ORDER
1. In this petition filed under Section 14 and Section 14A of Telecom Regulatory Authority of India Act, 1997 among other reliefs the Petitioner has prayed for reconnection of signals and a declaration that the subscription amount of Rs.10083894/- agreed to be paid under protest by the Petitioner in the subscription agreement signed by it with the respondent broadcaster on 30th April 2006 is invalid, null and void being contrary to Interconnect Regulations.
2. It is submitted in the petition that this amount of subscription was incorporated in the agreement solely because the Respondent broadcaster refused to sign the agreement unless the Petitioner agreed to include this amount as the subscription amount in the agreement which is mandatorily required to be signed under Inter-connect Agreement Regulations. It is contended on behalf of the Petitioners that this Tribunal in Petition No. 44(c) of 2004 in Star India Private Limited V.. Indusind Media and Communications Limited had held on 17th January 2006 that it is obligatory on the part of the signal receiver to enter into a subscription agreement with the signal provider without which the signal receiver could not demand the supply of signals. It is also contended that in the said order of this Tribunal, it was held that if the parties cannot agree on the terms of the agreement, the aggrieved party should sign the agreement under protest and thereafter approach this Tribunal for the redressal of its grievances. It is in this background that, though the petitioner very well knew that the amount of Rs.10083894/- per month plus service tax as monthly subscription for receiving the signals from the respondent broadcaster was highly exhorbitant and unreasonable, it still signed the agreement under protest, so that it could approach this Tribunal for redressal of its grievances.
3. In support of his contentions, it is further submitted on behalf of the Petitioner that in the earlier petition between the very same parties this Tribunal had noted that there was a written agreement signed between the parties in the year 2003 for a declared subscriber base of 2.78 lakhs and payment of Rs.83 lacs monthly. During the course of hearing of this petition, although there was material available to indicate that the subscription fee payable was pitched on the high side still because of the written agreement between the two parties, it was held that this matter could not be reopened and the petitioner was directed to pay subscription fee at the rate specified in the written agreement. However, this Tribunal had observed that the declared subscriber base for the years 2004 and 2005 would need to be determined taking into account parity with what was being charged by M/s Star from the other cable operators in the State of Kerala. The Tribunal had noted that as per National Readership Survey (NRS) there were about 15 lakhs cable TV homes in the state of Kerala in the year 2002. It was also noted that the petitioner had a subscriber universe of 5 to 6 lacs. It had been noted that the “other cable operators” in Kerala State were required to pay only Rs.27 lacs monthly for subscriber universe of about 9 lacs and a declared subscriber base of around one lac out of this universe had been accepted by M/s Star for the purpose of computing the monthly subscription fee. The Tribunal had come to the conclusion that the monthly subscription fee payable by M/s Asianet could not be pitched at Rs.83 lakhs per month in the absence of any written agreement for the years 2004 and 2005. Therefore, in spite of the time lag the figure of Rs.1.08 crores was much too high and, as per the Petitioner if properly computed as per principles enunciated in the order dated 3.3.2004 of this Tribunal, the monthly subscription fee payable would not exceed Rs.20 to 25 lakhs per month.
4. In the above background, this Tribunal had directed the Petitioner to enter into a subscription agreement for supply of signals beyond 1st May 2005, on or before 30th of April 2005. Obviously, bearing in mind the directions given by this Tribunal in Star India Private Limited V.. Indusind Media and Communications Limited (supra) the petitioner now complains that the Respondent realizing its dominant role in signing the agreement, and perceiving the consequences of not signing the agreement, has made an unreasonably high demand of Rs.1.08 crores so as to compel the Petitioner to pay this huge sum knowing very well that it would surely put it out of business. Therefore, the Petitioner prays that this Tribunal should by way of an interim order fix a reasonable sum as the interim subscription payable during the pendency of this petition so that the Petitioner could get the signals during the pendency of this petition.
5. The Respondent contended that only after considering the pros and cons of its commitment the Petitioner agreed to pay the above mentioned subscription amount in the agreement dated 30th April 2006 which prima-facie evidences terms agreed to between the parties. Therefore, there is no reason why this Tribunal should fix any amount lesser than the said agreed amount during the pendency of the petition. It is submitted if the Petitioner is not willing to pay the said agreed amount which prima-facie cannot be questioned, it should not insist on receiving Respondent’s signals nor should this Tribunal entertain its request for the grant of an interim order unless the Petitioner is willing to pay the agreed sum as per the agreement dated 30th April 2006.
6. As briefly indicated hereinabove, this dispute between the parties originated in the year 2004 before this Tribunal and in the first round of litigation this Tribunal made an interim order directing the Petitioner to pay a sum of Rs.55 lakhs as an interim subscription for the receipt of signals of the respondent broadcaster. The Petition was finally disposed off vide this Tribunal’s order of 3/3/2006. The Respondent Asianet filed an Execution Application for the said order. The interim orders on this E.A. directing Petitioner Star India, Respondent in EA, to continue giving signals on payment of Rs.55 lakhs by the Applicant Asianet was challenged by Star India before the Hon’ble High Court of Delhi. Hon’ble High Court of Delhi, while upholding the Tribunal’s order directed that signals will continue on payment of Rs.55 lakhs per month as interim subscription and further directed the Petitioner to furnish a bank guarantee for Rs.15 lakhs as well as a personal bond to be executed to protect the interest of the Respondent which order was to be current till the disposal of the Execution Application. The Tribunal was requested by the High Court to dispose of the EA preferably within one month, which this Tribunal is in the process of doing and the next date of hearing is 15th May 2006. It is clear from the Inter-connect Regulations that a signal receiver is entitled to receive signals on demand and on non-discriminatory basis and on reasonable terms. This Tribunal has a duty to see that this mandate of the Regulations is adhered to by the various players in the Cable sector. Therefore, we will have to go through a prima-facie exercise to arrive at a reasonable subscription rate though not conclusive for the purpose of the disposal of the interim prayer by looking into various aspects of this case. In that process, we will have to bear in mind the following cardinal principles while granting the interim order. These are:
(i) Prima-facie case;
(ii) Balance of convenience;
(iii) Irreparable Loss.
Prima-facie Case:
7. A perusal of the finding given by this Tribunal in Petition No.39(c) of 2004 indicates that the subscriber base and the subscription payable by the Petitioner could be even below the interim figure fixed by this Tribunal in the said case by its order dated 17th August 2005. The present figure of subscription rate of Rs.1.08 crores therefore seems to be almost double the interim figure arrived at by this Tribunal, which was also confirmed by the Delhi High Court. Therefore, we are satisfied that the Petitioner has made out a prima-facie case for obtaining an interim order from this Tribunal.
Balance of Convenience:
8. The Petitioner has been catering to over 5 lakh cable homes which includes among other channels the channel of the Respondent broadcaster. If the Petitioner is deprived of its right to receive signals during the pendency of the petition, then the subscribers of the Petitioner will have to forego the receipt of the signals or shift their loyalty to some other service provider. Either way, the Petitioner or its subscribers will be put to considerable inconvenience. On the contrary, the broadcaster being in the business to sell its signals on receipt of its consideration would not in any manner be inconvenienced if we direct the Respondent broadcaster to provide signals during the pendency of the petition for which a reasonable provision of payment of subscription is made for the time being which could be finally adjusted.
Irreparable Loss:
9. The loss suffered by the Petitioner and its ultimate subscribers can never be replaced if signals are not given during the pendency of this petition. In other words, the clock cannot be put back. Whereas, if the Respondent is directed to give signals for which interim payment is being made it will not be put to any irreparable loss since Respondent being an entertainment provider will receive its considerations during the pendency of this petition, which will be finally adjusted after a full dressed hearing. Therefore, irreparable loss, if any, would be more to the Petitioner than to the Respondent.
10. It may be relevant to note herein that when the earlier petition was disposed of finally by this Tribunal a direction was given to continue the signals till 30th April 2006 unless the parties entered into an agreement. As stated above the agreement between the parties were signed though under protest on 30th April 2006 and the Petitioner was called upon to pay the same sum incorporated in the agreement by 1st of May 2006. Still for reasons better known to the Respondent, the signals to the petitioner, it is contended, were disconnected at about 5.00 a.m. on 1st of May 2006, which clearly indicates that the Respondent has no intention of providing signals unless it is compelled to do so by an order of this Tribunal.
11. We do take note of the fact that directing the Respondent to provide signals at a preliminary stage may in a way amount to granting final relief. But in exceptional cases where facts and justice requires the passing of a mandatory interim order which if not passed will cause irreparable loss, the Tribunal should not refuse such order. We have already held that by not passing the interim order irreparable loss will be caused to the Petitioner and viewer public at large whose interest should be paramount. That apart, even in law Petitioner is entitled to the signals of the Respondent on demand and on must provide basis, of course, on payment of reasonable fees which issue will have to be decided by this Tribunal at a later stage. For the present we will have to fix an interim amount which we will do here by taking into consideration all available factors.
12. It is in this background, we think it appropriate and in the interest of justice to direct the Respondent to activate its signals to the Petitioner on Petitioner paying a monthly subscription of Rs.55 lakhs, which is to be adjusted after the final hearing in this petition and such activation of the signals, if necessary by providing the decoders and the SIM card, will be done within 24 hours of receiving the subscription for the month of May 2006 as stated hereinabove.
Ordered accordingly.
