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2015 Supreme(Online)(TDSAT) 7
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Kuldip Singh, J
Indian Broadcasting Foundation – Appellant
Versus
Telecom Regulatory Authority of India – Respondent
Appeal No.7(C) of 2014
For the Appellants/Petitioners:Mr. Amit Sibal, Sr.Advocate, Mr. Abhishek Malhotra, Advocate, Mr. Kunal Tandon, Advocate, Mr. Angad Singh Dugal, Advocate, Ms. Payal Kakra, Advocate, Mr. Namit Suri, Advocate
For the Respondent No.1 (TRAI):Mr. Mansoor Ali Shoket, Advocate
For Respondent No.2:Mr. Ramji Srinivasan, Sr.Advocate, Mr. Sameer Parekh, Advocate
For Respondent No.3:Mr. Ravi Sikri, Sr.Advocate
Hotels and commercial establishments qualify as consumers under the TRAI Act, necessitating distinct tariff regulations separate from ordinary subscribers, thus ensuring equitable treatment.
Headnote:(A) Telecom Regulatory Authority of India Act, 1997 - Section 14A (2) - Telecommunication (Broadcasting and Cable) Services Tariff Orders - Amendments challenged regarding treatment of commercial subscribers - Court identified issues related to subscriber categorization, concluded that hotels/restaurants are consumers and entitled to the same tariff protection as ordinary subscribers, contradicting the Tribunal's decision. (Paras 19, 35, 54)
(B) Judicial Review - The Tribunal's approach to distinguishing between commercial and ordinary subscribers deemed erroneous, reflecting a misunderstanding of the Supreme Court's directions. (Paras 34, 45)
Facts of the case:
The appellants, an association of broadcasters, challenged TRAI's amendments that treated commercial subscribers equally with ordinary subscribers, arguing against the equalization of inherently unequal groupings and previous assertions of subscriber definitions by TRAI spanning over a decade.
Findings of Court:
The impugned tariff orders were set aside, asserting that commercial subscribers require distinct treatment due to their usage context compared to ordinary subscribers.
Issues: The main issues include whether hotels/restaurants qualify as subscribers and if the tariff orders apply to commercial establishments.
Ratio Decidendi: The court ruled that under the TRAI framework, a distinction must exist between domestic and commercial subscribers, emphasizing the need for precise tariff regulations tailored for commercial entities.
Result: Appeals allowed.
| Table of Content |
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| 1. court's analysis on definitions and regulations. (Para 20) |
ORDER
By AftabAlam, Chairperson –
An Association of television broadcasters (appellant no. 1) and two individual broadcasters (appellants 2 and 3) have filed this appeal under section 14A (2) of the Telecom Regulatory Authority of India Act , 1997 (TRAI Act) challenging (i) the Telecommunication (Broadcasting and Cable) Services (Second) Tariff (Twelfth Amendment) Order 2014 dated 16 July 2014 and (ii) the Telecommunications (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff (Fourth Amendment) Order 2014 dated 18 July 2014 by which similar amendments were made in the Telecommunication (Broadcasting and Cable) Services(Second) Tariff Order 2004 (6 of 2004) dated 1 October 2004 (relating to non-addressable or analogue systems) and the Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order 2010 (1 of 2010) dated 21 July 2010 (relating to addressable systems) respectively. The impugned amendments introduce mainly three changes; first, the broadcaster is no longer allowed to provide its channels directly to a subscriber, be it an “ordinary subscriber” or a “commercial subscriber”; secondly the terms “commercial establishment” and “commercial subscriber” are defined elaborately and classified separately from “ordinary subscriber” and thirdly, though defined and classified separately from “ordinary subscriber”, for the purpose of charges for receiving supply of channels, the very large and highly heterogeneous body of “commercial subscriber” is en-block put completely at par with the “ordinary subscriber”. The appellants are aggrieved by the amendments in so far as the commercial subscriber is put at par with the ordinary subscriber and contend that as a result of the impugned amendments, the tariff orders treat as equal, groups of subscribers that are inherently unequal and are also so recognized in their different definitions in the tariff orders.
The issues arising in this appeal go back to a period of about ten years over which the matter has engaged the attention of both this Tribunal and the Supreme Court and the tariff orders framed by the Telecom Regulatory Authority of India (TRAI) and (amended from time to time) have come under judicial scrutiny more than once.
In a writ petition relating to controversies arising at the time of introduction of the conditional access system regime in the four metropolises, including Delhi, the Delhi High Court by an order passed on 26 December, 2003 allowed the implementation of the regime on an experimental basis for three months, observing that it would give further directions in the matter on receipt of inputs regarding the working of the regime. At that stage the Central Government issued notification no. 39, dated 9 January 2004 comprising S.O. nos. 44 and 45. By S.O. 44 the broadcasting services and cable services were brought within the purview of telecommunication services as defined under section 2 (k) of the TRAI Act and by S. O. 45 the Telecom Regulatory Authority of India (TRAI) was assigned additional functions in respect of broadcasting services and cable services empowering it inter alia “to specify standard norms for, and periodicity of, revision of rates of pay channel, including interim measures”. Within six days of issuance of the notification, TRAI issued a notification on 15 January 2004 promulgating The Telecommunication (Broadcasting and Cable) Services Tariff Order 2004(the First tariff order). This tariff order was directed to cover tariffs for all broadcasting and cable services throughout the country and in clause 2 provided as under:
“2. Charges payable by
(a) Cable subscribers to cable operator;
(b) Cable operators to Multi Service Operators/Broadcasters (including their authorized distribution agencies); and (c) Multi Service Operators to Broadcasters (including their authorized distribution agencies) prevalent as on 26th December
