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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.A. SAYED, ANUJA PRABHUDESSAI, JJ.
The Film and Television Producers Guild of India Ltd. and Another – Petitioners
Versus
The Union of India and Another – Respondents
Writ Petition No. 680 of 2020, Writ Petition (L) Nos. 116, 117, 118, 120, 124, 125, 126, 127, 147 of 2020
Decided On : 30-06-2021
Constitution of India, 1950 – Article 19 – TRAI Act, 1997 – Section 11 – Indian Telegraph Act, 1885 – Functions of Authority – Association of broadcasters – Telecommunication – Services Interconnections – Held, Moreover, section 11(2) of TRAI Act provides that Authority may from time to time, by order, notify in Official Gazette rates at which telecommunication services shall be provided – Contention therefore that without waiting, as stated in Explanatory Memorandum, impugned 2020 Amendments were rolled out and impugned 2020 Amendments are a product of premature and hasty exercise cannot be countenanced – Authority as Regulator is expected keep a watch on market and act whenever the situation so warrants – In absence of any pleadings and Financial Statements, Court refrain to comment on alleged impact of present Covid-19 pandemic on Petitioners’ revenues and their ability to impart quality content/programmes on television – Writ Petitions disposed of.
Certainly. Based on the provided legal document, the following key points can be summarized:
The challenge to the constitutional validity of section 11 of the TRAI Act, 1997, as it relates to broadcasting services, has been rejected. The court found that section 11(2) empowers the authority to fix rates and regulate telecommunication services, including broadcasting, in the public interest (!) .
The challenge to the principal 2017 Regulations and Tariff Order, as well as the 2020 Amendments, was largely dismissed. The court upheld that these regulations and orders are within the powers conferred by the TRAI Act and are aimed at ensuring a level playing field, promoting competition, and protecting consumer interests (!) .
The court emphasized that airwaves are public property and their regulation is necessary to prevent monopolization and ensure public interest. This distinction from print media is well-recognized, and restrictions on broadcasting are permissible under the constitutional framework, provided they are reasonable and in the interest of society (!) (!) .
The court reiterated that the regulations and tariffs are the result of extensive consultation, transparency, and application of the authority’s expertise. The process involved stakeholder comments, consultation papers, workshops, and rational decision-making, which supports their reasonableness and validity (!) (!) .
The specific provisions challenged, such as restrictions on bouquet formation, price caps, and discount limits, were found to be reasonable restrictions in the public interest. The court acknowledged that these measures aim to prevent manipulative practices, promote fair competition, and protect consumer rights (!) (!) (!) .
The court clarified that the regulation of pricing and formation of bouquets by broadcasters and DPOs is within the regulatory powers of TRAI, especially given the scarcity and public ownership of airwaves. The restrictions imposed do not infringe on the fundamental rights under Articles 19(1)(a), 19(1)(g), or 21, as they are justified as reasonable and proportionate measures (!) .
The court rejected the argument that Tariff Orders are merely administrative and do not constitute law, affirming that they are legislative in character and enjoy the presumption of constitutionality. They are subject to judicial review only on specific grounds such as arbitrariness or violation of constitutional provisions (!) (!) .
The issue of transparency was highlighted, with the court emphasizing that the authority must ensure transparent processes, including stakeholder consultation and detailed reasoning for decisions. The absence of consultation on certain aspects, such as the second twin condition (Average Test), was deemed arbitrary and contrary to the statutory mandate (!) (!) .
The court acknowledged that economic regulation involves complex, technical, and empirical judgments, and courts should exercise restraint, respecting the expertise and discretion of the regulatory authority. The scope of judicial review is limited to checking rationality, transparency, and adherence to procedural requirements (!) (!) .
Overall, the court disposed of the petitions, affirming the validity of the regulations and amendments, with the exception of the specific arbitrary provision related to the second twin condition (Average Test), which was set aside for violating transparency requirements (!) .
These points encapsulate the court’s reasoning, emphasizing the balance between regulation in the public interest and fundamental rights, and underlining the importance of procedural fairness, transparency, and the expertise of regulatory authorities.
ORDER :
1. All the above nine Writ Petitions challenge the constitutional validity of the provisions of (i) the Telecommunication (Broadcasting and Cable) Services Interconnections (Addressable Systems) (Second Amendment) Regulations, 2020, (ii) Telecommunication (Broadcasting and Cable) Standard of Quality of Service and Consumer Protection (Addressable Systems) (Third Amendment) Regulations 2020 (hereinafter referred to as “2020 Regulations Amendments”) and (iii) the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff (Second Amendment) Order, 2020 (hereinafter referred to as “2020 Tariff Order Amendment”) issued in exercise of powers under the Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as the TRAI Act). The impugned 2020 Regulations Amendments and impugned 2020 Tariff Order Amendment are hereinafter collectively referred to as the “impugned 2020 Amendments.”
1.1 Out of the nine Writ Petitions, five Writ Petitions, being Writ Petition (L) Nos.116, 124 to 127 of 2020 also challenge (i) the constitutional validity of the provisions of (i) the Telecommunication (Broadcasting and Cable) Services Interconnections (Addressable Systems) Regulations, 2017, (ii) Telecommunication (Broadcasting and Cable) Standard of Quality of Service and Consumer Protection (Addressable Systems) Regulations 2017 (hereinafter referred to as “principal 2017 Regulations”) and (iii) the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 (hereinafter referred to as “principal 2017 Tariff Order”). The impugned principal 2017 Regulations and the impugned principal 2017 Tariff Order are hereinafter collectively referred to as the “impugned principal 2017 provisions.”
1.2 Five Writ Petitions being Writ Petition (L) Nos. 124 to 127 of 2020 (filed by a common Advocate) and Writ Petition No. 120 of 2020 also challenge the constitutional validity of section 11 of the TRAI Act, so far as it relates to broadcasting services. The reference to Petitioners in this judgment may be construed accordingly to mean the Petitioners in the respective Petitions.
2. The Writ Petitions [barring Writ Petition (L) No. 116 of 2020] are filed by broadcasters/association of broadcasters. Broadcasters obtain down-linking permission for its Television channels from Central Government to provide programming services. The broadcasters send signals to Multi System Operator (hereinafter referred to as “MSO”) who in turn send the signals to Local Cable Operators (hereinafter referred to as “LCO”) from which it is beamed to the ultimate consumer watching the Television programmes. The broadcasters pay distribution fee and carriage fee for transportation of such signals. Where Direct to Home (DTH) services are provided, instead of MSO, the signals are sent directly via satellite to the consumer (Tata Sky, for instance). Insofar as Writ Petition (L) No. 116 of 2020 is concerned, it is filed by the Film and Television Producers Guild of India Ltd. an association, whose members are producers, who also claim to be affected as their principal source of revenue of content/programmes is the revenue received from broadcasters for supply of content/programmes to such broadcasters and are stated to be essential constituents in the television broadcasting and distribution industry. Some of the broadcasters are stated to be producers also. Respondent No. 1 is the Union of India. Respondent No. 2 is the Telecom Regulatory Authority of India, which is an Authority established under the TRAI Act to exercise powers and functions under the said Act.
3. The issues raised in the Petitions are set out hereunder:
The judgment asserts that exclusivity in distributor agreements that overlap with competitive relationships can lead to discrimination, violating non-discriminatory access requirements under applicab....
TRAI is not obligated to requisition information from TSPs regarding individual complaints, as its authority is limited to regulatory functions under the TRAI Act.
The final decision on the terms and conditions of a license to a service provider rests with the Central Government, and the TDSAT has the authority to deal with disputes arising under the TRAI Act.
Regulatory bodies are mandated to consult affected stakeholders before altering significant tariff orders, as per statutory provisions ensuring transparency and adherence to natural justice.
The taxation of DTH services under the Kerala Tax on Luxuries Act is valid, but excluding cable operators from the tax is discriminatory and violates Article 14.
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