TRAI Tariff Order Upheld by HC; 3rd Judge Concurs with CJ's View

Chennai, May 23 (PTI) With a third judge today supporting the findings of Chief Justice Indira Banerjee, the Madras High Court has upheld the Telecom Regulatory Authority of India's March, 2017 regulations and tariff order relating to fixation of charges for free and pay channels.

A two-judge bench headed by Chief Justice Indira Banerjee, which had delivered a split verdict on the matter on March 2, referred to a third judge the petitions challenging TRAI's regulations.

In his 150-page judgment today, the third-judge, Justice M M Sundresh, supported the findings of Chief Justice Banerjee following which the majority judgment of upholding the TRAI's recommendations will prevail.

Passing orders on the petitions filed by Star India Private Limited and its subsidiary Vijay Television Private Limited, the Chief Justice had upheld the impugned regulations, the tariff order on pricing and packaging of TV channels offered in a bouquet and a cap on channel prices.

The Chief Justice, however, held as "arbitrary" the clause putting a cap of 15 per cent on the discount on the maximum retail price (MRP) of a bouquet and said it was "not enforceable".

In his dissenting judgment, Justice M Sundar struck down various provisions in the tariff order which touch upon content of the programmes of broadcasters as not in conformity with the parent Telecom Regulatory Authority of India Act.

After hearing senior advocates Abhishek Manu Singhvi, P Chidambaram and Gopal Jain for petitioners and that of TRAI senior counsel P Wilson, the third judge concurred with the findings of the chief justice, today.

"Suffice it is to state that TRAI Act involves regulation of airwaves and frequencies being public properties, touches upon various stakeholders with primacy to the public interest.

"To put it differently, the general public is the king, being the subscriber whose interest should be guarded and protected under the Act as a prime factor. TRAI is thus obligated to take adequate measures as mandated by the statute," Justice Sundresh observed.

According to Wilson, by virtue of the majority judgment, the entire broadcasting regime will be completely changed from today.

"Now, the broadcasters have to declare in public domain, their free to air channels and maximum retail price of their pay channels... they cannot discriminate against any distributor," he said.

As many as 100 free to air channels should be offered at Rs 130 per month.

The price of pay channels shall be transparent. The regulation fixes a maximum 20 per cent fees on MRP for distributors, with outer limit of 15 per cent of discount.

However, the CJ in her March order had struck down this 15 per cent cap on discounts, Wilson said.

The petitioners challenged the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 and the consequential Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017.

Contending that the impugned order and regulations were unconstitutional and ultra vires of the provisions of the TRAI Act, 1997 in as much as they were beyond the scope of the jurisdiction of the regulatory authority, they sought to quash the same.

Among others, the TRAI regulations said channels when given in bouquets should not be a mix of pay channels and free to air channels, and mandated that a bouquet should not contain any pay channel where the maximum retail price was more than Rs 19.

It had also said MRP of a bouquet should not be more than 85 per cent of the sum of a-la-carte MRP of pay channels constituting a bouquet.

Besides, the regulations also mandated that MRPs of broadcasters should be uniform for all distribution platforms.

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