Siti Networks Ltd vs Prasar Bharati

At the outset, it is pointed out by the learned senior counsels Mr. Maninder Singh and Mr. Gopal Jain appearing for the applicant in Broadcasting Petition Nos. 503 of 2022 and 504 of 2022, respectively, that Amazon Sellers Services Private Limited is a necessary party in these litigations. They shall be vitally affected by the outcome of these Broadcasting petitions. The Ld. Senior counsels for the applicant submitted that they are in fact owners of the live signals of the ongoing India- New Zealand series 2022 which are purchased from New Zealand Cricket for a sizable consideration. Ld. Senior counsels therefore seek permission to circulate these M.As for joining Amazon Sellers Services Private Limited as a party respondent no. 2 in these two Broadcasting Petitions. Permission, as prayed for, is granted.

We hereby direct the Registry of this Tribunal to give a number to these two M.As. Copy of this MAs has been supplied to the counsel for the petitioners in the Broadcasting Petitions.

Having heard the counsels for both the sides and looking to the facts and circumstances of the case as stated in these M.As and also looking to the factual averments made in the memo of these petitions, we hereby allow these M.As. Amazon Sellers Services Private Limited is permitted to be joined as a party respondent no. 2 in both the Broadcasting Petitions.

Necessary amendments shall be carried out in red ink in memo of these Broadcasting Petitions.

Both the M.As are allowed and disposed of.

We have heard the Ld. counsels for the petitioners at length. Ld. counsels for the petitioners has argued out the case and has submitted that the respondent no. 1 has published a list of channels that are to be included in the DTH service vide Office Memorandum dated 06.09.2013 while exercising powers under section 8(1) of the Cable Television Network (Regulations) Act, 1995 (for the sake of brevity, hereinafter referred to as the “Act of 1995”). Counsels for the petitioners in both the aforesaid Broadcasting Petitions submitted that there are 24 such channels which are to be shown to the public at large by the petitioners which include “DD Sports”. This DD Sports 1.0 channel is Free to Air Channel(FTA). It is further submitted by the counsels for the petitioners that since 2013 they are showing DD Sports channels along with other channels to the public at large and even as on today this Office Memorandum dated 06.09.2013 is in operation. Copy of this Office Memorandum has been tendered to this Tribunal and copy thereof has been given to the counsels for the respondents. This Office Memorandum dated 06.09.2013 is taken on record.

Counsels for the petitioners in both the Broadcasting Petitions have taken this court to the fine nicety of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter referred as the “Act of 1990”), as well as the provisions of The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 (hereinafter referred as the “Act of 2007” especially sections 3 and 4 thereof and the definition given therein under section 2 and also the provisions under the “Act of 1995” especially sections 8 thereof as well as the judgement of Hon’ble the Supreme Court reported in (2018) 11 SSC 700 and has submitted that looking to the provisions of sections 8 of the Act of 1995 and looking to Office Memorandum dated 06.09.2013 issued in pursuance of the powers vested in the Central Government under section 8 (1) of the “Act of 1995”and also looking to the fact that since 2013 both the petitioners are showing DD Sports channels continuously without abruption, the respondent No. 1 cannot give a jacket upon DD Sports Channel which is technically known as encryption and, therefore, both the petitions are seeking interim relief to the effect that either the respondent no. 1 should provide decoders or DD Sports 1.0 channel should be supplied in an unencrypted mode, as supplied by them since 2013. The One-Day International match between India and New Zealand is to be played tomorrow at 7 A.M i.e. 25.11.2022 as Indian Standard Time and, therefore, let these matters be admitted and kept for final hearing, but as interim relief DD Sports 1.0 channel maybe directed to be supplied by the respondent no. 1 to the petitioner in an unencrypted mode till these Broadcasting Petitions are being finally decided.

Several other points have been argued out on the basis of the aforesaid three Acts of the year 1990, 1995 and of the year 2007 to be read with the decision given by Hon’ble the Supreme Court in (2018) 11 SCC 700.

Ld. Senior counsel appearing for the respondent no. 1 upon instructions given by the officer who is Director (Engineering) of respondent no. 1 present in this Tribunal, submitted that it is true that since 2013 respondent no. 1 is supplying DD sports 1.0 channel in an unencrypted mode. It is further submitted by the senior counsel for the respondent no. 1 that they have acted in pursuance of the agreement/understanding between the respondent no. 1 and respondent no. 2. It is submitted vehemently by the Ld. Senior counsels for the respondent no. 2 in both the Broadcasting Petitions that the respondent no. 2 is not a broadcaster nor is a licensee and, therefore, the provisions of the “Act of 1995” is not applicable. Moreover, it is further submitted by the senior counsels for the respondent no. 2 that respondent no. 1 has in exercising of powers under sections 12 (3)(c) of Prasar Bharati Act, 1990 has negotiated with respondent no. 2 for purchase of rights in respect of sports for broadcasting on their own channels and in fact the respondent no. 2 is an owner of the content. Similarly, there are valuable copyrights, vested in the respondent no. 2 for the ongoing India- New Zealand series 2022. These rights have been purchased at a sizeable consideration by the respondent no. 2 from New Zealand Cricket and, therefore, these petitioners in both these petitions cannot get DD sports 1.0 channels signals from respondent no. 1 as a matter of right. In fact, there is no right vested in the petitioners. Section 8 of the “Act of 1995” merely creates an obligation and, therefore, cannot be used as a right in favor of the petitioners. Moreover, the counsels for respondent no. 2 in both the aforesaid Broadcasting Petitions have argued the fine niceties of all the aforesaid three statues to be read with the decision rendered by Hon’ble the Supreme Court reported in (2018) 11 SSC 700, specially para 35 thereof, and has submitted that section 12 (3)(c) of the “Act of 1990” and section 8 of the “Act of 1995” are absolutely independent of each other.

Having heard the counsels of both the sides and looking to the contentious issues raised in these Broadcasting Petitions, they are admitted.

Notice of admission upon the respondents which the respective counsels are accepting. So far as interim relief is concerned, it appears to this Tribunal that as per section 8 of the “Act of 1995” Central Government has issued a notification dated 06.09.2013.

For the ready reference section 8 “Act of 1995” reads as under:

Compulsory transmission of certain channels.—

(1) The Central Government may, by notification in the Official Gazette, specify the names of Doordarshan channels or the channels operated by or on behalf of Parliament, to be mandatorily carried by the cable operators in their cable service and the manner of reception and re-transmission of such channels:

Provided that in areas where digital addressable system has not been introduced in accordance with the provisions of sub-section (1) of section 4A, the notification as regards the prime band is concerned shall be limited to the carriage of two Doordarshan terrestrial channels and one regional language channel of the State in which the network of the cable operator is located.

(2) The channels referred to in sub-section (1) shall be re-transmitted without any deletion or alteration of any programme transmitted on such channels.

(3) Notwithstanding the provisions of sub-section

(1) , any notification issued by the Central Government or the Prasar Bharti (Broadcasting Corporation of India) in pursuance of the provisions of sub-section (1), prior to the 25th day of October, 2011 shall continue to remain in force till such notifications are rescinded or amended, as the case may be.

(Emphasis Supplied)

Notification issued by the Central Government in exercise of power under section 8(1) “Act of 1995” reads as under:

No. 8(12)/2007-BP&L

Government of India

Ministry of Information and Broadcasting

'A' Wing, Shastri Bhawan, New Delhi -110001.

Dated: 6th September,2013

OFFICE MEMORANDUM

******************

SUBJECT: Channels to be compulsorily carried on the Direct- to-Home (DTH) service platform as per Clause 7.8 of the Schedule to the License Agreement.

In supersession of this Ministry's OM No. 8(12)/2007 -BP &L dated 26th November 2007 and in terms of the provisions contained in Clause 7.8 of the schedule to the DTH License Agreement, the following channels, as notified by the Central Government vide Notification S.O. 2693(E) dated 5th September, 2013 under sub-section (1) of Section 8 of the Cable Television Networks (Regulation) Act, 1995, are to be mandatorily included in the DTH services:-

S.No.

Name of the Channel

Genre

1.

DD National

General Entertainment (Hindi)

2.

DD News

News and Current Affairs

3.

DD Bharati

Infotainment

4.

DD Urdu

Infotainment

5.

DD Sports

Sports

6.

DD India

Infotainments

7.

DD Kashir

General Entertainment(Regional)

8.

DD Punjabi

General Entertainment(Regional)

9.

DD Girnar

General Entertainment(Regional)

10.

DD Sahyadri

General Entertainment(Regional)

11.

DD Saptagiri

General Entertainment(Regional)

12.

DD Malayam

General Entertainment(Regional)

13.

DD Podhigai

General Entertainment(Regional)

14.

DD Chandana

General Entertainment(Regional)

15.

DD Bangla

General Entertainment(Regional)

16.

DD North East

General Entertainment(Regional)

17.

DD Bihar

General Entertainment(Hindi)

18.

DD Uttar Pradesh

General Entertainment(Hindi)

19.

DD Rajasthan

General Entertainment(Hindi)

20.

DD Madhya Pradesh

General Entertainment(Hindi)

21.

DD Oriya

General Entertainment(Regional)

22.

Gyan Darshan Channel

Infotainment

23.

Lok Sabha Television Channel

News and Current Affairs

24.

Rajya Sabha Television Channel

News and Current Affairs

It shall be obligatory for every DTH operator to provide the above channels to the subscribers, irrespective of any bouquet(s) or ala-carte channel(s) being subscribed by them. The DTH operator shall also place the above channels in the respective genre and shall display them in full television screen.

This issues with the approval of Competent Authority.

Sd/-

(K.S. Rejimon)

Director (BP&L)

(Emphasis supplied)

Prima facie, even in presence of an agreement or understanding between respondent no.1 and respondent no. 2 section 8 of the “Act of 1995” applies to the signals which have been obtained by the respondent no. 1 for distribution and broadcasting in whole of India, in pursuance of the obligation created under 8 of the “Act of 1995”.

Moreover, since 2013 the respondent no. 1 is providing unencrypted DD sports 1.0 channel(FTA).

Moreover, the Central Government notification dated 06.09.2013 is valid even today, which enumerates 24 channels including DD Sports at serial no. 5. All these channels are being given to the petitioners in an “unencrypted mode” since 2013 i.e. from the date of Office Memorandum to 22.11.2022, and now, without any notice the respondent no. 1 has given the DD Sports 1.0 channel(FTA) with encryption. Thus, respondent no. 1 has provided a jacket to the DD Sports 1.0(FTA) channel that requires decoders by the petitioners to show their channels to the public at large and the supply of such decoders at this stage by the respondent no. 1 in whole of such a vast and wide country like India takes longer time.

Thus, there is a prima facie case in favor of the petitioners. Looking to the further detailed provisions of the “Act of 2007” to be read with the “Act of 1995” in light of the “Act of 1990” there is a definite goal to be achieved by the Union of India in the field of sports. Since 2013, DD Sports 1.0 channel(FTA) was supplied in an unencrypted mode to the public at large. Thus the balance of convenience is also in favor of this petitioners and irreparable loss will be caused to them if the stay as prayed for is not granted. We, therefore, direct the respondent no. 1 to supply DD sports 1.0 channel(FTA) in an unencrypted mode during the pendency of these Broadcasting Petitions.

All the fine niceties of the arguments canvassed by the counsels for the petitioners as well as the counsels for the respondents shall be dealt with at the time of final hearing of these Broadcasting Petitions. If one by one all the arguments canvassed by both the sides are dealt with at this stage, perhaps nothing will be left out to be decided at the time of final hearing of this Broadcasting Petitions.

Counsels for both the respondents in both the aforesaid Broadcasting Petitions are seeking time to complete the pleadings and they are seeking time to file reply within a period of 4 weeks. The copy of the reply shall be supplied to the counsels for the petitioners and they are also seeking time to file rejoinder affidavit within further period of two weeks, thereafter.

The Registry is, therefore, directed to enlist both these Broadcasting Petitions under the head for final hearing on 20. 01.2023.

This order has been passed in open court and heard categorically by the respondent no. 1 and, therefore, the same shall be obeyed by the respondent no. 1 because the next match is tomorrow at 7 A.M i.e 25.11.2022.