Khammam Popular Communications, … vs Channel Plus-Ap, Sri Sai … on 30 April, 2007

0
71
Telecom Disputes Settlement Tribunal
Khammam Popular Communications, … vs Channel Plus-Ap, Sri Sai … on 30 April, 2007
Bench: A Kumar, D Sehgal


ORDER

1. The Petitioner in this petition is a Multi System Operator (MSO), operating in the area of Khammam Town in Andhra Pradesh. The Respondent No. 1, Channel Plus is a Broadcaster supplying Gemini and Teja channels. Respondent No. 2, M/s Sri Sai Communication is a distributor of Respondent No. 1 from whom the petitioner was getting signals and further supplying to its cable operators. Respondent No. 3 is another MSO of Respondent No. 1 in the same area who is also supplying signals to cable operators of the petitioner. The cable operators are thus getting feed from both MSOs, termed as dual feed. The brief background of this petition is given in the subsequent paragraphs.

2. The petitioner had entered into an agreement with Respondent No. 1 on 1st December 2003 for getting signals of Gemini and Teja channels from respondent No. 2. The agreement was for a total period of three years, initially for a period of one year and it automatically stood renewed each subsequent year for next two years. The agreement was for 11,000 subscribers during the first year which was revised to 13,000 and further revised to 27,000 with effect from April 2004 and finally to 40,000 with effect from April 2005. The relevant papers i.e. initial agreement and validation forms for increase of subscribers in April 2004 and April 2005 are on record with the reply affidavit at Annexure ‘R-5’. According to the petitioner he had been receiving signals of Gemini and Teja channels of the broadcaster Respondent No. 1 regularly and paid the subscription fee since 2003 till August 2005 though there were discrepancies in Invoices during the years 2004 and 2005. The petitioner stated in the petition that in August 2005 Respondent appointed another MSO i.e. Respondent No. 3 which resulted in reduction in its subscriber base. From September 2005, it therefore started paying for 20,000 subscribers. On 2nd November 2005, these two channels were disconnected by the Respondent. Petitioner stated that despite writing letters to the respondent the signals were not reconnected and hence this petition asking for the relief as under:

(a) Ascertain the monthly payment to be given by the Petitioner to the Respondent No. 1 on the basis of the connectivity of the Petitioner.

(b) Direct the Respondent No. 1 and/or 2 to refund the excess to the Petitioner from April 2005 – October 2005 @ Rs. 10/- connectivity with connectivity figures of 27,000 (from April – August 2005) and with connectivity figures of 20,000 (from August 2005 – October 2005) amounting to approximately Rs. 5,73,040/-.

(c) Determine the payment of subscription fees to be payable for the month of November 2005 and onward based on the subscriber base at the then prevalent rate on month to month basis.

(d) Allow this Petitioner of the petitioner with costs; and

(e) Pass such other order(s) or further order(s) as this Tribunal may deem fit and proper in the facts and circumstances of the case.

3. The Petitioner also prayed for the following interim relief.

(a) Pass an Ex-Parte interim Order directing the Respondent No. 1 and/or 2 directly for restoration of the Gemini & Teja channels so disconnected by Respondent No. 1 & 2 without giving the statutory notice of disconnection.

(b) Direct the Respondent No. 1 & 2 to withdraw the arbitrary demand for the restoration of the said channels.

(c) Pass such other or further order or orders as to this Tribunal may deem fit and proper.

4. On 23rd November 2005 we as an interim arrangement and without prejudice to the contentions of the parties directed the respondent to reconnect the signals within 24 hours subject to the petitioner depositing a sum of Rs. 2.50 lakhs. At that time the petitioner was paying to the respondent for a subscriber base of 20,000 which was to continue till further orders.

5. There are basically two issues in this petition which need to be decided. First, as contended by the petitioner whether the disconnection was arbitrary and unjustified without any prior notice as per the Telecom (Broadcasting & Cable Services) Interconnection Regulation dated 10.12.2004 or was the respondent justified in disconnecting the signals. Second issue is the subscriber base for which the petitioner is liable to pay to the respondent for getting the signals. This has to be decided in view of the agreement and during various time periods before and after the petition was filed.

6. When we heard the matter on 9th of March 2006 we ordered for a joint survey to be conducted by both the parties and gave time of four weeks to appoint a joint surveyor commonly acceptable to both. However, the survey was not undertaken because of the conflicting stand taken by both the parties and they blaming each other for failure in not conducting the joint survey. On 21st April 2006, we therefore decided to appoint a committee for a survey to be done and the relevant order is reproduced:

2. From the above factual background, we appoint Mr. Syed Sadiq Ali, MSO, Popular Communications, Mr. S.K. Pasha, Technician and Mr. Jawad Ulhaq, Technician, as representatives of the petitioner for conducting the survey while we would propose to direct and appoint Mr. K. Srinivas, Executive, Channel Plus A.P., Mr. K. Pradeep Reddy, Operator, Mr. V. Sridhar, Operator whose names have been mentioned in minutes of the meeting recorded on 6th April 2006, as representatives of the respondent broadcaster. The above committee will conduct the survey as agreed to in the said minutes of the meeting and will submit a report to this Tribunal within two weeks from today. Both the parties to this petition shall render all cooperation in conducting the survey and the surveyors appointed by this order shall act as representatives of this Tribunal and submit the report. The cost of survey will be fixed by this Tribunal on receipt of the report by the above mentioned committee.

7. On 23rd May 2006 we were informed that the committee had not been able to complete the work and in fact was soft pedaling the issue. We, therefore appointed an independent Local Commissioner Mr. Vaibhav Srivastav for the same who submitted his report on 21st July 2006. We asked both the parties about their objections or otherwise to the Commissioner’s report. We have also gone through the report in detail. The Commissioner’s report in sum is as under:

(a) The petitioner was having a large subscriber base till April 2006.

(b) From May 2006 the captive subscriber base of the petitioner is 5,000 connections. Besides these 5,000 connections the petitioner is also supplying signals to the cable operators who in addition to the petitioner are getting signals from another MSO i.e. Dual Feed is being given to the operators. The number of dual feed subscribers is approximately 17,670.

8. On receipt of the Commissioner’s report, we were told that the petitioner is catering for 5,000 subscribers. Therefore we amended the interim order on 29th September 2006 to state that from this date onwards it will pay for 5,000 subscribers only.

9. There is no denying the fact and the petitioner has also accepted that the agreement was signed between the parties which was operative for a period of three years. The subscriber base however, starting with 11,000 at the beginning of the agreement was increased up to 40,000 by the respondent which of course was also signed by the petitioner. It is admitted by the petitioner that it was paying regularly to the respondent in accordance with the agreement. It was only in August 2005 when Respondent No. 1 appointed another MSO for the same area that the petitioner started paying for reduced subscriber base of 20,000 as compared to a subscriber base of 40,000 for which it was paying earlier. Since the agreement was signed for a subscriber base of 40,000 for the period and also the petitioner was paying for this subscriber base, unilateral reduction of subscriber base to 20,000 in September 2005 triggered the respondent into disconnection of signals on 2nd November 2005. The petitioner contends that the respondent had no case to continue with the subscriber base of 40,000 as per the agreement since it appointed another MSO who took away part of the business of the petitioner and therefore it was not authorized to collect subscriber fee for subscriber base of 40,000. The respondent however, felt that the agreement was binding and therefore unilateral action of petitioner to reduce the subscription fee, compelled it to disconnect the signals. Besides, the respondent stated that the petitioner owed some amount to it. Though the agreement was signed prior to the Interconnect Regulation coming into force but the disconnection of signals was done after the Regulation had become operative. We, therefore, feel that the respondent should have given prior notice before disconnecting signals. Be that as it may, respondent did have a reason to disconnect the signals though it was done without following proper procedure. It is in the light of this fact and also in the interest of consumers that we ordered the reconnection on 23rd November 2005.

10. The second issue is about the subscriber base. There was no dispute between the parties till another MSO was appointed by the respondent to give signals in the same area where the petitioner was supplying signals to its cable operators. Therefore, the agreement remained operative till August 2005 and the petitioner is under obligation to pay for a subscriber base of 40,000 up to this period. We will decide on the subscriber base for the period September 2005 till the finalization of this petition.

11. The matter was finally heard on 20th April 2007. We heard both the counsels on the report of the Local Commissioner which holds the key to decide the subscriber base of the petitioner. Mr. Navin Chawla, learned Counsel for the petitioner stated that the report of the local commissioner was very clear that it had only a subscriber base of 5,000 whereas the counsel for the respondent vehemently opposed this stand stating that the report of the Commissioner stated that petitioner had 5,000 subscribers in addition to 17,670 subscribers which were getting dual feed. According to respondent therefore as per the local commissioner the petitioner is supposed to have 22,670 subscribers. There was no denial on the part of the respondent of having appointed the second MSO and both parties were in agreement about the dual feed.

12. Having heard both the parties and also having gone through the pleadings as well as the Local Commissioner’s Report, we are of the view that from September 2005 the cable operators in the area of operation where the petitioner is operating, were getting signals from the petitioner as well as respondent No. 3 and they have been giving the collections from the subscribers in the ratio of 50 : 50 to both the petitioner and the respondent No. 3. It means that both the petitioner and the respondent No. 3 are having a subscriber base of dual feed being shown by the commissioner in his report in addition to the individual subscribers being serviced by the petitioner and also respondent No. 3. We are not concerned about the individual subscribers of respondent No. 3 but such subscribers of the petitioner need to be identified to arrive at a correct subscriber base of the petitioner which is basically the dispute. On this point the petitioner contended that the cable operators mentioned by the Commissioner in his report as captive cable operators also form part of the list of dual feed operators. Mr. Chawla therefore, stated that this subscriber base of 5,000 was included in the subscriber base of 17,670. We, therefore asked both the parties to give us in writing in their written submission the details of such subscribers who were shown as captive subscribers of petitioner who also formed part of subscribers shown as dual feed subscribers. We have got this report and the petitioner has submitted that all the cable operators in his captive list form part of dual feed operators except the last three operators. The Respondent has not given any details of these in its written submission. The total number of subscribers of these, three cable operators at Sl. Nos. 59,60 & 61 (700 + 260 + 140) amount to total 1100. Therefore, at the time of survey, the subscriber base of the petitioner is 17,670 (dual feed subscriber base) and 1100 (individual subscribers) making a total of 18,770. It is also mentioned by the Commissioner in his report that till April 2005 the petitioner had larger subscriber base. This is understandable and acceptable to us in view of the fact that till second MSO was appointed, the petitioner was paying for a subscriber base of 40,000 as per the agreement. When the second MSO was appointed approximately half of the subscribers would have migrated to that MSO. Therefore the subscriber base of 20,000 from September 2005 till April 2006 is correct subscriber base. After May 2006 the petitioner is liable to pay for a subscriber base of 18,770 till April 2007. Our interim order dated 29th September 2006 where we had asked the petitioner to pay for 5,000 subscribers accordingly stands amended.

13. With the above directions, the petition stands disposed of.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *