Delhi High Court: Navin Chawla, J., refused to pass an interim injunction in regard to the communication dated 03-09-2020 along with Press Release dated 03-09-2020 and Frequently Asked Questions issued by the respondent, BARC.

Jurisdiction to adjudicate the present dispute

The basis of the present petition was that the disputes raised challenge raised by the petitioner to the above-mentioned communication and press release comes under the jurisdiction of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), however, the working of which is suspended due to COVID-19.

Impugned Communication

Respondent which is registered as a television rating agency introduced algorithms into its data validation method purported to mitigate the impact of ‘Landing Page’ on viewership data across all genres of television channels.

The said data was published on 03-09-2020 and thereafter, published every Thursday.

The above-stated communication was challenged before TDSAT, which was allowed. TRAI again challenged the order of TDSAT before the Supreme Court, wherein the Court held that,

“.. we direct that the appellant shall not enforce Landing Page Regulations/directions against the respondents and other similarly situated members of the Association.”

In view of the Supreme Court’s decision, petitioners counsel submitted that, placement of television channels on the Landing Page is still permitted, though the operation of the Judgment of the TDSAT has been stayed.

Respondent has sought to restrict the rights of the television channels to be placed on the Landing Page on the same grounds as was sought to be done by TRAI.

Breaking down the High Court’s decision

With regard to the maintainability of the petition, Bench referred to Clauses 19.1 and 24.1 of the Policy Guidelines issued by the Government of India according to which the respondent is governed by the provisions of the Telecom Regulatory Authority of India Act, 1997 and any dispute between the Government of India and the respondent is to be raised before the TDSAT.

Section 14 of the Telecom Regulatory Authority of India Act, 1997:

“14. Establishment of Appellate Tribunal- The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to-

(a) adjudicate any dispute-

(i) between a licensor and a licensee;

(ii) between two or more service providers;

(ii) between a service provide and a group of consumers.”

End-User License Agreement executed between petitioner 1 and the respondent in Clause 6(v) and 9(i)(g)(v) allows the respondent to change the methodology used by it for the TV channel rating.

 End-User License Agreement

Further, the Bench added that, once it is held that TDSAT would have jurisdiction under Section 14 of the TRAI Act, 1997 the same cannot be diversified through an Agreement between the parties and especially Clause 24 of the End User License Agreement.

Clause 5.4.2 of the Policy Guidelines requires the rating agency to use necessary algorithms to detect outliers having unusual viewing behaviour and discard such data.

Landing Page by a channel exaggerates viewership estimates by “forcing viewership”.  The new methodology evolved by the respondent is after detailed study and testing across multiple genres and would ensure minimization of any “false positives or negatives”.

Adding to its analysis, the Court stated that the respondent can be presumed to be an expert in the field as also in possession of knowledge of the industry and the steps required for its improvement. Decisions of such a body cannot be interfered with lightly.

“TDSAT was considering the powers of the TRAI to issue the Direction prohibiting placement of TV channels on the Landing Page and concluded that TRAI had no such powers under the provisions of the Act.”

Hence, petitioners could not make out the case of grant of interim injunction. It was however clarified that no observation in the present order shall bind the TDSAT in deciding any petition filed before it.

[Bennett Coleman & Co. Ltd. v. Broadcast Audience Research Council of India, 2020 SCC OnLine Del 1330, decided on 29-09-2020]

Petitioner’s Counsels:

Senior Advocates Dr Abhishek Manu Singhvi and Maninder Singh with Advocates, Kunal Tandon, Kumar Shashank Shekhar, Prabhas Bajaj, Amit Bhandari & Amandeep Singh.

Respondent’s Counsels:

Senior Advocate Neeraj Kishan Kaul with Advocates Saikrishna Rajagopal, Sneha Jain, Ranjeet Singh Sidhu, Sudarshana MJ & Akash Lamba.

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