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Tamizhaa Cable Network v/s Sun Distribution Services

    PETITION Nos.31(C) OF 2010, 140 (C) of 2010 (With M.A. No. 105 of 2010)

    Decided On, 06 January 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. Navin Chawla, Mr. Sharath Sampath, Advocates. For Respondent: Mr. Maninder Singh, Senior Advocate, Mrs. Narayani K. Sibal, Ms. Disha Mohanty, Advocates.



Judgment Text

P.K.Rastogi


The petitioner is operating its business as a cable operator in the area of Kanchi-Puram. The respondent is Broadcaster of various channels. The petitioner had entered into a subscription agreement with the respondent effective from September 2009. By way of present petition the petitioner is seeking redressal from this Tribunal against the arbitrary and unlawful denial of permission/non-reply by the respondent to the request of the petitioner to add new cable operators who are interested in receiving signals from the petitioner.


2. The main issue to be considered in this case is whether the petitioner can increase his area of operation under the existing agreement between the petitioner and the respondent. The respondent?s view is that if the petitioner wants to enhance its area of operation in new areas other than the areas as mentioned in the agreement it will have to apply afresh to the respondent with full details as required under the Interconnect Regulations.


3. Before filing this petition, the petitioner had filed another petition being Petition No. 167(c) of 2009 wherein it had prayed for a direction from the Tribunal for reactivation of signals which had been deactivated on the ground that the technology of the decoder boxes had changed. This Tribunal had passed an order dated 12.08.2009, which reads as under :


?Counsel for the respondent submits that let the petitioner approach the respondent for issue of new decoders and settle the acocunts. She assures that new decoders will be issued to the petitioner on petitioner paying the security charges for the same. According to her, the amount presently due from the petitioner is Rs.42,836/-. The decoders will be supplied immediately to the petitioner on the petitioner making the payment. Besides this, let the petitioner also settle the accounts so that the matter can be finished once for all.


Counsel for the petitioner requests that a copy of the agreement be supplied to the petitioner. Counsel for the respondent agrees to do so.


The petition stands disposed of.?


4. In accordance with orders of this Tribunal, the decoder boxes were issued to the petitioner by the respondent on 31.08.2009. The parties further entered into an agreement on the same date. Before entering into fresh agreement there was a meeting between the petitioner and the respondent at the office of the respondent on the same date. According to the petitioner the copy of the agreement was not given to it. The petitioner signed the acknowledgment letter also under the assurance of the respondent that a copy of the agreement would be supplied, however, did not give the same to the respondent and kept back the original only to be given once a copy of agreement is supplied. The meeting was held on 31.08.2009 at the respondent?s office in Chennai and minutes of the said meeting was also drawn.


5. The Minutes of Meeting specifically mentioned that both the parties agreed that the total connectivity, area of operations and addresses of the households in his service area will be produced. Apart from this, the certain details, about entertainment tax registration details, link operators details, and entertainment tax payment receipts etc. were also be supplied to the respondent on 03.09.2009. According to the petitioner, on 02.09.2010 he has sent the details of total connectivity, areas of operations and addresses of households on 02.09.2010. It further informed the respondent that it did not have any link operators and as and when the petitioner would provide its signals to such operators, intimation would be given to the respondent. The petitioner further mentioned that there was no entertainment tax for cable TV services in the state of Tamil Nadu and the petitioner was below the slab for service tax i.e. 3 lakhs hence these document although requested by the respondent were not supplied by the petitioner as the petitioner could not have supplied the same.


6. The petitioner had further requested to supply the copy of the agreement to the petitioner on different dates i.e. on 08.12.2009, 17.12.2009, 25.01.2010 and 01.2.2010. But the copy of the agreement was not supplied to the petitioner. The petitioner vide its letter dated 06.11.2009 also requested to provide link to the operators in Kanchipuram. Again by a letter dated 08.12.2009 the petitioner requested that he should be permitted to provide link to the operators in the Kanchipuram and promised to provide all the details of the operator connected in time and enhance the subscription points. In another letter dated 17.12.2009 the petitioner gave a list of operators and their connectivity who were requesting the petitioner to provide the link, containing names of 10 link operators alongwith their individual connectivity with total connectivity being 3400 put together. But no response was received by the petitioner from the respondent. However, the respondent disconnected the signals of the petitioner on 23.01.2010. No notice under clause 4.1 or a public notice under clause 4.3 of the interconnect regulation was issued to the petitioner.


7. The petitioner objected for the disconnection to the respondent vide its letter dated 23.01.2010 itself. The respondent did not reply to the same. The petitioner further sent Demand Drafts to the tune of Rs. 85,400/- as subscription charges for the December 2009 and January 2010 as also advance payment of Rs. 15,400/- for the month February 2010 which included the increased connectivity as the petitioner was to start supply of signals to the link operators from February 2010. Vide its letter dated 25.01.2010 the petitioner informed the respondent that due to delay in providing signals to the petitioner, it lost one of the cable operators who was to take signals from the petitioner. As a result, in the month of December only nine cable operators having a total connectivity of 3050 subscribers, were willing instead of ten cable operators with 3400 subscribers.


8. The petitioner again sent a letter dated 1.2.2010 requesting the respondent to consider its request for providing signals to 18 cable operators having a connectivity of around 4500 subscribers. The names of these cable operators alongwith their area of operation was also mentioned in the letter.


9. As the petitioner did not receive any response from the respondent, it filed this Petition No. 31 (c) of 2010 in this Tribunal on 11.2.2010 requesting, interalia, for the following reliefs :


1. ?Direct the respondent to allow the petitioner to add the cable operators as per the letters dated 25.01.2010 and 01.02.2010 to its network and supply signals of the respondent to them.


2. Direct the respondent to increase the subscription amount payable by the petitioner to the respondent by taking into consideration the proposed new link operators to the network of the petitioner on the basis of the connectivity as shown in the letter dated 25.01.2010 and 01.02.2010.


3. Restrain the respondent from in any manner disturbing/ deactivating the signals supplied to the petitioner without complying with the provisions of the interconnect regulations.


4. Direct the respondent to supply a duly signed copy of the agreement dated 31.08.2009


5. Direct the respondent to issue invoices and receipts from September 2009 till date as also future invoices and receipts for payments by the petitioner.?


10. During the pendency of this petition the respondent issued a public notice dated 27.04.2010 for disconnecting the signals of the petitioner for piracy of the signals by the petitioner. The petitioner filed Petition No. 140(c) of 2010 on 14.05.2010 against the said public notice and requested this Tribunal to stay the operation of the public notice. This Tribunal directed that public notice issued by the respondent will not be given effect to subject to the condition that the petitioner confine to its area of operations as per agreement dated 31.08.2009.


11. The respondent in its reply contended that in the meeting dated 31.08.2009, the Petitioner had signed an agreement for subscriber base of 500 for SUN TV and 400 for KTV bouquet and also undertook to give details of the Cable Operators linked to it as well as copies of agreements entered by it with the link operators, in a span of 3 days. It is pointed out that within 2 days, the Petitioner did a complete turn around and stated that it had no Link Operators. The Petitioner was constantly changing its stand. Vide a letter dated 17.12.2009, the Petitioner gave a list of 10 purported operators it might connect in the future. Again, vide letter dated 25.01.2010, the Petitioner gave a list of 9 operators. Thereafter, vide letter dated 1.2.2010, the petitioner gave a list of 18 Cable Operators without any details regarding subscriber base.


12. The respondent further contended that in case the Petitioner wanted to add Cable Operators/subscribers, it was required to give copies of the agreements with such Cable Operators and details of subscribers, area of operation, etc. to enable the Respondent to verify the correctness of the proposed changes before agreeing to it. In the absence of such details, the Respondent would not have any method of verifying the statement regarding addition/deletion of Cable Operators or subscriber base, which was not in conformity with the scheme of the Interconnection Regulations.


13. The Petitioner did not disclose whether the Link Operators sought to be added by it were new Cable operators or those who were leaving other Service Providers and joining the Petitioner. Clause 3.2 of the Interconnection Regulations as amended by the Notification No. 6-4/2006-B&CS dated 4th September, 2006 provide that any distributors of TV channels intending to get signal feed from any MSO other than the presently affiliated MSO, or from any agent or intermediary of the Broadcaster, should produce along with their request evidence to show that they had no outstanding dues to the presently affiliated MSO, or from any agent or intermediary of the Broadcaster. In the present case, neither the Petitioner nor any of the purported Cable Operators wishing to join it had submitted such proof to the Respondent.


14. The respondent further submitted that the Petitioner had admittedly received the copy of the subscriber agreement dated 31.8.2009 and in fact signed a receipt to the said effect. The Petitioner with a view to prejudice this Hon?ble Tribunal was now contending that a receipt was obtained from him by the Respondent without supplying a copy of the Subscriber Agreement. The said contention of the Petitioner was ex-facie false and incorrect and contrary to the records.


15. Infact, the petitioner made excess payment of Rs.30,000/- and 55,400/- for the month of February 2010 alongwith their letter dated 25.01.2010. The Respondent sent a reply on 02.03.2010 and returned the said two DD?s along with the said letter and asked to send a correct monthly payment. The Petitioner was liable to pay the outstanding due amount of Rs.24,423/- for January 2010 and Feb?10.


16. The respondent further contended that the Respondent entered into a subscription agreement with the petitioner on 31.08.2009 for SUN TV, KTV, Sun Music, Sun News, Adithya and Chutti channels for the period of seven months from 31.08.2009 to 31.03.2010 for the areas of Pallavar Medu and Pilaiar Palayam in Kanjipuram town and the copy of the said agreement was handed over to the petitioner on the same day.


17. The respondent admitted that letters written by the petitioner on 06.11.2009, 8.12.2009, 17.12.2009 and 25.01.2010 but contents of said letters were denied. Regarding non-receipt of agreement copy by the petitioner mentioned in the abovementioned letter, the respondent sent one more copy of the agreement, invoices and statement of accounts to the petitioner vide its reply letter dated 02.03.2010.


18. It was further stated that till date the Petitioner did not give any correct and authenticated details of connectivity and areas of operation and no objection certificates obtained from the existing MSO?s and agents of Broadcasters, as per TRAI Regulations. The petitioner did not discuss with the respondent regarding the extension of areas and unilaterally arrived at the connectivity which was not acceptable to the respondent without independent verification. The exact connectivity has to be decided between the parties only after discussion and through a joint survey if necessary.


19. The main issues in these two petitions are :


a. Supply of signed copy of the agreement dated 31.08.2009 to the petitioner by the respondent.


b. Issue of invoices and receipt of payment by the petitioner


c. Permission of extension of area of operation by the petitioner beyond the area mentioned in the agreement.


d. Piracy of signals by the petitioner and threat of disconnection.


20. While analyzing the contention of both the parties, we would like to place on record that during the pendency of this petition, efforts were made by the parties for settlement through negotiations but no settlement could be arrived at. We had directed the parties to undertake the joint survey. Although a joint survey was done but dispute arose between the parties about the areas to be surveyed. The respondent wanted to have survey of the areas Pallavar Medu and Pillayar Palayam only as per the area of operations of the agreement but the petitioner wanted that the joint survey for the area under the agreement as well as areas under alleged piracy. According to the respondent the petitioner switched off the signals for the area outside the area of operation under agreement and there were only 120 subscribers in the area. The petitioner denied the same.


21. The petitioner sought relief for supply of copy of the agreement between the parties and invoices and accounts statement. The respondent?s contention was that the copy of the agreement was handed over to the petitioner within same day and acknowledgment of receipt of the copy of the agreement was also signed by the petitioner. In the previous Petition No. 167(c) of 2009 the petitioner had requested for supply of the copy of the agreement to the petitioner and this Tribunal while disposing of the previous petition had recorded that the counsel for the respondent agrees to do so.


22. The new agreement was signed on 31.08.2009. On the minutes of the meeting held on 31.08.2009 at Chennai, the petitioner undertook to produce all the documents as mentioned below :


1. Details of total connectivity, area of operations and addresses of the households in his service areas.


2. Copies of the entertainment tax registration, certificate and service tax registration certificate.


3. Link operator?s details and copies of the agreements entered with his link operators.


4. Copies of the entertainment tax payment receipts and service tax payment receipts.


The petitioner wrote a letter to the respondent on 06.11.2010 wherein it specifically mentioned that till date he did not receive the copy of subscription agreement No. 1173 signed on 31.08.2009. Further he did not receive the invoices also. The relevant portion of this letter is reproduced below:


?I kindly bring to your notice that till date I have not received the copy of the subscription agreement no. 1173 which I had signed on 31.08.2009. I also kindly bring to your notice that till date I had not received any invoices.


So I request you to send the copy of the agreement and the invoices so as to enable me to make the payments in time.?


23. On 08.12.2009 again the petitioner wrote to the respondent that he did not receive the subscription agreement no. 1173 till date and did not receive the invoices also. The relevant portion mentioned in the letter dated 8.12.2009 is as below :


?I kindly bring to your notice that till date I have not received the copy of the subscription agreement no. 1173 which I had signed on 31.08.2009. I also kindly bring to your notice that till date I had not received any invoices.


So I request you to send the copy of the agreement and the invoices so as to enable me to make the payments in time. I also request you to issue me a receipt for the payment which I had made on November 6, 2009 as per the details below.?


24. On December 17, 2009 also while requesting the respondent to permit him to provide the link to certain operators again brought to the notice of respondent that he had not received the copy of the agreement No. 1173 and invoices.


On 25.01.2010 the petitioner wrote to the respondent about the deactivation of his signals. In the same letter he again mentioned non receipt of invoices as well as subscription agreement. The relevant portion of the said letter reads as below :


?I kindly bring to your notice that till date I have not received the copy of the subscription agreement no. 1173 which I had signed on 31.08.2009. I also kindly bring to your notice that till date I had not received any invoices. As I had not received the invoices, I request you to send me a statement of accounts as on January 2010.


So I request you to send the copy of the agreement, statement of accounts and the invoices so as to enable me to make the payments in time. I also request you to issue me a receipt for the payment which I had made earlier as per the details below.?


25. On February 1, 2010 the petitioner wrote to the respondent while giving the information about the request of 18 cable operators who want to join the Network of the petitioner to supply the copy of the agreement, Statement of Account and invoices so as to enable him to make the payment in time. It also requested for issue a receipt for the payment which it had made earlier.


26. The respondent has admitted the receipt of these letters. However, it sent a reply to the letter of the petitioner only on 01.03.2010 for the first time after this petition was filed in this Tribunal on 11.02.2010. No explanation thereto has been given. A copy of the subscription agreement dated 31.08.2009, duplicate copy of the invoices and Statement of Account was also sent to the petitioner and alongwith the said letter.


Although the petitioner continued to remind the respondent by various correspondences for supply of the copy of the agreement alongwith invoices, the respondent did not respond to even one letter. Had it supplied the copy of the agreement to the petitioner, the respondent would have replied that the agreement copy was already given and another copy would have been sent for reference. The petitioner would not have filed this petition and sought relief for the same. It is also of relevance that original copy of the acknowledgment letter for the agreement was still with the petitioner. The petitioner has claimed in its affidavit that the original copy of the acknowledgment letter was not handed over to the respondent as the agreement copy was not handed over to it by the respondent. Although, ordinarily we would have given some value to the said acknowledgment but having regard to the conduct of the respondent, we intend to give due credence to the contention of the petitioner.


27. It seems very clear that the respondent did not give a copy of the agreement signed on 31.08.2009 to the petitioner. Infact the respondent should have taken a special care specifically considering the fact that this Tribunal in its order dated 12.08.2009 had specifically asked for the supply of agreement and respondent through its counsel had agreed to do so the same.


The clause 4A(4) of The Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004 as amended from time to time makes it mandatory for the broadcaster to handover a copy of the signed interconnection agreement to its distributor and obtains an acknowledgment. We are producing the clause 4A below:


?4A. Interconnection Agreements to be in writing.


4A.1 It shall be mandatory for the broadcasters of pay channels and distributors of TV channels to reduce the terms and conditions of all their interconnection agreements to writing.


4A.2 No broadcaster of pay channels or distributor of TV channels, such as multi system operator or headend in the sky operator, shall make available signals of TV channels to any distributor of TV channels without entering into a written interconnection agreement.


4A.3 Nothing contained in regulations 4A.1 or 4A.2 shall apply to any supply of signals or continuance of supply of signals of TV channels by a broadcaster or distributor of TV channels, such as multi system operator or headend in the sky operator, in pursuance of or in compliance with any order or direction or judgment of any court or tribunal, including any order or direction or judgment of any court or tribunal on any proceeding pending before such court or tribunal.


4A.4 It shall be the responsibility of every broadcaster of pay channels who enters into an interconnection agreement with a distributor of TV channels to hand over a copy of signed interconnection agreement to such distributor of TV channels and obtain an acknowledgement in this regard within a period of 15 days from the date of execution of the agreement and, similarly, it shall be the responsibility of every multi system operator or headend in the sky operator, as the case may be, who enters into an interconnection agreement with a cable operator to hand over a copy of signed interconnection agreement to such cable operator and obtain an acknowledgement in this regard within a period of 15 days from the date of execution of the agreement.?.


28. We are of the opinion that the broadcaster is guilty of not handing over written agreement entered into between the petitioner and the respondent. This is blatant violation of the relevant Regulation. Such practice of the broadcaster/MSO?s for non-supplying of the agreement to the MSO/Cable operator required to be curbed with heavy hand and violators should be punished suitably to avoid unnecessary litigation and wastage of time and resources of courts and the parties.


29. Regarding the expansion of the area of operation by the petitioner beyond the area mentioned in the agreement, the learned advocate for the petitioner contended that the petitioner has all the rights to expand its area of operation under the regulations. While the learned counsel for the respondent contended that under the present regulation, the regulation does not permit the petitioner to extend its area of operation under the existing agreement. If petitioner wants to operate in new area, it will have to execute another agreement with the respondent.


30. The learned counsel, Mr. Navin Chawla quoted Regulation 3.1 where the broadcaster is prohibited to have any exclusive contract with any distributor of TV channels. This reads as under :


?3.1 No broadcaster of TV channels shall engage in any practice or activity or enter into any understanding or arrangement, including exclusive contracts with any distributor of TV channels that prevents any other distributor of TV channels from obtaining such TV channels for distribution.?


Similarly, every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels as per clause 3.2 of the regulation. Therefore, the right of expansion is in terms of clause 3.2 of the Interconnection Regulation. When the petitioner requested the respondent for providing signals to it for re-transmission of signals to the additional cable operator, the respondent was bound to do so, subject to fulfillment of requirement as provided under the regulations. The petitioner already supplied the information required under the regulation by its letter dated 17.12.2009, it gave the list of 10 operators alongwith their connectivity, total connections being 3400. Again on Ist February 2010, supplied the list of 18 operators alongwith their area of operations with total connectivity of 4800.


31. The learned counsel also quoted clause 10 of the Regulation which provides for variation of subscriber base during the validity of the agreement. He specifically quoted clause 10.2 as applicable for the Interconnect agreement between MSO and the Broadcaster. It reads as under :


?Between Multi System Operator and Broadcaster


10.2 In non-addressable systems, the subscriber base agreed upon by the parties at the time of execution of the interconnection agreement between a multi system operator and a broadcaster shall remain fixed during the course of the agreement except in exceptional circumstances that warrant an increase or decrease in the subscriber base. In such an eventuality, it is for the service provider seeking a change in the subscriber base to provide reasons and accompanying evidence including local survey for the proposed change.



Provided that this sub-clause shall not apply to changes in the subscriber base of a multi system operator on account of any cable operator joining or leaving the multi system operator.



Provided further that any change in the subscriber base of a multi system operator, which is the basis of payment to a broadcaster, on account of any cable operator joining or leaving the network of the multi system operator shall be equal to the subscriber base of the cable operator, joining or leaving the network.?


According to the learned counsel, the 2nd proviso of above clause covers the request made by the petitioner for addition of the cable operators during the currency of the agreement.


32. The learned counsel further contended that an MSO can expand his area of operation subject to payment made to the broadcaster for the signals, the broadcaster itself should be interested in expanding its business and if MSO add more cable operator it should be in the interest of both operator as well as broadcaster. He further emphasized his argument based on the clause 12.1 where there is a provision of monthly subscriber base statement. According to this clause ?in non-addressable system MSO shall furnish updated list of cable operators alongwith their subscriber base to the broadcaster on a monthly basis.? The need of such clause arose because of right of the petitioner for adding or deleting the cable operators under the agreement in force.


33. Mr. Maninder Singh, the learned senior counsel for the respondent urged that the MSO does not have right under the Regulation to extend his area of operation during the currency of agreement in force. According to him Regulation 3.1 is a restriction against the broadcaster but does not give any right to the distributor. He has brought to our notice para 10 of the explanatory memorandum of the Interconnect Regulation 2006, which reads as under :


?10. The term subscriber base is rather vague in the absence of addressability, as it is impossible to know the real number of subscribers being served by a service provider in non-CAS areas. Thus, it is not possible to have agreements based on the actual subscriber base. Hence, the negotiations for fixation of subscriber base for an interconnect agreement depend crucially on area proposed to be served by the distributor of TV channels.?


34. The learned counsel contended that the petitioner did not give full information essentially required to consider the request of the petitioner under clause 3.2 of the regulation which interalia include names, addresses, area of operation, their subscriber base and registration by postal authorities of the cable operators likely to join the M.S.O. If the petitioner supply all the information as required, it will have to enter into separate agreement for additional area.


35. While concluding his arguments Mr. Maninder Singh, the learned senior counsel made a statement that the respondent is ready to sign the new agreement for 120 subscriber as determined under the joint survey. It will not proceed with the piracy notice in relation to this renewal. The respondent will not disconnect till the time they negotiate and settle although the present agreement is over by 31.03.2010. Regarding additional area, the petitioner should apply afresh with all the details and they would negotiate the fresh agreement.


36. The crucial issue to be decided in this case is whether the petitioner has the right to vary the subscriber base during the validity of the agreement beyond the area of operation mentioned in the agreement. The relevant provision in our opinion is Clause 10.2 of The Telecommunication (Broadcasting and Cable Services) (Third Amendment) Interconnection Regulation 2006.


The Second proviso to clause 10.2 is directly related to the issue under consideration. The proviso permits the variation of subscriber base on account of any cable operator joining or leaving the network of the multi system operator. It is for the service provider seeking a change in the subscriber base to provide reasons for change in the subscriber base. It does not say that the variation should be limited within the area of operation mentioned in the agreement. However, we will have to interpret the provision after considering the regulation and its explanatory memorandum as a whole.


37. As pointed out by Mr. Maninder Singh, the learned senior advocate of the respondent contended that para 10 of the explanatory memorandum to the regulation gives the answer to the issue. In non-CAS areas it is not possible to know the real number of subscribers being served. The negotiations for fixation of subscriber base for an interconnect agreement depend crucially on area proposed to be served by the distributor.


38. Although not directly related to the issue of expansion of area during the validity of the agreement but clause 11 of the regulation clearly indicate that the area in which multi system operator is serving is always important factor for any variation in subscriber base. Regulation 11.2 thus reads as under :


?Between Multi System Operator and Broadcaster


11.2 In non-addressable systems, negotiations on revision of subscriber base at the time of renewal of interconnection agreement between a multi system operator and a broadcaster shall take into account the changes in subscriber base of the multi system operator over the past three years, as well as the changes in subscriber base of other multi system operators operating in the area in which the multi system operator is operating and its adjoining areas for the current period.?


39. However, Para 11 of the explanatory memorandum deals with the issues of expansion of area during the validity of the existing agreement. The explanation clarifies that it is possible to ne

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gotiate the expansion of area of operation by MSO by negotiating the subscriber base. The para 11 of the explanatory memorandum The Telecommunication (Broadcasting and Cable Services) (Third Amendment) Interconnection Regulation 2006, is produced below : ?11. The primary reason for disputes arising on account of expansion of area is that without addressability, it is impossible to know the actual subscriber base and area is the basis on which a subscriber base is arrived at. Any change in area of operation has direct bearing on the negotiations with respect to subscriber base. However, the expansion of area by a multi system operator on account of giving feed to a cable operator operating outside the existing area of operation of the multi system operator can be taken care of by negotiations based on the Subscriber Line Report (SLR). Similarly, the expansion of area of operation by a cable operator will also get reflected through the Subscriber Line Report (SLR). ? We are of the opinion that had there been no possibility of expanding the area, there was no need of para 11 in the memorandum. 40. By reading clause 10.2 of The Telecommunication (Broadcasting and Cable Services) (Third Amendment) Interconnection Regulation, 2006, para 10 and 11 of the explanatory memorandum together ; we are of the opinion that the area of operation under the agreement is relevant and most critical but the clause 10.2 does not bar the variation of subscriber base on account of cable operator joining or leaving the MSO. However, the MSO does not have right to expand its area on its own without negotiating with the broadcaster and without taking recourse to clause 3.2 of the Regulations. Therefore, we hold that the petitioner has not violated the provision for applying for addition of cable operators outside the area of operation of the existing agreement and the respondent was bound to consider the same within reasonable time but not exceeding 60 days. There can be new agreement for additional area or it can be modification of existing agreement. Expansion of area, therefore, being subject to negotiation only, it may be permitted by reason of novation of contract or entering into a separate agreement. 41. We have not discussed the issue of piracy and disconnection of signals to the petitioner in view of the statement of learned counsel of the respondent that the respondent will not pursue the issue of piracy and will not disconnect the signals. 42. Before we conclude it is relevant to know that the agreement entered between the petitioner and the respondent expired on 31.03.2010 during the pendency of this case in this Tribunal. 43. Therefore, we allow this petition with above observation. However, in view of the fact that the agreement has already expired, we direct that the petitioner and the respondent will negotiate again. The petitioner will supply all relevant informations as required under the regulations including names of link operators alongwith their addresses, likely subscriber base and their area of operation. The new agreement will be finalized within a period of six weeks. The signals of broadcaster will continue to be received by the petitioner as per the terms and conditions of the existing agreement for a period of 3 months or date of finalization of the new agreement whichever is earlier. 44. In the abovementioned circumstances the respondent will pay Rs. Two Lakhs as costs.
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