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2014 Supreme(Online)(TDSAT) 86
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
MR. AFTAB ALAM, CJ, MR. KULDIP SINGH, J
Dish TV India Ltd. – Appellant
Versus
Telecom Regulatory Authority of India – Respondent
Appeal No. 2 (C) of 2013 | Appeal No. 3 (C) of 2013
For the Appellants/Petitioners:Mr.Aman Lekhi,Sr. Advocate, Mr.Vivek Sarin,Advocate, Mr.Tejeveer Singh Bhatia, Advocate, Mr.Ashok Kumar Singh,Advocate, Mr.Upender Singh Thakur,Advocate, Mr.Yatin Grover,Advocate
For the Respondents:Mr. S. Ganesh,Sr.Advocate, Mr.Sandeep S. Ladda, Advocate, Mr.Soumik Ghoshal, Advocate, Mr. Saket Singh, Advocate
The Customer Premises Equipment, including set-top boxes, are integral to telecommunications services, justifying TRAI's authority to regulate their tariffs. Inadequate consideration of input led to the setting aside of the Tariff Order.
Headnote:(A) Telecom Regulatory Authority of India Act, 1997 - Section 11 - Telecommunication (Broadcasting and Cable) Services (Sixth) (The Direct to Home Services) Tariff Order, 2013 - Jurisdiction of TRAI to regulate tariff for Customer Premises Equipment and the definitional parameters therein were challenged by DTH operators - Courts found that Customer Premises Equipment, including set-top boxes, are inseparable from the telecommunication service provided and thus under the jurisdiction of TRAI - Impugned Tariff Order was set aside due to failure to adequately address input from appellants and consider essential cost elements - New tariff order may be issued with proper considerations. (Paras 21, 38)
Facts of the case:
Appellants, major DTH service providers, contest the TRAI's Tariff Order that mandates them to offer set-top boxes at specified rates, claiming jurisdiction over tariff setting is exceeded and lacks legal grounding. (Para 1)
Findings of Court:
Court observed that the set-top box is integral to service delivery and acknowledged inadequate consideration of inputs in the Tariff Order, leading to eventual nullification of the order. (Paras 16, 38)
Issues: The court evaluated TRAI's jurisdiction over regulating STB tariffs and the intrinsic relationship between equipment and the service provided. (Para 11, 16)
Ratio Decidendi: The court concluded that set-top boxes served as essential tools for delivering telecommunication services, thus falling under TRAI's jurisdiction for tariff regulation, and highlighted the failure to consider relevant cost elements in issuing the Tariff Order. (Paras 21, 39)
Result: The previous Tariff Order was set aside, allowing TRAI to issue a new order with attention to the necessary considerations raised by the appellants. (Para 38)
| Table of Content |
|---|
| 1. challenges against the tariff order by the appellants. (Para 1 , 2 , 3 , 4) |
| 2. issues regarding trai's jurisdiction and tariff fixing for stbs. (Para 6 , 7 , 8 , 9 , 10 , 11) |
| 3. arguments regarding the technical and commercial aspects of dth services. (Para 12 , 13 , 14 , 15) |
| 4. finding that stbs are integral to dth services. (Para 16 , 17 , 18) |
| 5. the court's ultimate decision regarding the tariff order. (Para 19 , 20 , 21 , 22) |
ORDER
Kuldip Singh:
The present appeals have been filed challenging the Telecommunication (Broadcasting and Cable) Services (Sixth) (The Direct to Home Services) Tariff Order, 2013 (No. 2 of 2013) (hereinafter referred to as Tariff Order) dated 27.5.2013 issued by Telecom Regulatory Authority of India (TRAI).
2. The appellants are engaged in the business of providing Direct to Home (DTH) services under a license issued by Ministry of Information and Broadcasting, Government of India under Section 4 of the Indian Telegraph Act , 1885.
Facts of the case
3. The Tariff Order has been issued by TRAI on 27.05.2013 in exercise of powers conferred by sub-clauses (ii), (iii), (iv) and (v) of clause (b) of sub-section (1), and sub-section (2) of section 11 of the Telecom Regulatory Authority of India Act , 1997 (24 of 1997), read with notification No. 39 dated 9 th January 2004 by the Government of India, Ministry of Communication and Information Technology (Department of Telecommunications). Sub-clauses (ii), (iii), (iv) and (v) of clause (b) of sub-section (1), and sub-section (2) of section 11 of the Telecom Regulatory Authority of India Act , 1997 (24 of 1997) are as under :
“(ii) notwithstanding anything contained in the terms and conditions of the license granted before the commencement of the Telecom Regulatory Authority (Amendment) Act,2000, fix the terms and conditions of inter-connectivity between the service providers;
(iii) ensure technical compatibility and effective inter-connection between different service providers.
(iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services;
(v) lay down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication services;
(2) Notwithstanding anything contained in the Indian Telegraph Act , 1885(13 of 1885), the Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India;
Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid the Authority shall record the reasons therefor.”
4. Clause 4 of the impugned Tariff Order prescribes tariff for supply and installation of Customer Premises Equipment. The same is as under :
“4. Tariff for supply and installation of Customer Premises Equipment.---
(1) Every direct to home operator shall, without prejudice to the provisions of the Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010 (No.1 of 2010), offer to every ordinary subscriber the standard tariff package, for supply and installation of the Customer Premises Equipment, conforming to the Indian Standard, if any, set by the Bureau of Indian Standard, specified in the Schedule.
(2) In addition to the option available under the Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010 (No.1 of 2010), the ordinary subscriber shall have option to acquire the Customer Premises Equipment at the rate and the terms and conditions specified in the Schedule and the direct to home op
