|
Kaushik
said, "We have a very good subscriber
base in the south, and we wanted that they
should get all the channels. Now this will
happen, and at the end of the day the best
part of the order is that it has ensured
consumer choice, which seems to be the driving
ideology of TDSAT as seen from most of their
pronouncements."
The
court observed that the petitioner is licensed
by the Government of India to provide Direct-To-Home
(DTH) services to television viewers across
India.
"The
respondent is a broadcaster offering multiple
channels for viewing by subscribers of cable
as well as DTH operators as per a list filed
by the petitioner. As per the said Annexure,
the respondent has 20 channels under its
umbrella, each of which is offered at the
individual rates given in the said Annexure.
The
court remarked that that Annexure has not
been disputed by Sun TV.
TataSky's
case is that Sun TV has refused access to
its channels on non-discriminatory basis
to the petitioner. It had prayed for direction
to the respondent to discharge its statutory
obligation under the Inter connection Regulations
framed by the Trai dated 10 December, 2004
to provide signals of its channels to the
petitioner on reasonable terms and conditions.
The
court has held: "On merits the main
controversy revolves around the fact that
the respondent wants to give all its 20
channels as a package and on a price quoted
by it, whereas the petitioners' case is
that the respondent has not made all its
channels as part of a package or a bouquet.
"They
are being offered on a-la-carte basis and
therefore, the petitioner is entitled to
take whatever channels it wants to take
on the price quoted by respondent as part
of a-la-carte rates reduced by 50 per cent.
TataSky
senior counsel Ramji Srinivasan, however,
had supported his case using an affidavit
that Sun had filed earlier in the case,
which the court noted.
"The
Answering Respondent states that the channels
provided by the Respondent cannot be stated
to be a bouquet in as much as the amount
charged by the Answering Respondent for
the package of channels is the sum total
of the charges of individual channel".
It
held also the Sun senior counsel "was
unable to refute the above averment in their
affidavit, nor was he able to point out
anything in the pleadings to suggest that
all their channels were part of a package
and were not being offered on a-la-carte
basis.
In
fact, Srinivasan had described as "sham"
an agreement that Sun produced to show that
it was giving rival DTH player Dish TV their
channels as a bouquet, and this is where
the case earlier had taken a significant
turn.
"Dish
TV is not showing any of the channels of
the respondent (Sun TV) except one or two
channels which viewers of Dish TV are able
to see because they become available on
DD's Free-to-Air channels network and as
both parties i.e. DD and Dish TV are using
the same transponder," the court observed.
The
court apparently accepted Srinivasan's arguments
to an extent: "At this stage it is
difficult to say whether the alleged agreement
of the respondent with Dish TV is real or
sham.
"However,
we cannot lose sight of the fact that the
argument that Dish TV is still not showing
any of the channels of respondent inspite
of alleged agreement of November, 2006,
has not been controverted by the counsel
appearing for the respondent.
"Therefore,
for present purposes we can take it as correct
that Dish TV is not showing any of the respondent's
channels on its DTH platform. This casts
a doubt about the argument that another
DTH operator i.e. Dish TV has taken the
entire bouquet of respondent."
It
held, therefore, "Thus, at least at
this stage we are unable to accept the contention
of the respondent that the petitioner has
to accept all the channels of the respondent
as a package.
The
court looked into the argument of Sun that
TataSky is carrying bouquets of channels
of other broadcasters and therefore, petitioner
should have channels of respondent also
in bouquet only, saying that this is a "bald
argument", especially since Sun TV
has given any concrete in this behalf.
In
any case, the court observed that any agreement
between any two parties was distinct and
any such agreement between TataSky and any
other broadcaster could not be used to seek
relief from the interim order prayed for
by the DTH player.
The
court also described as factually contrary
to the Sun TV stand in its own affidavit
on the issue that that allowing TataSky
to take their channels on a-la-carte basis
would create a discriminatory regime because
the respondent is not offering its channels
on that basis to any other party.
"The
respondent has not placed any material before
us, nor anything was referred to in support
of the stand that it was offering its channels
only as a bouquet/package to its customers.
Such argument being advanced without laying
any factual foundation for it, is neither
here nor there," it remarked.
On
the issue of rates per a la carte channel,
the court said, "As an interim measure
we direct the respondent to make available
signals of all its channels to the petitioner
on a-la-carte basis at 50 per cent of its
declared rates. It is made clear that view
expressed in this order is only for purposes
of passing this interim order and it is
not an expression of final opinion on the
controversy between the parties in this
case.
The
matter to be listed for final hearing on
11th May, 2007.
Meanwhile,
TataSky's DTH rival Dish TV, which plans
to take Sun TV on its DTH platform, already
has an agreement in place with Sun, but
it will implement that after a joint marketing
campaign with Sun TV is worked out, sources
told indiantelevision.com.
Incidentally,
the issue of receiving channels a la carte
from a broadcaster to a DTH operator has
also become a major contention in the TataSky
Vs Zee Turner, which the TDSAT has just
concluded hearing and has reserved for judgement
later this month.
| 
