| In
its pronouncement on the appeal filed by Set Discovery, ESPN Star Sports (Singapore)
and ESPN Software India, TDSAT held that the case was devoid of merit, and thus
the appellants are liable to pay costs, totaling Rs 150,000, to Trai, which had
proved its case. In
a related development, some of the respondents in the case that includes Trai,
Indus Ind Media and Communications Limited, and Hathway Cable & Datacom Private
Limited, have filed a Caveat in the Supreme Court, since the broadcasters are
most likely to appeal against the TDSAT order in the apex court. While
giving its ruling, TDSAT said that the broadcasters had themselves said that 70
to 80 per cent of their revenues come from advertisements, and the bench noted
that "at various fora", it has been argued by the broadcasters that
they also generate revenue through sub-licensing and through fees paid by consumers
in sending SMSs to the channels. It
held that the same broadcasters had said that due to underdeclaration by LCOs
and MSOs, they get only 20 per cent of the subscription revenue actually generated. The
tribunal noted that under the Cas regime, wherever Cas has been implemented, there
is no longer a question of underdeclaration, and therefore, data on subscription
revenue is 100 per cent. In
this situation, whereas the broadcasters were - as they themselves said - earning
only 20 per cent from subscription, the Trai order on Interconnection gave them
45 per cent, which is a sea change. Hence,
going by the arguments of the broadcasters themselves, the case is devoid of merit
and liable for dismissal, with a cost of Rs 50,000 per appellant. The
tribunal, comprising the full bench of chairperson Arun Kumar, and members DP
Sehgal and Vinod Vaish, made the following observations: "We
have carefully considered the procedure undertaken by Trai for conducting the
exercise. We have also considered the justification for the regulation. We find
that the approach of Trai in regulating the CAS regime at its introductory stage
in the notified areas is fully justified. "We
find nothing wrong in the process undertaken by the Authority. In this connection
we note that the Trai was conscious of its difficulties and the problems which
it had to face while conducting the exercise. "It
was a virgin field and the Chennai model could not serve as a good guide. The
exercise was complex and it was made all the more difficult by the non-cooperative
attitude of the broadcasters. In the given circumstances, Trai, in our view, has
acted fairly by balancing the competing interests. "The
Authority has promised to revisit the issue, including consideration of deregulation
if the circumstances so warrant. The experience to be gained after introduction
of CAS would enable it to reconsider everything. "This
being a transitory phase, the appellants ought to have had patience and ought
to have waited till Trai was able to revisit the issue. The hurry on their part
to raise the issue before this Tribunal was not necessary. "We
also cannot help observing that the broadcasters are either unmindful of the fact
that they stand to gain in the CAS regime or they are intentionally feigning lack
of knowledge of this fact. "To
say the least, they have not been fair in placing their case before us. We find
no merit in these appeals. They are liable to be dismissed. We order accordingly.
Appellants will bear the costs of the Respondent, Trai which we quantify at Rs
50,000/- for each appeal. Costs are awarded only in favour of Trai," the
TDSAT order concluded. | 
