Judgment:
G.D. Gaiha
The petitioner is a Multi Service Operator. It has filed this petition for a direction upon the respondent who is a broadcaster within the meaning of provisions of the Telecommunication
(Broadcasting and Cable Services) Interconnection Regulations, 2004 (The Regulations) in respect of three of its products commonly known as ESPN, Star Sports and Star Cricket on settlement of commercial terms.
2. The dispute between the parties relates to the subscriber base. According to petitioner having regard to the provisions of the Cable Services (2nd) Tariff (9th Amendment) Order, 2008, the maximum amount of charges payable by a subscriber per month being Rs.235/- for the town of
Bhubaneswar, the rates for the principal channels would come to Rs.405.13paise, it would be impossible for any MSO to comply with the said order.
3. According to Mr. Balaji Srinivasan, the learned counsel appearing on behalf of petitioner it is submitted that its subscriber base would be 13.76% and thus the respondent can be directed to enter into a subscription agreement with it on 10 to 15% of the actual subscriber base, which would not be prejudicial to the respondent.
With a view to arrive at a subscriber base, parties have been heard from time to time. Various interim orders have been passed by this Tribunal after filling of the petition on 29th April, 2009.
4. On an earlier occasion, we issued an order on 13th May, 2010 directing the parties as an interim measure to negotiate on the basis of subscriber base arrived at a joint survey, for final determination of subscriber base on negotiated basis. It was also directed that the subscriber base may be raised to 2500 from 1500 purely as an interim measure for payment to the respondent
by the petitioner. In case the subscriber base arrived at by negotiation or by determination by this Hon’ble Tribunal is different, adjustments accordingly may be made by the parties.
The case was listed on 13th July, 2010.
Mr. Vibhav Srivastava, the learned Commissioner appointed by this Tribunal was cross-examined by the learned counsel for the respondent. We have issued another order on 6th August, 2010 on the joint survey report and we found that the report is not based on actual survey and is only based on inferences drawn on various meetings in the Bhubaneswar city. From a perusal of the cross- examination of the learned Advocate Commissioner, vis-Ã -vis his report, we came to a conclusion that the survey report in itself is not complete and no conclusive decision can be taken on the
basis of this report. We heard the case finally on 12.8.2010 and reserved our
orders.
5. The petitioner has furnished a Subscriber Line Report provided by it to the broadcasters involved in Petition Nos.196 (C)/2009, 177 (C)/2009 and 276 (C)/2009.
The petitioner has shown 42 link operators in the aforementioned SLR.
6. The case was listed for mentioning on 27th May, 2011. Since for the same city of Bhubaneswar in Petition No. 196 (C) of 2009, Petition No. 177 (C) of 2009 and Petition No. 276 (C) of 2009 efforts were being made to carry out a joint survey, we, therefore, thought it fit that this case is mentioned again and we take the latest status of the case in regard to the determination of the subscriber base.
7. The petitioner submitted that they have written a letter to the respondent on 11.4.2011 in compliance of the order dated 25.3.2011 for three petitions, i.e., Petition No. 196 (C) of 2009, Petition No. 177 (C) of 2009 and Petition No.
276 (C) of 2009 by which they have provided the current franchisee list and the subscriber base to the said broadcasters, respectively which also includes the latest franchisees who have joined since 25.2.2011, 28.2.2011, 2.3.2011 and 4.3.2011. They have also invited the broadcasters in the above petition by this letter for negotiating the subscriber base for signing the subscription
agreement on a mutually agreed subscriber base on non-discriminatory basis as per the prevailing market position. The copy of the same SLR has been given to use when this case was mentioned on 27.5.2011. This SLR consists of 42 Cable Operators in the city of Bhubaneshwar and mentions the number of subscribers as well as the date(s) of joining of the cable operators in the network of the petitioner in the recent past. As per this SLR, we find the figure of subscriber base as admitted by the petitioner as 9760/- upto 24.2.2011 and an addition of 785 more subscribers from 25.2.2011 till 4.3.2011.
8. In that view of the matter, we are of the opinion that interest of justice would be subserved, if the respondent is directed to hold negotiations with petitioner on the basis of the said SLR so as to enable the parties to arrive on mutual terms on the basis whereof an agreement can be executed.
9. We, furthermore, are of the opinion that subject to such negotiations and subject to arriving at a consensus on the subscriber base, the agreement may be signed. In the meantime, we are of the opinion that purely as an interim measure, the petitioner may pay to the respondent on the basis of 5000 subscribers w.e.f 01.01.2011. The final adjustments may be made as per the figure arrived at in the agreement.