A writ petition is moved before the High Court of Kerala by three residents of the said state who are the subscribers to Asianet Digital Network Private Ltd. and DEN Digital Cable Networks Ltd. challenging the TRAI orders that regulate the Capacity fee, Basic Service Tier and Discounting offered by the Broadcasters.
Brief facts:
The three residents of Kerala has filed the writ petition challenging the following orders of TRAI as illegal, arbitrary and are opposed to the legal rights & interests of the consumers.
- Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulation, 2017.
- Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tarrif Order, 2017.
- Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) (Second Amendment) Regulation, 2020.
- Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tarrif (Second Amendment) Order, 2020.
As per Section 4-A of Cable Television Networks (Regulation) Act, 1995 the cable networks are made available to the consumers through addressable systems. It has further stated that the distributor has to mandatorily offer basic service tier package that comprises free to air channels of different genres for which the subscriber has an option to subscribe the same.
It is pertinent here to note that TRAI which was initially established to regulate the telecommunication services was entrusted with the function to regulate the broadcasting services by and under a notification dated 09/01/2004 issued by the Ministry of Communication and Information Technology. The additional functions of the TRAI with regard to the broadcasting services included
- To recommend terms and conditions on which the addressable systems shall be provided to the consumers.
- Regulating the maximum time for advertisements in paid channels and other channels as well.
- Revision of rates of pay channels and other interim measures.
Thus it is observed that TRAI is not entrusted with the powers to impose any fee that is to be mandatorily paid by the subscribers. However the TRAI has issued Telecommunication (cable Network) Services Tarrif order 2004 on 15/01/2004 fixing the existing charges paid by the subscribers to the distributors for free to air channels and pay channels as a ceiling limit. TRAI by various orders have revised the amount to be paid by the subscribers from time to time. However these orders were not challenged by the subscribers as they had the option to subscribe the same.
On 01/01/2017, TRAI issued a notification, Telecommunication (Broadcasting and Cable ) Services Interconnection (Addressable Systems) Regulation, 2017 which purported to regulate the commercial and technical arrangements among service providers for interconnection and broadcasting services relating to the television provided through addressable systems. However the said regulation imposes network capacity fee to be paid by the subscribers which is beyond the scope of the regulation. Further the said regulation also sets a cap on the discount offered by the broadcaster on a bouquet channels offered by them.
Such being the case, TRAI issued Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tarrif (Second Amendment) Order, 2020 through which the option given to the subscribers to subscribe the basic service tier was taken away.
Key features:
The writ petition prayed for issuing a writ of mandamus or any other orders that is suitable
1. Declaring that section 11(2) of TRAI Act does not empower it to impose any compulsory fee on the subscribers who does not come under the definition of service providers
2. Declaring Section 2(ee) of Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulation, 2017 as violation of Article 14, 19(1)(a) and 21 of Indian Constitution.
3. To declare Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tarrif Order, 2017 and Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tarrif (Second Amendment) Order, 2020 as illegal, arbitrary and is without any authority
4. To declare imposition of upper limit of discount offered by the broadcaster as violation of fundamental right guaranteed under Article 19(1)(a).
5. And such other orders that the court may deem fit.
The petition on the whole contends that the imposition of fees is not through any operation of law or by and under any executive orders.Thus this writ petition challenges the changes brought by TRAI stating them as violation of Article 19(1)(a).
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
