ESPN SOFTWARE INDIA PRIVATE LIMITED Vs. TELECOM REGULATORY AUTHORITY OF INDIA

JUDGEMENT

(1.) THE Appellant has preferred this Appeal against the direction No. 4-31/2008/ B&CS dated 24th June, 2008 issued by the Respondent, the Telecom Regulatory Authority of India (hereinafter referred to as the Authority). THE Appellant is an exclusive distributor of ESPN, Star Sports and Star Cricket services in India. THE Appellant claims that the Principals of the Appellant have acquired the exclusive rights to broadcast, in India, important national and international sporting events by investing heavily through competitive bids. It is claimed by the Appellant that the channel enjoys high popularity in India and is very well received by the cable viewing homes since its inception in the year 1995. THE Respondent is Telecom Regulatory Authority of India (TRAI) constituted under the Telecom Regulatory Authority of India Act, 1997, with powers to regulate 'telecom services' which term includes 'broadcasting services'.

(2.) The Appellant provides its channels to various Cable Operators, Multi System Operators and Direct to Home (DTH) operators. As per TRAI Regulations, the Appellant issued a Reference Interconnect Offer (RIO) for DTH operators on 15.5.2008, which included the terms of payment. These included a condition that DTH operators should agree to keep all the channels/services i.e. ESPN Star Sports and Star Cricket in the entry level pay tier. The above terms of the RIO were challenged by Tata Sky in a petition filed before the this Tribunal on the ground that the same was violative of Regulation 13.2A.11 of the Telecommunication (Broadcasting & Cable Services) Interconnection (Fourth Amendment) Regulation 2007. During the pendency of the Petition, ESPN wrote a letter dated 11.6.2008 to TRAI and informed it that it would withdraw the RIO and shall be filing a fresh RIO very shortly. The Respondent, vide its letter dated 19th June, 2008, wrote to the Appellant and advised it to file the fresh RIO by 23.6.2008 and also informed the Appellant that its existing RIO will be effective till a fresh RIO is filed. The Respondent further directed the Appellant vide its letter dated 24.6.2008 that the Appellant should, within 15 days, modify its RIO for DTH operators so as to:

(3.) THE Appellant has contended that with a view to dispel any wrong notion about its RIO, it made a representation dated July 10, 2008. In this representation, the Appellant clearly mentioned that in ASC Enterprises case and the Tata Sky case, TDSAT had decided both the matters on merit based on facts and circumstances that existed at that time and presented before it. It was also pointed out that the two judgments were intended as a basis of advising and directing broadcasters to offer its channels to DTH operators @ 50% of its non-CAS rates. THE Appellant also contended that, without prejudice to its rights, it had complied with the direction of the Authority and had filed a compliance report along with its revised RIO, which has also been posted on the website. In fact, its offer to DTH operators of a rate which is 50% of its non-CAS listed rates is exactly in consonance with TDSAT's judgments and advisory/direction of TRAI.