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Judgment
Looking to the contentious issues raised in this Broadcasting Petition, the same is Admitted.
Notice upon respondent which is accepted by Mr. Himanshu Dhawan and he is seeking time to file Vakalatnama within a week and he is also seeking two weeks’ time to file the reply.
Learned Senior Counsel for the petitioner has vehemently argued for getting ad-interim relief as prayed for in this petition especially restraining the respondent from issuing or causing issuance of advertisements/scrolls/on-screen displays on any media, print or electronic including on the platform of the petitioner.
Counsel appearing for the petitioner has submitted that the petitioner is a DPO and the respondent is a broadcaster and an RIO based agreement has been entered into between the parties to this litigation on 1.7.2024 with the respondent.
Counsel for the petitioner has also taken this Tribunal to various communications/emails between the parties to this litigation especially Annexure P-2 to the memo of this petition especially page No. 66 thereof.
Counsel for the petitioner has also pointed out that the respondent has given two different rates – one for a-la-carte for their channels and another for bouquet of channels of the respondent.
It is submitted by the counsel for the petitioner that the petitioner has right to form its own bouquet. Counsel for the petitioner has taken this Tribunal to Regulations 34 and 35 of Telecommunications (Broadcasting and Cable) Services Standards of Quality of Service and Consumer Protection (Addressable Systems), Regulations, 2017 to be read with Regulation 3(1) thereof and has pointed out at the highest broadcaster can publicize maximum retail price of all channels and bouquet through website or running scroll on the concerned channels.
It is submitted by counsel for the petitioner that the respondent has started scrolling several sentences which are mentioned at Annexure P-4 (colly) for which complaint has also been made to TRAI.
Counsel for the petitioner has taken this Tribunal to various pages of this objectionable scrolls mentioned at page no. 67 which reads as under: -
“a) The customer of Hathway and GTPL-KCBPL can watch all 4 channels of SIdharth with “Sidharth Odia Pack” for Rs.20.99/- per month;
b) If you have any problem in getting the channel call or whatsapp at 6372804618.”
It is further submitted by counsel for the petitioner that on page no. 81 the translated copy has been produced of the scrolls by the respondent which reads as under: -
“There is now an additional monthly charge to watch Sidharth TV, Jai Jagannath TV, Siddharth Bhakti and Sidharth Gold on GTPL-KCBPL and Hathway cable.
But this additional cost is not payable on Tata play, Dish TV, Airtel TV, Sun Direct D2H, Siti Cable, NXT Cable and all other Cables. You can compare and choose the best service”.
Similarly, counsel for the petitioner has taken this Tribunal to page no. 83 where it has been also mentioned that on-screen messages/scrolls being run in Odiya language translated in English which reads as under: -
“There is now an additional monthly charge to watch Sidharth TV, Jai Jagannath TV, Siddharth Bhakti and Sidharth Gold on GTPL-KCBPL and Hathway cable.
But this additional cost is not payable on Tata play, Dish TV, Airtel TV, Sun Direct D2H, Siti Cable, NXT Cable and all other Cables. You can compare and choose the best service”.
Counsel for the petitioner has taken this Tribunal to Annexure P-5 especially on page no. 75 which is an email by the respondent dated 16.7.2024. For the ready reference what is expected by respondent has been reduced in writing in the aforesaid email at Annexure P-7 (colly) dated 16.7.2024 and the relevant part thereof reads as under:
“In the circumstances, we immediately call upon you to immediately:
(i) Activate the “Sidharth Odia Pack” on your recharge portal without any further delay.
(ii) Inform subscribers by way of publications and SMS through registered mobile numbers of the Subscribers regarding the procedure by which the customers can opt to the “Sidhartha TV Bouquet” at your website.
(iii) Publish Sidhartha TV Bouquet on your website at par with other bouquets of the Pay TV Channels.
(iv) Bring us to the Parity with all the Pay Channels available on your platform at non-discriminatory basis.
(v) Inform and educate the subscribers and LCOs regarding the availability of SIDHARTHA TV Bouquet at Rs. 20.99/- (Rupees Twenty and Ninety-Nine Paisa Only)
(vi) Ensure Consumer Center of your website is in compliance with QOS Regulations, 2017 and all the requisite features and information is available on the website.
(vii) Withdraw your Emails dated 10.07.2024 and 12.07.2024 immediately.
In case your office fails to comply with the above-mentioned requirements within 3-days from the date of receipt of the present email, we shall be constrained to avail appropriate legal remedies as may be available to us under the law.
Present communication is without prejudice to the rights and remedies as may be available to us under the law or the RIO agreement.”
Counsel for the petitioner is much aggrieved by item no. (iv) from the aforesaid list. In that context, it is submitted by counsel for the petitioner that the petitioner is already on a-la-carte basis of four channels of the respondent as well as the bouquet rates and its right vested in the petitioner to have DPO’s bouquet. Petitioner has already shown the ala-carte rates as well as bouquet rates of the channels of the respondent on “recharge portal or website portal of the petitioner”
It is pointed out by counsel for the petitioner that because of aforesaid objectionable scrolls by the respondent in defiance of Regulation 34 as well as Regulation 35 to be read with Regulation 3(1) of the Regulations, 2017 the viewership of the petitioner has reduced substantially for which the petitioner has claimed damages to be decided at the time of final hearing of this Broadcasting Petition.
This scrolling is most objectionable so far as viewership of the petitioner subscribers are concerned and therefore, it is submitted by counsel for the petitioner that as an ex-parte ad-interim relief the respondent may be restrained from issuing and running issuance of all advertisements/scrolls/on-screen display on any media, print or electronic including on the platform of the petitioner.
We have heard learned counsel who is appearing on behalf of the respondent upon instructions of one Mr. Bibhuti who is Head of Operations. Counsel for the respondent has submitted that there is no violation of any Rules or Regulations applicable to the facts of the present case by the respondent. Counsel for the respondent further submitted that there are lot of concealment by the petitioner especially of several emails written by the parties to this litigation which affects the very root of the case.
It is also pointed by the counsel for the respondent that petitioner had initially not shown on the portal the a-la-carte rates as well as bouquet rates of the channels of the respondent but now on the portal of the petitioner these rates have already been shown.
Counsel for the respondent further submitted that the scrolls given by the respondent or published by the respondent on their channels for the viewers of the petitioner mainly for the reason that petitioner had also put their own scroll pertaining to the price of the channels of the respondent which increased substantially. This fact was wrong and, therefore, respondent was constrained to have the aforesaid scrolls on the channels of the respondent so that viewers of the channels of the respondent can see that there is not much increase in the price of the channels. It is submitted by the counsel for the respondent that the increase in the price of the channels of the respondent is only to the extent of Rs.1.50 approximately, for entire bouquet of four channels.
Counsel for the respondent further submitted that they have changed the scroll w.e.f. 28.8.2024.
In the aforementioned facts and circumstances of the case and Regulations 34 and 35 and Regulation 3(1) of the Regulations, 2017 and looking to the nature of the scroll as stated hereinabove published by the respondent on their channel, prima facie, appears in violation of the Regulations, 2017 and in violation of RIO based agreement dated 1.7.2024. There is a prima facie case in favour of the petitioner and balance of convenience is also in favour of this petitioner and if the stay, as prayed for, is not granted, it will cause irreparable loss to the petitioner.
We, therefore, direct the respondent to stop with immediate effect the aforesaid On-Screen Display (OSD) on the channels of the respondent which are shown by the respondent to their viewers. We further restrain the respondent from issuing or causing issuance of advertisements/scrolls/on-screen displays on any media, print or electronic including on the platform of the petitioner till next date of hearing.
Dasti service of this order is permissible.
List this matter under the heading "For Directions" on 12.9.2024.