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TRAI, TDSAT & Broadcasting

28th March 2007
By Hemant in Legal
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- Hemant Narain*

With the advancement and development of technology day by day in the field of telecom, internet and cable television broadcasting, it was felt necessary that a specialized regulatory body be established and regulated by the Central Government, which led to the establishment of TRAI (Telecom Regulatory Authority of India) in 1997 and TDSAT (Telecom Dispute Settlement Authority Tribunal) in 2000.

The variety of telecom services like electronic mail, voice mail, data services, audio text services, radio paging and cellular mobile telephone services which are being offered now to the users are amazingly vast. This has been possible because of opening up of all the telecom services for the private sector without any restriction on number of operators except for the cellular mobile phone segment due to frequency constraints.

Most of services are being provided by the private operators - Indian as well as foreign with Indian collaborations. Due to tremendous growth in the services it was considered essential to regulate the telecommunication services by a statutory body which should be fully empowered to control the services, in the best interest of the country as well as the service providers. To create such a body with all the statutory powers the Telecom Regulatory Authority of India Act was passed in 1997. This body, known as Telecom Regulatory Authority of India (TRAI), was originally invested with certain quasi-judicial authority to adjudicate and settle disputes also.

TRAI (Telecom Regulatory Authority of India) and TDSAT (Telecom Dispute Settlement Authority Tribunal) were established to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector.

The functions of the appellate tribunal i.e. TDSAT are to adjudicate any dispute between a licensor and licensee, between two or more service providers, between a service provider and a group of consumers, and to hear and dispose of appeals against any decision or order of TRAI, the appellate tribunal consists of Chairperson and two Members.

Section 14 of TRAI Act, 1997 provides for establishment of TDSAT, to adjudicate any dispute-

(i) between a licensor and a licensee;

(ii) between two or more service providers;

(iii) between a service provider and a group of consumers;

The Central Government or a State Government or a local authority or any person aggrieved by any direction, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal. The provision of this section provides that nothing of this clause shall apply to the provisions relating to-

(a) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission.

(b) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission.

(c) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act 1885.

The appellate Tribunal shall also hear and dispose of appeal against any direction, decision or order of the Authority under this Act.

The limitation period for filing an appeal against the order of TRAI in TDSAT is 30 days, an appeal may be entertained even after the expiry of aforesaid period if it is satisfied that there was sufficient cause for not filing it within that period.

The selection of Chairperson and Members of the Appellate Tribunal shall be made by the Central Government in consultation with the Chief Justice of India. The Appellate Tribunal came into existence on 29th May, 2000 and started hearing cases from January 2001.

According to the provisions of Section 14N all appeals pending before the High Court shall be transferred to the Appellate Tribunal. On receiving such records the appellate tribunal may proceed to deal with such appeal from such stage which was reached before such transfer or from any earlier stage or de novo as the Appellate Tribunal may deem fit. Thus this provision led to the piling of cases at TDSAT immediately after its establishment, as prior to the Amendment Act of 2000, the appeal against the order of TRAI can be filed in High Court.

No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 16 provides that the Appellate Tribunal shall have powers to regulate its own procedure. It shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice.

The TDSAT shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908).

Further no Civil Court shall have jurisdiction in respect of any matter which the Authority is empowered by or under this Act to determine. According to Sec 19, orders passed by Appellate Tribunal shall be executed as a decree.

Earlier main function of TRAI was to regulate issues relating to telecom sector only but with the advancement in technology of cable television broadcasting it also came within the purview of TRAI and TDSAT. Thus it covers aspects of cable television broadcasting including CAS (Conditional Access System) and DTH (Direct to Home).

The Cable Television Network (Regulation) Act in 1994 had eased some of the control by allowing private broadcasters to beam television programmes through cable carriage to viewers. The most important landmark in this process is the Supreme Court judgment in 1995 declaring the air-waves to be public property. In the case of Union of India Vs. Cricket Association of Bengal Hon'ble Supreme Court declared the airwaves as 'public property', to be utilized for promoting public good and ventilating plurality of views, opinions and ideas.

The Government of India issued a notification whereby the scope of the expression 'telecommunication services' (defined in Section 2 of the Telecom Regulatory Authority of India Act, 1997 as amended) was expanded to include the broadcasting services and cable services also. Consequently the Telecom Regulatory Authority of India is entrusted with the basic task of regulation of cable and broadcasting services in the country.

Thus, the broadcasting and cable services also came within the purview of the Telecom Regulatory Authority of India. Through this Notification, the Government of India authorised the Telecom Regulatory Authority of India to specify inter alia standard norms for and periodicity of revision of rates of pay channels including interim measures. The said notifications further authorised TRAI to make recommendations on the parameters for regulating maximum time for advertisements in pay channels and other channels, and the terms and conditions for "addressable systems" provided to subscribers.

TRAI also covers issues like development of Broadcasting and Cable services technology (including Direct-to-Home and Broadband) and any other matter relatable to this industry, in general , including aspects relating to advertisements on TV channels which covers aspects like-

(i) the maximum advertising time to be permitted per half-an hour

on free-to-air channels along with other conditions that are required to be imposed;

(ii) the further regulation of advertising on pay channels in reference to tariffs for the channels;

TRAI also took special measures to increase competition, promote efficiency and encourage wider consumer choice in the operation of Broadcasting and Cable services so as to serve consumer interests and to ensure the availability of services in rural and remote areas.

The Ministry of Information & Broadcasting, Govt. of India issued a notification to amend Cable Television Network Rules, 1994 to provide for implementation of the Conditional Access System (CAS). Broadly the notification required:

(i) Broadcaster to declare the channel as "Pay" or "Free to Air" and the maximum retail price of each of their channels to be charged either by the MSOs or local cable operators (LCO) from the subscribers in the notified areas.

(ii) Subscribers desiring to receive Set Top Boxes shall apply for the same

directly to the MSO or through the LCO.

In connection with implementation of CAS, the TRAI issued another notification dated 24.8.2006 which seeks to amend the Interconnection Regulations of 10.12.2004. This notification provides

(a) Prohibition of minimum guarantee clause in an interconnection agreement with a distributor providing services through an addressable system.

(b) Standard forms of Interconnection Agreement to be executed between the broadcasters and MSOs on the one hand and between MSOs and LCOs on the other when they are unable to arrive at mutually agreed terms and conditions within the stipulated time.

(c) Revenue sharing between the broadcasters, MSOs and LCOs in the proportion of 45%, 30% and 25% respectively.

The above mentioned notification was challenged in SET Discovery Private Ltd. Vs. TRAI & others , M/s ESPN Star Sports Vs. TRAI & others and also in M/s ESPN Star Sports Vs. TRAI & others , but the petition challenging it was dismissed by TDSAT.

Besides CAS the other system of Cable Television Broadcasting is DTH i.e. Direct to Home broadcasting.

Interoperability of Set top boxes of DTH (Direct to Home) Service

The main disadvantage of DTH service is that once a subscriber has subscribed for DTH service and put down money for a set top box, there is no scope for changing his mind if the service is not up to the mark. After an entire decade (the debate began at the end of 1996 when Star TV first decided to offer DTH) of discussion on set top box interoperability, DTH providers are now in the market with proprietary set top boxes which you have to buy, not rent and which will become so much junk if you decide to switch from Sky to Zee's Dish TV or to Doordarshan's free service.

Tata Sky asked to beg off the interoperability requirement because it wanted to give its customers set top boxes with PVR/DVR features (Personal Video Recorders/Digital Video Recorders) which could not have interoperability because of their advanced technology

The Telecom Regulatory authority of India (TRAI) pondered over this and recommended the following:

There should not be any amendment in those articles of the DTH License Agreement which mandate technical interoperability among DTH service providers. In the same breath it said the license conditions should be amended to oblige the service provider to "inform and educate the consumers about the limited technical interoperability of the Set Top Boxes with PVR/DVR." First, interoperability does not exist today. For Doordarshan's DTH you can pick up any set top box available in the open market; for Tata Sky you have to buy an STB, ditto for Dish TV and these are not interchangeable.

Procedure for filing a petition in TDSAT

In exercise of the powers conferred by Section 16(1) of the Telecom Regulatory Authority of India Act, 1997, the Telecom Disputes Settlement & Appellate Tribunal makes the following procedures to regulate its functions: -

(a) Parties/Counsel will be required to file one original and four copies of the petition/ appeal/ misc. application and all other pleadings

(b) The language of the Tribunal shall be English provided that the Bench may in its discretion permit the use of Hindi in its proceedings.

(c) An advocate representing a party in a case shall file a duly executed

Vakalatnama bearing court stamp of Rs.2.75;

(c) The contents of the petition/appeal/misc. application/counter affidavit etc. shall be supported by a verification regarding their correctness by the petitioner/ appellant/applicant or respondent or the person authorised to sign petition/appeal/misc. application/counter affidavit etc.

(d) Before filing any petition/appeal/misc. application/other pleadings before the Tribunal, a copy of the same shall be served on opposite parties and proof of service necessarily be enclosed.

(e) Fees: Petition/Appeal/Misc. Application shall accompany the required fees in the form of demand draft, in favour of Drawing and Disbursing Officer, Telecom Disputes Settlement and Appellate Tribunal.

(f) The proceedings before the Tribunal shall be open to the public.

(g) Every order of the Tribunal shall be in writing and shall be signed by the Members constituting the Bench.

(h) Any order passed in regard to the petition/appeal/misc. application shall be communicated to the petitioner/appellant/applicant and the respondent either in person or by registered post.

Mostly the cases that are filed are between telecom operators or the cable broadcasters but with private operators coming in radio broadcasting, disputes between them are also like in the case of Radio Mid Day West (India) Ltd. Vs. Union of India where, TDSAT dismissed the petition filed by the petitioner challenging the change of frequency allocation of petitioner by the respondent.

In Him Mohini Communication Pvt. Ltd. Vs. Star India Pvt. Ltd , TDSAT ordered that the fresh agreement for the year 2006 will be signed irrespective of the adjudication of the proceedings of the petitions pending in the Court.

A batch of petitions was filed by a couple of Associations of Hotels and Restaurants together with a hotel against leading broadcasters and their authorized distributors in Telecom Disputes Settlement and Appellate Tribunal. The dispute basically pertained to the fact whether the hotels and restaurants can be equated with domestic consumers for the provision of cable TV service besides other connected and consequential issues under adjudication. The Hon'ble TDSAT while adjudicating on the issues of dispute in its judgment dated 17th January, 2006 in Hotel Association of India and Another Vs. SET Discovery Pvt. Ltd & Other and in Hotel & Restaurant Association of India (Western Region) Vs. Star India Pvt. Ltd. in the light of the provisions of Telecommunication (Broadcasting and Cable) Services (Second) Tariff Order, 2004 (6 of 2004) of 1.10.2004 had observed inter alia as under:

"36. ..........We have already concluded that the members of the petitioner associations cannot be regarded as subscribers or consumers. As such we are of the view that the above tariff notification of the TRAI would not be applicable. It seems that TRAI has found it necessary to fix the tariff for domestic purpose. We think the Regulator should also consider whether it is necessary or not to fix the tariff for commercial purposes in order to bring about greater degree of clarity and to avoid any conflicts and disputes arising in this regard 5

37. In view of the above, we are of the opinion that the respondents are well within their rights to demand members of the petitioner associations to enter into agreements with them or their

representatives for receipt of signals for actual use of their guests or clients on

reasonable terms and conditions and in accordance with the regulations framed

in this regard by TRAI".


At present, the law relating to telecom and broadcasting in India can be broadly outlined with the following landmarks:

(1). Indian Telegraph Act, 1985

(2). Telecom Regulatory Authority Act, 1997 as amended in 2000

(3). Indian Wireless Telegraphy Act, 1933

(4). The Telegraph Wires (Unlawful Possession) Act, 1950

(5). Cable Television Networks (Regulation) Act, 1995

(6). Supreme Court Judgment pertaining to the use of air-waves, 1995

(7). Prasar Bharati Act 1997

(8). Cabinet Approval for Commercial Ownership of FM Channels, 1998

Now the parliament has introduced "Communication Convergence Bill, 2001" which is going to consolidate all the relevant provisions of different Acts governing the law relating to telecom and broadcasting and repealing the various Acts like, the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, the Telegraph Wires (Unlawful Possession) Act, 1950 and the Telecom Regulatory Authority of India Act, 1997 and Cable Television Networks (Regulation) Act, 1995

Some of the major provisions of Communication Convergence Bill, 2001 are:

It provides for establishment of Communication Commission of India and its Appellate Tribunal, with Commission's head office at New Delhi and branch offices at Mumbai, Chennai and Kolkata. It shall consist of a chairman and members as specified.

Thus, with the enactment of this Bill, TDSAT will be a thing of past as the Communication Commission of India and its Appellate Tribunal will replace it.

Moreover, this new legislation also provides for rules of interception and punishment for unlawful interception.


Submitted By: Hemant Narain


Indian Institute of Information Technology Allahabad.
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