Decided on March 09,2015

Indian Broadcasting Foundation And Ors. Appellant


Aftab Alam, J. (Chairperson) - (1.) AN Association of television broadcasters (appellant No. 1) and two individual broadcasters (appellants 2 and 3) have filed this appeal under section 14A(2) of the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) challenging (i) the Telecommunication (Broadcasting and Cable) Services (Second) Tariff (Twelfth Amendment) Order 2014 dated 16 July 2014 and (ii) the Telecommunications (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff (Fourth Amendment) Order 2014 dated 18 July 2014 by which similar amendments were made in the Telecommunication (Broadcasting and Cable) Services(Second) Tariff Order 2004 (6 of 2004) dated 1 October 2004 (relating to non -addressable or analogue systems) and the Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order 2010 (1 of 2010) dated 21 July 2010 (relating to addressable systems) respectively. The impugned amendments introduce mainly three changes; first, the broadcaster is no longer allowed to provide its channels directly to a subscriber, be it an "ordinary subscriber" or a "commercial subscriber"; secondly the terms "commercial establishment" and "commercial subscriber" are defined elaborately and classified separately from "ordinary subscriber" and thirdly, though defined and classified separately from "ordinary subscriber", for the purpose of charges for receiving supply of channels, the very large and highly heterogeneous body of "commercial subscriber" is en -block put completely at par with the "ordinary subscriber". The appellants are aggrieved by the amendments in so far as the commercial subscriber is put at par with the ordinary subscriber and contend that as a result of the impugned amendments, the tariff orders treat as equal, groups of subscribers that are inherently unequal and are also so recognized in their different definitions in the tariff orders.
(2.) THE issues arising in this appeal go back to a period of about ten years over which the matter has engaged the attention of both this Tribunal and the Supreme Court and the tariff orders framed by the Telecom Regulatory Authority of India (TRAI) and (amended from time to time) have come under judicial scrutiny more than once. In a writ petition relating to controversies arising at the time of introduction of the conditional access system regime in the four metropolises, including Delhi, the Delhi High Court by an order passed on 26 December, 2003 allowed the implementation of the regime on an experimental basis for three months, observing that it would give further directions in the matter on receipt of inputs regarding the working of the regime. At that stage the Central Government issued notification No. 39, dated 9 January 2004 comprising S.O. Nos. 44 and 45. By S.O. 44 the broadcasting services and cable services were brought within the purview of telecommunication services as defined under section 2 (k) of the TRAI Act and by S. O. 45 the Telecom Regulatory Authority of India (TRAI) was assigned additional functions in respect of broadcasting services and cable services empowering it inter alia "to specify standard norms for, and periodicity of, revision of rates of pay channel, including interim measures". Within six days of issuance of the notification, TRAI issued a notification on 15 January 2004 promulgating The Telecommunication (Broadcasting and Cable) Services Tariff Order 2004(the First tariff order). This tariff order was directed to cover tariffs for all broadcasting and cable services throughout the country and in clause 2 provided as under: "2. Charges payable by (a) Cable subscribers to cable operator; (b) Cable operators to Multi Service Operators/Broadcasters (including their authorized distribution agencies); and (c) Multi Service Operators to Broadcasters (including their authorized distribution agencies) prevalent as on 26th December 2003 shall be the ceiling with respect to both free -to -air and pay channels, both for CAS and non -CAS areas until final determination by Telecom Regulatory Authority of India on the various issues concerning these charges."
(3.) THIS was a very brief order that did not define broadcaster or cable operator or multi -system operator or subscriber or any other related term or expression but simply fixed the rates prevailing on 26 December 2003 (the date of the Delhi High Court order) as ceiling at all the three tiers in the broadcasting services. It was evidently an urgent and interim measure meant to "give relief and protection to the consumers of broadcasting and cable TV services from frequent hikes in cable TV charges".;

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