 "Time Group's Entertainment Network moves HC for postponement of FM auctions")
The petition was filed in response to an interim order passed by the court allowing Sun TV's FM channels to participate in the auctions while its petition was awaiting a decision.
Entertainment Network India, a subsidiary of Times Infotainment Media, the holding company promoted by Bennett, Coleman & Company, owns Radio Mirchi, one of the country’s largest FM radio brands. In its application, the company said it had no objection to the participation of Sun TV companies in the auctions, but only to their conditional participation.
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"It is the conditional nature of participation that causes harm to the applicant, not the participation per se," said in the petition.
The Court adjourned the matter to August, while directing Sun TV to file a counter.
Sun Group was not given security clearance by the Home Ministry, resulting which Sun Group's 45 radio channels were not allowed to participate in auction. Sun TV and its subsidiaries approached the Court and sought relief.
On Thursday, the Court granted an interim relief to Sun TV, KAL Radio and South Asian FM and allowed them to participate in the auction, while directing that the result of the auctions may be kept in a sealed cover and produced before the Court.
Today, ENIL filed a petition saying ENIL and other bidders are likely to face-grave and irreparable injury in case the auctions are allowed to be held with a conditional participation of the Sun TV and its companies.
"We have no objection the participation of the petitioner (Sun Group & companies) in the auctions, but only to their conditional participation, subject to a final verdict of the court. It is the conditional nature of participation that causes harm to the applicant, not the participation per se," said in the petition.
ENL explained that in the event the e-auction process necessarily entails that each broadcaster shall have a separate computer terminal where it can follow its own progress on whether or not it has won the auction for a particular city or not. Hence, to the extent, the result is already public and no useful purpose would be served by keeping the results in the sealed cover.
The auctions for multiple cities and multiple frequencies shall happen simultaneously, moving ahead round by round, with the bidders being able to bid for different cities all at once. Further, the entire auctions shall finish only simultaneously and results will be known to the broadcaster bidders at the end of each round of auction for all cities and frequencies they have participated in respectively.
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At a later date, the results of the auction, inasmuch as they pertain to telling all broadcaster bidders of the outcome with regard to be the other bidders, will be kept under wraps and the bidders may get to know about the successful nature of bids much later, second as the bid prices will determine the Non-Refundable One Time Migration Fee for all existing license holders to pay in order to migrate to phase-III of FM radio, such an order would keep the entire migration process in suspended animation, thereby leading to a complete chaos and uncertainty about the future of the present licensees, said ENL.
Unless the MIB extends the permission of broadcasters whose licenses are slated to expire on September 30, 2015, they may be forced to go off-air. "This will be a compounded and useless exercise in case the bidding has to be held all over again if the present writ petitions fail and finally the entire process of auctions shall have to be carried out all over again, thereby resulting in wastage of time and resources of the bidders as well as the Government".
ENIL said bidders would already have exposed their strategies in the cancelled auctions. Hence they will enter the re-auction with strategies known to each other, thus affecting the outcomes in ways unknown.
Further, in the event that Sun Group were being allowed to participate without the condition that their participation in the auction is subject to the final outcome of the writ petition and hence, is conditional, they could freely bid, without the fear that despite winning the auctions, their successful bids could get cancelled.
In that regard, Sun Group will not be able to bid freely and in the same manner that they would have been able to, in case the conditionality threat did not loom over their decisions.
ENL claimed if Sun Group companies are allowed to participate conditionally, industry will suffer huge loss like what happened in the Phase 1 of radio policy. If they were not participating, then the bidding intensity would be lower. Hence it is possible that the national auctions for all 69 cities would close earlier, and at lower levels.
The higher intensity, if unjustified because of denial of Petitioners, at the time of disposal of these writ petitioner, would lead other broadcasters to pay much more.
ENIL sought Court's permission to intervene in the present matter and present its submissions to the Court, considering it would have a direct impact on the order passed in the petition filed by Sun TV and its companies, the company also sought interim relief that the auctions may be held only after conclusion of final hearing in the present matter and that such final hearing of the matter may be expedited, since the extensions given to licenses of all phase-II players, including the applicant herein shall expire in September 2015.
"Auctions scheduled for July 27, 2015 may be postponed enabling this court to hear this matter finally and order auctions to take place without any conditionality," the company prayed in the petition.