2018 Supreme(SC) 1098

SUPREME COURT OF INDIA
R.F. Nariman, Navin Sinha, JJ.
STAR INDIA PRIVATE LIMITED – APPELLANT
VERSUS
DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION & ORS. – RESPONDENTS
CIVIL APPEAL NOS.7326-7327 OF 2018 WITH CIVIL APPEAL NOS.7328-7329 OF 2018
Decided On : 30-10-2018

IMPORTANT POINTS
Broadcasting services and cable services are telecommunication service.
Regulation and Tariff Order made under the Act would both be within the reach of TRAI.
To be uplinked to a satellite and thereafter downlinked from such satellite to an MSO, permission from Central Government would be required.
Content of a TV channel not sought to be regulated at any stage by TRAI Act.
Pricing relating to TV channels laid down in the Regulation and Tariff Order is a balancing act between the rights of broadcasters and the interests of consumers.
Power u/s 36(1) very wide and is not constricted by the provisions of Section 11.
TRAI Act and Copyright Act operate in different fields. TRAI Act does not transgress into Copyright Act.
To the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter.

Headnote:(a) Telecom Regulatory Authority of India Act, 1997 – Section 2(1)(k), Proviso – Held valid – Central Government notifying broadcasting services and cable services to be telecommunication service – Giving additional functions to TRAI. (Para 16)

       (2018) 146 DLT 455 – Cited with approval

       (b) Telecom Regulatory Authority of India Act, 1997 – Section 36 – The Regulations should protect interests of service providers and consumers. (Para 23)

       (2014) 3 SCC 222 – Relied upon

       (2016) 7 SCC 703; (2016) 7 SCC 703 – Distinguished

       (c) Telecom Regulatory Authority of India Act, 1997 – Section 11(2) r/w Preamble, and Regulations 2, 6, 7, 10, and 11, Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 r/w Clauses 3 and 4, Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 – Regulation and Tariff Order made under the Act would both be within the reach of TRAI. (Para 24)

       (d) Indian Telegraph Act, 1885 – Section 3(1AA) r/w Sections 5 of the Indian Wireless Telegraphy Act, 1933 – Only a person licensed under Section 5 of Act 1933 can use a teleport from India from which a TV channel is to be uplinked to a satellite – Equally, to be uplinked to a satellite and thereafter downlinked from such satellite to an MSO, permission from Central Government would be required. (Para 27)

       (e) Telecom Regulatory Authority of India Act, 1997 – Section 11(2) r/w Preamble – No constricted meaning can be given to the provisions of the Act – Function of the Authority – To facilitate competition and promote efficiency in the operation of telecommunication services (including broadcasting services) so as to facilitate growth in such services – Also to fix all terms and conditions of interconnectivity between between broadcaster, MSO, Cable TV operator and the ultimate consumer – The Authority may, from time to time, notify the rates at which telecommunication services, including broadcasting services, within India and outside India, shall be provided – Content of a TV channel not sought to be regulated at any stage – Pricing relating to TV channels laid down in the Regulation and Tariff Order is a balancing act between the rights of broadcasters and the interests of consumers. (Para 30)

       (2012) 5 SCC 275; (2006) 13 SCC 753 – Relied upon

       (f) Telecom Regulatory Authority of India Act, 1997 – Sections 11 and 36 – Power u/s 36(1) very wide – Not constricted by the provisions of Section 11. (Para 32)

       (2014) 3 SCC 222 – Relied upon

       (g) Interpretation of statute – Expression ‘including’ – Would only refer to a part of the provision that precedes the expression – Cannot constrict the part that has gone before. (Para 30)

       (h) Telecom Regulatory Authority of India Act, 1997 – Section 36 – Regulation and the Tariff Order – Made keeping the interests of the stakeholders and the consumers in mind – Intra vires the regulation power contained in Section 36. (Para 37)

       (i) Interpretation of statute – TRAI Act and Copyright Act – Section 2(dd), Copyright Act and Clause 2(j), TRAI Regulations and Tariff Order – Definition of ‘broadcast’ – Distinction – Words “intended to be received by the general public either directly or indirectly” appearing in Clause 2(j) – Completely missing in section 2(dd) – Further, section 52(1)(b) of Copyright Act permits transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public being not an infringement of copyright – Copyright protecting only the proprietary interest of broadcaster, focus is not on interest of end user or consumer – TRAI Act, on the other hand, focuses on interest of both the broadcaster and the ultimate consumer – Both Acts operate in different fields – TRAI Act not transgressing into Copyright Act. (Para 63, 64)

       (2008) 13 SCC 30 – Referred

       (j) Interpretation of statute – Harmonious interpretation – TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code insofar as wireless telegraphy and broadcasting is concerned – TRAI Act serving the interest of both broadcasters and consumers must prevail, to the extent of any inconsistency, over the Copyright Act protecting the property rights of broadcasters – Held, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter. (Para 66, 67)

       Facts of the case:

       The present civil appeals raise a challenge to certain clauses of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 and the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 made under the Telecom Regulatory Authority of India Act, 1997. Since regulations made under the TRAI Act were under challenge, a writ petition was filed before the Madras High Court.

       a. Whether the Telecom Regulatory Authority of India has the power to regulate only the ‘means of transmission’, viz. the ‘carriage’ aspect of broadcasting, and does not have the power to regulate the ‘content’ of the broadcast (i.e. the channel and/or its constituent programmes)?

       b. Whether the impugned clauses, in fact, and in effect, regulate the content of the broadcast (i.e. the channel and/or its constituent programmes)?

       c. Whether the impugned clauses have a direct effect on the pricing and marketing of a television channel by the broadcaster and hence is an illegal interference with the content of the broadcast (i.e. the channel and/or its constituent programmes)?

       The appellants have contended that the impugned clauses have the effect of regulating programmes and television channels, their pricing and their marketing and manner of offering/ bundling in the following illustrative manner, which is beyond the scope of TRAI’s jurisdiction of regulating “means of transmission”:

       a. TRAI has effectively fixed a uniform maximum retail price for each TV channel at INR 19/-;

       b. TRAI has stipulated that a television channel, which is individually priced at more than INR 19/- cannot be included in a collection of television channels (commonly referred to as a “bouquet”) and can only be offered on an individual/ a-la-carte/ stand-alone basis;

       c. TRAI has stipulated that the price of a bouquet of television channels shall not be less than 85% of the sum of a-la-carte prices of television channels comprised in the bouquet;

       d. TRAI has stipulated that the sum of discount on television channels and the distribution fee paid by broadcasters to a distributor of television channels, cannot exceed 35% of the maximum retail price of the television channel;

       e. Television channels cannot be priced differently for different distribution platforms;

       f. Channels of one broadcaster cannot be offered by another broadcaster in their bouquet of television channels, even after obtaining due authorization;

       g. Promotional schemes (i) can only be offered on a-la-carte prices for offering television channels and not on bouquet prices, (ii) cannot exceed 90 days at a time, and (iii) can be offered only twice in a year;

       h. High definition and standard definition channels cannot be in the same bouquet of television channels;

       i. Pay channels and free to air channels cannot be in the same bouquet.

       The High Court finally held that the impugned provisions neither touch upon the content of programmes of broadcasters, nor liable to be struck down.

       Finding of the court:

       Madras High Court has taken a correct view.

       Result: Appeal dismissed.