The Madras High Court today referred to a third judge the petitions challenging TRAI's March, 2017 regulations and tariff order related to pricing of television channels offered as a bouquet, after a two-judge bench headed by Chief Justice Indira Banerjee delivered a split verdict in the matter.
Passing orders on the petitions filed by Star India Private Limited and its subsidiary Vijay Television Private Limited, the Chief Justice upheld the impugned regulations, the tariff order on pricing and packaging of TV channels offered in a bouquet and a cap on channel prices.
"In my considered view, the challenge to the impugned regulation and the tariff order fails," she said in her order.
The Chief Justice, however, held as "arbitrary" the clause putting a cap of 15 per cent on the discount on the MRP of a bouquet and said it was "not enforceable"
In his dissenting judgement, Justice M Sundar struck down various provisions in the tariff order which touch upon content of the programmes of broadcasters as not in conformity with the parent Telecom Regulatory Authority of India (TRAI) Act.
In view of the dissenting judgement, the Chief Justice referred the matter to the next available judge in order of seniority for nomination of the judge before whom the matter may be placed for adjudication.
The petitioners challenged the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 and the consequential Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017.
Contending that the impugned order and regulations were unconstitutional and ultra vires of the provisions of the TRAI Act, 1997 in as much as they were beyond the scope of the jurisdiction of the regulatory authority, they sought to quash the same.
Among others, the TRAI regulations said channels when given in bouquets should not be a mix of pay channels and free to air channels, and mandated that a bouquet should not contain any pay channel where the maximum retail price (MRP) was more than Rs.19.
It had also said MRP of a bouquet should not be more than 85 per cent of the sum of a-la-carte MRP of pay channels constituting a bouquet.
Besides, the regulations also mandated that MRPs of broadcasters should be uniform for all distribution platforms.
Justice Sundar, who delivered a separate 113-page dissenting order, concurred with the submissions of senior counsels P.Chidambaram and Abhishek Singvi who had appeared on behalf of the petitioners, and struck down the impugned provisions which touch upon content of the programmes of broadcasters as not in conformity with the parent act.
The Chief Justice upheld the provisions while concurring with the submissions of senior counsel P Wilson for TRAI.
"It is not for this court, exercising its extraordinary jurisdiction under Article 226 of the Constitution, to decide whether price fixation under the impugned tariff order and or regulations is commensurate with the cost incurred by the broadcasters," she said in her order.
She said the regulations do not put an inflexible cap on pricing. The cap was only on the pricing of channels offered in a bouquet and not otherwise.
Justice Banerjee said the restrictions on the pricing of bouquets were made apparently in the interest of the end users who may not be duped or misled by inclusion of any number of free channels and less popular channels that make a bouquet appear to be lucrative by sheer reason of number of channels in it.
She said the powers had been exercised within the jurisdiction by TRAI.
"I am unable to agree with the conclusion of Justice M Sundar that the provisions of the regulation and the tariff order are not in conformity with the TRAI Act. In my view the impugned provisions neither touch upon the content of programmes of broadcasters, nor liable to be struck down," she said.
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