Case BriefsHigh Courts

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.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has extended the the tenure of the Chairman and the members of TDSAT for 3 months after Attorney General KK Venugopal submitted before it that  the tenure of the Chairman of TDSAT be extended for some period to enable the entire process of selection and appointment be completed.

The order of the Court reads,

“the tenure of the Chairman and the members of TDSAT be extended for a period of three months during which period the entire process of appointment of the Chairman and members be completed.”

The Court also asked the Government to take appropriate decision with regard to selection and appointment before the next date of hearing after National Disputes Redressal Commission submitted that the Selection and Search Committee has already made recommendation for judicial and non judicial members of National Disputes Redressal Commission on 24th June, 2020 which is pending consideration with the Government.

The Court has listed the matter on August 26, 2020.

Former Supreme Court judge Justice Shiva Kirti Singh is the Chairman of TDSAT. His tenure is coming to end on 20th July, 2020 and the tenure of members have already come to an end.

Case BriefsTribunals/Commissions/Regulatory Bodies

Kerala High Court: Anu Sivaraman, J., dismissed a writ petition seeking directions from the Court to direct regulating authority, Telecom Regulatory Authority of India (TRAI) to admit complaints against the respondent. 

The present case deals with disputes between two service providers of TV channels wherein the petitioner seeks from the present court directions to the third respondent, TRAI to consider the complaints presented by the petitioner against the other service provider.

The counsels representing the petitioner, S. Vinod Bhat and Kum Anagha Lakshmy Raman, submitted that they had entered into a formal agreement for placement and marketing support of the petitioner’s channels on the distribution network of the fifth respondent. It was submitted that TRAI had rolled out a regulatory framework for the service providers regulating all aspects of interconnection agreements between the service providers and the fourth respondent (being the other service provider) was duty-bound to comply with such regulation and amend the agreement accordingly. However, the fourth respondent refused to do so and the petitioner also sought the intervention of TRAI for compelling the fourth respondent to execute the agreement which was rejected by TRAI.

The third respondent submitted its contentions through a statement. It contended that the appropriate authority for resolve the dispute is Telecom Disputes Settlement Appellate Tribunal (TDSAT) and not TRAI. 

The Court upon perusal of the records and the circumstances stated that TRAI is empowered to make regulations with regard to interconnections between service providers, as it is the regulating authority and in case of disputes between the service providers, it is for the TDSAT to consider the matter.[Mathrubhumi Publishing and Printing Company Ltd. v. Union of India, 2020 SCC OnLine Ker 984, decided on 04-03-2020]

Case BriefsHigh Courts

Delhi High Court– Dismissing the writ petition filed by the petitioner challenging the orders of Telecom Disputes Settlement & Appellate Tribunal’s (TDSAT) on the ground that the procedure adopted by the TDSAT in making the orders and the jurisdiction exercised in issuing the directions contained therein is beyond the powers of TDSAT under the Telecom Regulatory Authority of India (TRAI) Act, 1997, the bench of R.S Endlaw J., held the petition to be not maintainable. The Court observed that jurisdiction cannot be exercised by this Court under Article 226 of the Constitution owing to the availability of alternative remedy of appeal under Section 18 of the TRAI Act

The petitioner had filed the petition as it was asked by the TDSAT to disclose the agreements it had entered into with Multi System Operator (MSO). The matter was listed before the TDSAT on 12 January. This Court while reserving its judgment in the present case, in an earlier hearing had directed the tribunal to defer the hearing scheduled on 12.01.2016 to a date after three weeks. Gopal Jain, Senior Counsel appearing for the petitioner contended that TDSAT has in the impugned orders stepped out from its adjudicatory role into regulatory function which under the TRAI Act is of the TRAI and not of the TDSAT. Per contra the counsel for respondent 4 on being asked the stand of TRAI contended that TDSAT in the impugned orders has interpreted the Regulations and TRAI did not find any fault with the impugned orders. Considering the contentions of both the parties, the Court was only concerned with the maintainability issue.

The Court relied on Dinkar Kumar v. Union of India 2014 SCC OnLine Del 2288 and Commissioner of Income Tax v. Chhabil Dass Agarwal (2014) 1 SCC 603 wherein it was held that the High Court will not entertain a petition under Article 226 on the exceptional grounds of violation of principles of natural justice or the order being wholly without jurisdiction or the vires of the Statute being under challenge, if an effective alternative remedy is available to the aggrieved person or the Statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. Thus, owing to the alternative remedy this petition was dismissed. [Star India Private Ltd. v.  Noida Software Technology Park Ltd,  2016 SCC Online Del 6690,  decided on 22.01.2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Telecom Disputes Settlement and Appellate Tribunal (TDSAT): While allowing a petition filed by Multi System Operator/ Cable Operator Manthan Broadband Services Pvt. Ltd., TDSAT directed INX News Pvt. Ltd. to pay to Manthan Broadband Services Pvt. Ltd. outstanding dues of Rs 95.76 lakh. Earlier, Manthan Broadband Services Pvt. Ltd. had filed a petition before the TDSAT seeking recovery of placement charges amounting to Rs. 95,76,798/-along with interest at the rate of 24% per annum from the INX News Pvt. Ltd. for the placement of its channel namely “INX News” across the areas covered by the headend of the petitioner. Manthan Broadband Services Pvt. Ltd. had alleged in the petition that Fifth Avenue Media of Mumbai acting on behalf of INX News had agreed to pay a sum of Rs 1.15 crore for the placement of the channel for the period 01.06.2011 to 31.05.2012. It was further alleged that though the channel was placed as per the agreement, INX News made a payment of Rs 31.07 lakh only and has not made any further payment to Manthan Broadband Services Pvt. Ltd. After perusal of relevant documents and hearing both the parties, TDSAT observed, “we are convinced that Respondent No. 2 (Fifth Avenue Media) was acting on behalf of Respondent No.1 (INX News Pvt. Ltd.) and there was an agreement between the parties for placement of the channel of Respondent No. 1 on the network of the petitioner.”  The Tribunal further noted that INX News Pvt. Ltd. had to pay a sum of Rs. 1.15 crores for the placement of the channel for the period 01.06.2011 to 31.05.2012, but it made a payment of Rs. 31,07,702/- only and has not made any further payment to Manthan Broadband Services Pvt. Ltd. While allowing the petition TDSAT directed INX News Pvt. Ltd. to pay outstanding dues to Manthan Broadband Services Pvt. Ltd. after deducting TDS, if any, deposited by it with the income tax authorities for which it will provide the TDS certificates. [Manthan Broadband Services Pvt. Ltd. v. INX News Pvt. Ltd., 2015 SCC OnLine TDSAT 1357, decided on September 9, 2015]