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M/s. Disco Cable v/s M/s. SUN TV Network and Sun Distribution Service (Channel Plus)

    Petition No. 172(C) of 2010

    Decided On, 29 March 2011

    At, Telecom Disputes Settlement Appellate Tribunal New Delhi

    By, THE HONOURABLE MR. JUSTICE S.B. SINHA
    By, CHAIRPERSON
    By, THE HONOURABLE MR. G.D. GAIHA
    By, MEMBER & THE HONOURABLE MR. P.K. RASTOGI
    By, MEMBER

    For Petitioner: Mr. R. Krishnamurthy, Mr. P. Emmanuel Prakasam, Advocates. For Respondent: Mrs. N.K. Sibal, Ms. Gauri Setia, Advocates. Interpreter: Mr. Sharath Sampath, Advocate.



Judgment Text

P.K. Rastogi, Member


The present petition has been filed for a direction to the respondent herein to issue decoders and SIM Cards for receiving the Respondent Signals of SUN TV, KTV, Sun News, Sun Music and Aditya for onward transmission to the subscribers.


2. According to the petitioner, it is one of the Licenced Cable TV operators in the Valliyur area of Tirnelveli District, Tamilnadu (State) and running the cable TV operations nearly for the past 25 years. The Petitioner was the MSO of the Valliyur Region and transmitting signals of various Channels including the Sun TV Network Package.


Due to some misunderstanding, arbitrary behavior of the existing MSO of Valliyur Region, he could not be able to run the cable TV Network Profession and his Signals were disconnected. The Petitioner curtailed the business relationship with the existing MSO of Valliyur and he wanted to have his own business.


3. The Petitioner submitted that it made Representation to the Respondent for the supply of decoders and SIM cards of the Respondent Cable TV Network such as Sun TV, KTV, Sun News, Aditya, Chutti T.V. Channels respectively on dates i.e., 08.01.2008, 16.6.2009 and 25.10.2009. But the Respondent did not consider his request and till date has not provided the decoders and SIM Card to the Petitioner.


4. The Petitioner has also made the payment to the Respondent Rs.9000/- on 05.03.2010 for obtaining decoders and signals of Respondent Network Package.


5. In these facts and circumstances the petitioner therefore prayed for direction to the respondent to issue decoders and SIM Cards for receiving Signals of SUN TV, KTV, SUN NEWS, ADITYA and CHUTTI for onward transmission to the subscribers of the petitioner.


6. In support of his request for getting signals, the petitioner submitted: -


(a) Copy of the Registration Certificate;


(b) Copies of the representations made to the respondent on 8.1.2008, 16.06.2009 and 25.10.2009.


(c) Copy of the D.D dated 5.3.2010 in favour of respondent.


7. The Respondent on the other hand submitted that the petition was not maintainable and liable to be dismissed at the outset itself. The petitioner did not make any request to the respondent for Decoders and SIM Cards as alleged by it. The petitioner neither annexed letters dated 08.01.2008, 16.06.2009 and 25.10.2009 nor placed on record the proof of receipt of the same by the respondent.


8. It was further submitted by the respondent that the alleged request by the petitioner was not a valid request. The alleged letters did not contain the mandatory information as prescribed under Clause 9.1. and 9.2 of the Telecommunication (Broadcasting and Cable Services) Interconnection (Third Amendment) Regulation, 2006. In the absence of necessary information and details, the respondent was not in a position to process any request.


9. According to the submissions of the respondent the petitioner on previous occasions had indulged in piracy of signals of the respondent as well as the other broadcasters such as Star TV Network. The petitioner had been pirating the signals of the respondent given to nearby MSO. M/s. AERO CABLE Network. Harassed by said antics of the petitioner, said M/s. AERO CABLE Network complained to the TRAI vide letter dated 3.03.2008. AERO CABLE Network, through its proprietor Mr. Mohammed Asan Farook also filed a police complaint against the petitioner. As the police failed to take any action against the petitioner said AERO CABLE Network was constrained to approach the Hon?ble High Court under Article 226 for issuance of writ of mandamus to the concerned authorities. The Hon?ble High Court found merit in the case against the present petitioner and issued directions to the concerned police station to do the needful in the matter.


For the same reason Star TV Network through its Distributor for the area of Tiruneveli, Mr. V. Vanniaperumal was compelled to file a complaint to the Superintendent of Police of the area. An FIR dated 10.01.2009 was thereafter filed against the petitioner, under Sections-420, 120(b IPC), 8(a) & 10r/w15 of T.N. Exhibition of film on TV Screen through Cable TV Network Act 1984 and 16 of Cable TV Network Act, 1995 for piracy of signals.


Mr. T.P. Muthukumar, Assistant Manager at the respondent company?s Distribution Division too was compelled to file a criminal complaint against the petitioner for its illegal transmission of signals. Pursuant to said complaint the investigation was conducted wherein the petitioner/accused confessed to the crime committed by him which lead to recovery of items.


10. The respondent further submitted that the petitioner in the year 2004 was running his cable operator business and had taken the decoder boxes of the respondent?s KTv Channel. The petitioner defaulted in paying its dues to the respondent and upon continuous reminders of the same the petitioner in order to avoid paying the respondent fees for using the same, returned the decoder boxes to the respondent and thereafter started piracy of the respondent?s signals though DTH boxes.


11. The petitioner also has a history of defaulting in making payments and has an outstanding of an amount of Rs. 3,55,550/- to one M/s. Arasu Cable TV Corporation, a state government corporation.


12. In the aforementioned circumstances and in view of the antics and conduct of the petitioner, the respondent was not desirous of doing business with the petitioner.


13. Rebutting the contention of the respondent, the petitioner submitted the false case was filed against the petitioner by his rival M/s. Aero Cable Network relating to piracy of signals which was now pending before the learned Judicial Magistrate Court No. 1, Tirunelveli, Tirunelveli District, Tamilnadu State, where in till date no final report was filed and the Hon?ble said court have not found the petitioner guilty.


In the said case one Jayaprakash also ranked as accused no. 2. The same Jayaprakash approached this Tribunal for the restoration of his disconnected signals by the respondent in Petition No. 175(C) of 2010. On 13.08.2010, the respondent restored the signals to the said accused Jayaprakash. Therefore, the respondent should not show any discrimination to the petitioner.


14. The petitioner denied that any case was registered against the petitioner on the basis of the complaint of either by Mohamed Hassan Farroq, or by V. Vannia Perumal.


15. The petitioner denied that it defaulted in payment pertaining to KTV channels. Again the petitioner denied that he had ever indulged in piracy of the respondent signals through DTH boxes.


16. The petitioner clarified that it has obtained the signals of Arasu Cable TV Corporation on 20.09.2010, for his the common Cable TV Network under the name and style Annail Therasa Cable TV Network. Annai Therasa Cable TV Network is a registered firm and running a cable TV Network under its banner and it is belonging to the group of persons including, the petitioner, Kumaraswamy, Jayaprakash, Chirsthurajan, Ashok, Vanamamalai, Kennedy and Ganesan. As far as the petitioner himself is concerned he has no dues to the Arasu Cable TV Corporation. The said partners of the petitioner may have the dues. The petitioner was running Cable TV in the name of Disco Cable with 211 subscribers.


17. The petitioner further submitted that it also made a representation on 06.05.2009 in accordance with clause 9.1 and 9.2 of the Telecommunication (Broadcasting and Cable Services) inter connection (Third Amendment) Regulation, 2006.


18. In view of the rival averment of the parties, following issues were framed by this Tribunal :


(a) ?Whether the petitioner is entitled to supply of signals of Sun TV, KTV, Sun News, Aditya and Chutti in terms of the Regulations 3.2 of the Telecommunication (Broadcasting & Cable Services) Interconnection Regulations, 2004 as amended from time to time?


(b) In the event the answer to the said question is rendered in affirmative, whether the petitioner would be entitled to supply of signals on reasonable terms and on non-discriminatory basis?


(c) Whether the request made by the petitioner to the respondent is valid and conforms to the requirement of the said Regulations?


(d) To what relief, if any, the petitioner is entitled to??


Analysis


19. This petition has been filed by the petitioner basically to seek signals from the respondent under the Regulations 3.2 and 9.1 of the Telecommunication (Broadcasting & Cable Services) Interconnection Regulations, 2004 as amended from time to time. The relevant portion of the 3.2 reads as under :


?3.2 Every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator; Multi system operators shall also on request re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators.


Provided that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment.


Provided further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request.?


Regulation 9.1 reads as under :


?First agreement between Multi System Operator and Cable Operator


?9.1 In non-addressable systems, while executing an interconnection agreement for the first time between a multi system operator and a cable operator, the parties to the agreement shall take into account the subscriber base of the cable operator on the basis of the Subscriber Line Report (SLR) where such SLR exists. Where such SLR does not exist, this shall be negotiated on the basis of the evidence provided by the two parties on the subscriber base, including the subscriber base of similarly placed cable operators and local survey.


Explanation


The Subscriber Line Report (SLR) is only an indicative basis for arriving at the subscriber base and the subscriber base as mutually agreed by the two parties could be more than or less than the number indicated by the SLR.?


20. According to the respondent the petitioner has failed to show the postal registration in the name of the petitioner. The petitioner has enclosed a copy of the registration certificate which reads as under :


?Head Post Office Palyankottai H.O.


Registration Certificate


Number 53


Shri A Udhya Soundrajan


a resident of 235 Main Road Valliioor and registered as a Cable Operator (Individual) for running Cable Television Networks at the following address


Vellioor


In the citytown Vallioor for a period of twelve months with effect from 19.01.2011 to 18.01.2011 and his registration number is 53.?


It is seen from the registration certificate that the certificate has been issued in the name of Mr. Shri A Udhya Soundrajan, and not in the name of Disco Cable, the petitioner. On the basis of it, we can say that the valid request has not been made to the respondent as the basic document of registration is not available.


21. Secondly, the respondent has denied the receipt of letters dated 08.01.2008, 16.06.2009, 21.10.2009. The petitioner has failed to show the receipt of these letter to the respondent. Even if these letters have been sent to the respondent, a perusal of these letters does not show that petitioner has supplied full information as required under the Regulation 9.1 of the Interconnect Regulations.


22. The respondent further pointed out that the petitioner in the year 2004 was running its cable operator business and had taken IRD boxes of KTV channels. The petitioner has defaulted in paying its dues to the respondent. The petitioner denied the allegations we find that the respondent has not produced any record to show the default of the petitioner in the year 2004. Therefore, this allegation of default on the part of the petitioner could not stand in the way of his seeking signals from the respondent.


23. The other objection of the respondent for supply of signals to the petitioner relates to the pendency of the criminal case against the petitioner for piracy of signals. We find from the records that the case is still

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pending and it is not yet proved that the petitioner was involved in the piracy. As pointed out by the petitioner, there was one more accused Mr. Jaiprakash in that particular criminal case and the said person was given signals by the respondent. We are of the view that the pendency of a case against the petitioner before the Judicial Magistrate?s Court should not come in the way for seeking signals from the respondent. Respondent was liable to supply the signals to the petitioner in non-discriminatory basis. 24. In view of the aforementioned observations, we are of the view that the petitioner is not a registered cable operator and not supplied the information as required under the regulations and he is not entitled to receive signals from the respondent. However, the petitioner will be free to approach the respondent again after fulfilling all the necessary requirements as per Regulations 3.2 and 9.1 of the Interconnect Regulations. The respondent is directed to invite the petitioner for discussion within 15 days of receipt of the information from the petitioner. The respondent may seek additional information as required under the regulations so as to enable it to supply signals on reasonable terms and on non-discriminatory basis. 25. Accordingly, this petition is disposed of with abovesaid directions. In the facts and circumstances of the case, the parties to bear their own cost.
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