its undertaking by way of affidavit dated 26.12.2013 tendered by Petitioner's Director, Mr. Vikki Choudhry in pursuance of the Tribunal's order dated 20.12.2013. The said breach is allegedly on account of resorting to illegal and unauthorized transmission of the Applicant's signals beyond the DAS notified areas of NCT of Delhi.

7. It is alleged in the application that for the past one year or so, the Petitioner has illegally been providing the Respondent/Applicant's content in brazen breach of the aforesaid undertaking. In this regard, the Applicant addressed letters dated 03.02.2015 to the District Collector, Gurgaon and SSP, Gurgaon for the purpose of registration of FIRs. It was submitted on behalf of the Respondent/Applicant that the Petitioner is providing the Applicants content, namely, Star Plus at Channel No. 4; Star Gold at Channel No. 104; Star Sports 4 at Channel No. 203 and Star Sports 3 at Channel No. 204 in Sector 5, Gurgaon through Sun Direct DTH boxes. The water marks clearly and conspicuously show Petitioner's logo as well as that of Sun Direct on the screen.

8. It was further submitted that the unlawful provisioning of the Applicants signals had been recorded using a mobile phone by a person and a Compact Disc containing the recording was filed along with the application as Annexure 'F'. Further, it was alleged that the Petitioner was in default of payment for the subscription of the general entertainment channels of the Applicant as well as non-execution of a fresh agreement.

9. The Petitioner in its reply to the application denied that it was indulging in any piracy by providing signals beyond the DAS notified areas of NCT of Delhi. The relevant averments made by the Petitioner in this regard are as under:- *"5. The following paragraphs would show as to how the allegations of piracy made by the Respondent are false and incorrect:*

*a. That Petitioner contacted the ABV (CAS Vendor) and enquired about covert finger printing, that's embedded in the frame of the picture recorded on the CD provided by the Respondent.*

*b. The CAS Vendor tested the CD in their lab and provided the Petitioner with the VC Card details and the same were traced to be linked to a STB active with a LCO namely Aftab Cable Network operating in Okhla Vihar, Delhi.*

*c. The Operator had issued the said STB and VC Card to a customer residing in Okhla Vihar, Delhi. The operator/LCO further informed the Petitioner that some people from DEN Network visited his office and took the above said STB for some testing / checking purpose and have also connected some equipment/ gadget to the Petitioner provided feed/signal at his premises*

d. The Petitioner contacted the STB manufacturers and experts in digital cable technology to understand, as to how it is technically possible to stage manage Petitioners signals at any other place.

e. The STB manufacturer explained the possibility through a diagram.

i. The signals starts from the headend of the Petitioner and travels to the CPE (STBs) which are installed at the customer end.

ii. This signals could be intercepted during this transition from point A to Point B (RF OUT) and can be recorded with the help of recording equipment called RF Stream Capturing Device.

iii. Thereafter this recording is then transferred to a computer and it is saved in the hard disk of the computer.

iv. The recording is now transferred through IP out to a device called IP QAM Modulator (IPQ 6850). This device is ready to transfer the RF signals to an activated STB at any other location. (anywhere in world ) for the play out of the recorded streams."

It was stated on behalf of the Petitioner that the Petitioners system or equipment might have been abused for re-transmitting Star Channels to Gurgaon but in any case, it was without the knowledge of the Petitioner much less its consent.

10. Vide order dated 02.03.2015, the Tribunal directed the BECIL to examine the CD submitted by the Applicant and submit its report after giving an opportunity of hearing to both sides. BECIL was also directed to permit the petitioner to show the CD prepared by it in support of its defense, if it so wishes. The relevant part of the Tribunal's order is as under:- *"The BECIL is directed to examine the CD submitted by the applicant/broadcaster and submit its report after giving an opportunity of hearing to both sides. In course of hearing, in case the petitioner wishes to show some CD prepared by it in support of its defence, BECIL will permit it to do so.*

At this stage, Mr.Thakur states that the channels of Taj Television are also being subjected to piracy by the petitioner. If so, Taj Television may also submit its CD to BECIL by 4.3.2015.

Having considered the allegations made by the applicant/respondent and defence taken by the petitioner, BECIL will submit a report as to whether or not the petitioner's system was willingly being used for taking the broadcaster's signals beyond the DAS areas of NCT of Delhi and in case the petitioner's system was being used for taking the broadcaster's signals outside the DAS areas of Delhi, to what extent the petitioner may be held responsible for it and further, how far the petitioner's system complies with the security provisions mandated by the regulations.

*BECIL is directed to submit its report after hearing all the three sides within ten days from the date of receipt of a copy of this order along with the CD submitted by the broadcasters.*

*Put up under the same heading on 16.3.2015.*

*A copy of the order may be given to both sides to be communicated to BECIL along with the CD without any delay."*

11. The report of the BECIL has now been filed. Four CDs have been examined by the BECIL and a summary sheet of the recordings contained in the CDs is annexed as Annexure '9A' with the report. Additionally the BECIL team also examined the CDs provided by the Tribunal. An audit of the headend of the Petitioner was also carried out. The parties involved in the dispute were called for individual hearing by BECIL on March 16, 2015 and a record of the discussions is annexed as Annexure '4A', '4B' and '4C' with the report. A joint hearing with all the parties was also conducted on March 19, 2015 and the record of discussions is placed at Annexure 5.

The BECIL report, inter-alia, observes as under:-

(i) The CD received by BECIL with the order of the Tribunal contains the recording of Home Cable's (Petitioner) signal on a TV as recorded /captured using a mobile phone camera. The recording also shows sports channels (Star Sports 3 and 4) of Respondent No. 2 with the logos of the petitioner and SUN DTH. The petitioner does not have any commercial agreement with Respondent No. 2 for its sports channels for Delhi and Gurgaon.

(ii) The time of the recording matches the time of the live telecast of the programs featuring in the CD.

(iii) This would *prima facie* be indicative of the recording being made of a live transmission and not a pre-recorded transmission. However, this circumstance cannot be considered to be conclusive since technically it is possible to change/tamper with the identification label number on the mobile phone and /or while transferring the content to a CD. Whether in this case such tampering/change has taken place or not can only be determined after a forensic examination of the mobile phone and the device on which the CD was created. Therefore a conclusive finding cannot be recorded in the absence of examination by a forensic lab/agency.

(iv) CD at Annexure 6 contains the recording of Home Cable's signal on a TV as recorded/captured using a mobile phone camera. The recording shows channels of Respondent No. 1(Zee TV, Zee Anmol, Zee Smile, Zee Cinema & Pictures, Zee Premiere, Zee Action, Zee Studio, Ten Sports, Zee News, Zee Business, Zing and Zee Bangla) with the logo of the petitioner.

(v) CD at Annexure '7A' contains the recording of Home Cable's signal on a TV as recorded/captured using a mobile phone camera and recording function. The recordings shows sports channel of Respondent No. 2 ( Star Sports 1) with the logos of Home Cable and SUN DTH.

(vi) CD at Annexure '7B' contains the recording of Home Cable's signal on a TV as recorded/captured using a mobile phone camera. The recording also shows sports channels of Respondent No. 2 (Star Sports 1 and Star Sports 3) with the logos of Home Cable and SUN DTH.

(vii) CD at Annexure '7C' contains the recording of Home Cable's signal on a TV as recorded/captured using a mobile phone camera. The recording shows sports channels of Respondent No.2 (Star Sports 3 and Star Sports 4) with the logos of Home Cable and SUN DTH.

12. As per the report of the BECIL, the recordings contained in all these CDs do establish that the feed/signal is of Home Cable. The STB and logo seen are also of Home Cable. During the course of the hearing before BECIL, Home Cable had admitted the ownership of the signal and the STB but denied knowledge or involvement in the piracy. Home Cable stated that the piracy could have been done by recording its RF stream in Delhi and then playing it later in Gurgaon by someone using its activated STB. Home Cable also gave diagram presentation as to how the same could be done. Further to check the possibility of the same and to confirm the technical feasibility, BECIL had requested Home Cable for a demonstration using the same setup. The requisite demonstration was arranged by petitioner (Home Cable) and it was observed that it is technically feasible to record the RF signal in the distribution network and then to be played back later using the activated STB of the same network.

13. As per the BECIL:

"Though such recordings and retransmission are technically feasible as stated by the petitioner, it does not seem very probable for the following reasons:-

- (i) It would require elaborate technical/logistical arrangements to be made and technicalities to be taken care of and stage managed to make the transmission look like authentic distribution of a cable TV signal at a different location as explained below:

- (a) Tapping/picking up the RF signal stream from the Home Cable TV signal distribution chain/network.

- (b) Feeding the signal to a RF stream capturing device.

- (c) Recording the output of this device on a stream recorder.

- (d) Taking this recording/playback device to a different location where a person wants to stage manage the recording.

- (e) Playback the recording and connect the output to an edge QAM (EQAM).

- (f) Arranging an activated STB of the Home Cable network and connecting the above signal to the input of STB to be further displayed on the viewing device (TV)."

14. The summary of findings of BECIL is as under:-

- a) *The petitioner's system does not comply with the security provisions mandated by the Regulations.*

- b) *There are serious deficiencies in the system of the petitioner, as specified in paragraph 17, that have implications in terms of piracy detection and the same compromise the security features of the petitioner's system.*

- c) *There is high probability of the petitioner's system being used for taking the broadcaster's signals outside the DAS area of Delhi for the reasons specified in paragraph 14.*

- d) *In so far as the CDs are concerned, the time of the recording as evident from the CDs matches the time of the live telecast of the programmes featuring in the CDs. This is evident from the electronic programme guide and the timings appearing in the telecasts. This would prima facie be indicative of the*

recordings being made of live transmissions and not a pre-recorded transmissions.

e) However, this circumstance cannot be considered to be conclusive since technically it is possible to change/tamper with the identification label number on the mobile phone and/or while transferring the content to a CD. Whether in this case such tampering/change has taken place or not can only be determined after the forensic examination of the mobile phone and the device on which the CD was created. Therefore a conclusive finding cannot be recorded in the absence of examination by a forensic lab/agency.

f) It appears that the petitioner's system was being used for taking the Broadcaster's signals beyond the DAS areas of NCT of Delhi. Whether the same was with the consent of the petitioner is a matter that can only be determined after a forensic examination of the mobile phone and the system that has been sued to create the CD. Since Home Cable does not have any agreement for distribution of sports channels of Respondent No. 2 either in Delhi or in Gurgaon, the availability of these records in the SMS and CAS of Home Cable indicates the piracy of sports channels of Respondent No. 2 on the Home Cable Network which, though not conclusive, is indicative of the petitioner's consent.

g) The fact that the STB/VC of the petitioner, involved in the piracy was active till the last date of the audit is also indicative of the petitioner's system being willingly used for taking the broadcaster's signals beyond the DAS area of NCT of Delhi.

h) None of the above circumstances is conclusive by itself but considered in conjunction with each other are indicative of the knowledge and consent of the petitioner.

*(Emphasis supplied)*

15. From the BECIL report, it is conclusively established that the Petitioner system does not comply with the security provisions mandated by the Regulations. There are serious deficiencies that have implications in terms of piracy detection and these deficiencies seriously compromise the security features. Clearly the Petitioner system does not comply with the DAS Regulations, 2012 specifically Schedule 1 of these Regulations. As regards piracy, as per BECIL, though none of the above circumstances is conclusive by itself but considered in conjunction with each other, are indicative of the knowledge and consent of the petitioner.

16. Mr. Varun Mathur, learned counsel appearing for the Petitioner argued that as per their vendors, the system deployed at the Petitioner is also being used by some other operators. He argued that this could be a case of error on the part of BECIL. We are not convinced. BECIL is a statutory authority specified in the DAS Regulations. The second proviso to clause 3 sub-clause 4 of these regulations provides that the findings of the agency (BECIL) referred to in the first proviso shall be final.

Further, we may note that the CAS and SMS (equipment deployed by the Petitioner) are software controlled and such software may be modified/tampered with. The system of the same vendor working satisfactorily with one operator would not necessarily mean that it will be automatically compliant with the Regulations in case of the Petitioner.

17. With regard to the BECIL Report, Mr. Mathur argued that even as per the report the circumstances cannot be considered to be conclusive since with technology it is possible to change/tamper with identification Label Number on the Mobile Phone and/or while transferring of content to the CD. Whether such tampering/change has taken place or not can only be determined after a forensic examination of the mobile phone and device on which the CD was created. No doubt, the BECIL has made the above observations but it has also observed that there is a high probability of the Petitioner system being used for taking the broadcasters signals outside the DAS areas of Delhi. As per BECIL, though the Petitioner denies all allegations of any involvement in piracy but it has allowed the scope of insertion of Sports channels of Respondent No. 2 by not blocking the unused frequencies in its signal stream or taking adequate precautions against the same.

As per BECIL, the Petitioner is responsible for ensuring the security of its system and to see that it is not prone to piracy.

18. It is further seen from the BECIL report that the Set Top Box /viewing card involved in the piracy was still showing active in SMS and CAS of the Petitioner. The observation of BECIL in this regard is as under:- "The history of the STB/VC involved in piracy generated from SMS and CAS also showed the activity done from the Home Cable control room till February 19, 2015. It is to be noted that as per video content of the CD, recordings has been shown to done on February 3, 2015. However, Home Cable had denied any activity upon the same as per reply in TDSAT. Home Cable further stated in the affidavit submitted in Hon'ble TDSAT that this STB has some adapter issue and the same has been taken away by DEN. The availability of the disputed VC activity records from the SMS and CAS of Home Cable contradicts this statement and thus substantiates the piracy being done with its consent. The SMS and CAS reports for the same are annexed at Annexure 10T (i) to 10T (iv). In terms of Schedule II of the Regulations the MSO is under an obligation to switch off a STB that has been used for piracy. In this case, the STB was active till the last date of audit. Thus the system of the petitioner is not complaint with the security provisions mandated by the Regulations."

*(Emphasis Supplied)*

19. The case of the Petitioner that its system was abused by someone to insert the channels of the Applicant/Respondent without its consent leaves a number of questions unanswered as under:-

- (i) Why did the Petitioner not block the un-used frequencies and allowed the same to be misused?

- (ii) Why the STB / viewing card belonging to the Petitioner is used for transmitting the pirated signals. Though the Petitioner stated that STB in question was taken by M/s Den due to some adapter issue, the history of this STB/ Viewing Card generated from SMS and CAS of the Petitioner showed the activity done from its control room till as late as February 19, 2015.

We may note that the CD recording was done on February 3, 2015. The availability of disputed Viewing Card activity records from SMS and CAS of Home Cable contradicts the statement and thus substantiates that the piracy was being done with its consent. We are unable to understand if this STB was taken away by M/s DEN, why the same was not blocked and still showed activity in the Petitioner's system.

When we questioned Mr. Mathur about who would stand to gain by inserting the signals of Applicant/Respondent unauthorisedly into the Petitioner feed and show them on STB/VC of the Petitioner, no satisfactory answer was given.

21. We may recall that in this case there was an allegation of piracy and it was one of the main grounds for the disconnection notice issued under Clause 6.1 of the Regulations. When the Petitioner gave an undertaking on Affidavit before this Tribunal, it was all the more necessary on its part to ensure that its equipment is not used in any way for carrying the signals of the Respondent unauthorizedly but we find the conduct of the Petitioner is completely otherwise. Not only its system is non-compliant with the security requirements, it has not taken the basic precautions of blocking the un-used frequencies and the STB that was being misused.

From the report of the BECIL it is conclusively established that the system of the Petitioner is not compliant with the statutory requirements and no further evidence for this is required. This in itself is good and sufficient ground in law to shut down its network. So far as the observations of BECIL for a forensic examination of the mobile phone and device on which the CD was created are concerned, these observations may be valid for the strict proof required in case of a scientific experiment. However, from

• nolicistic reading of the BECIL report, any reasonable person would arrive at the conclusion that not only piracy was being carried out using the system and equipment of the Petitioner but also that the same was being done with its full knowledge and consent.

22. In the aforesaid facts and circumstances, we recall our order dated December 20, 2013 and make it clear that it will be open to the Respondents to disconnect the signals of the Petitioner in accordance with law. We also feel that it is a fit case for proceeding against the Petitioner under section 20 of the TRAI Act and imposing penalty for violation of the undertaking given before the Tribunal as well as willful failure to comply with our above referred order. This being a case of continuing contravention of our order, we deem it fit to impose a penalty of Rs. 25 Lakhs on the petitioner to be deposited in the registry and payable in account of the Tribunal within 4 weeks from the date of this order.

The M.A. 52 of 2015 stands disposed of.


..... (Aftab Alam) Chairperson

..... (Kuldip Singh) Member