IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
20. 12/2013 CORAM THE HON'BLE MR.JUSTICE V.DHANAPALAN M.P.No.1 of 2013 in W.P.No.34213 of 2013 TAMIL NADU ARASU CABLE TV CORPORATION LTD., REP. BY ITS GENERAL MANAGER, 11/22 MANGADU SAMY STREET, NUNGAMBAKKAM, CHENNAI34 VS THE MINISTRY OF INFORMATION AND BROADCASTING, REP. BY ITS SECRETARY, ROOM NO.655 5TH FLOOR A WING, SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI110001. THE TELECOM REGULATORY AUTHORITY OF INDIA, REP. BY ITS SECRETARY, MAHANAGAR DOOR SANCHAR BHAWAN, (NEXT TO ZAKIR HUSSAIN COLELGE), JAWAHARLAL NEHRU MARG NEW DELHI ORDER
Heard Mr.A.L.Somayaji, learned Advocate General appearing for the writ petitioner, and, Mr.P.Wilson, learned Additional Solicitor General of India, appearing for Mr.C.Kanagaraj, learned counsel for the first respondent and for Mr.Devendran, learned counsel for the second respondent.
2. Tamil Nadu Arasu Cable TV Corporation Limited, an instrumentality of the State of Tamil Nadu, has come before this Court, praying for a mandamus, forbearing the second respondent from taking any action against the petitioner pursuant to and in terms of the Press Release No.91/2013, dated 10.12.2013, pending consideration of the petitioner's DAS licence applications, dated 05.07.2012 and 23.11.2012, with the first respondent.
3. Pending the above Writ Petition, M.P.No.1 of 2013 has been filed, praying for an order of injunction, restraining the second respondent from interfering with the transmission of Cable TV Signals by the petitioner Corporation in Chennai Metro area.
4. Learned Advocate General would strenuously contend that the petitioner Corporation, as a legal entity, has a fundamental right under Article 19 (1) (g) of the Constitution of India, to establish a Cable TV Corporation after following necessary requirements, to which it is their wisdom to approach the authorities, including the Government of India, for necessary permission to move further for execution of the programmes. Accordingly, after establishment of the Corporation, following the amendment to the Cable Television Networks Rules,1994, by way of Cable Television Networks (Amendment) Rules,2012, which came into effect from the year 2012, as there was a requirement of licence for Digital Addressable System (DAS), the petitioner being a Multi System Operator (MSO), submitted an application to the Union of India, first respondent herein, on 05.07.2012 and, thereafter, the reminders on 15.10.2012, 26.10.2012, 06.12.2012 and 07.02.2013, requesting to issue DAS Licence to them. As there was no response, the petitioner filed two Writ Petitions in W.P.Nos.7067 of 2013 for Chennai and 7068 of 2013 for rest of Tamil Nadu on the file of this Court and the same are pending consideration. As there is no counter filed by the respondent in those matters, the said Writ Petitions along with a batch of writ petition challenging the digitisation have been tagged with W.P.Nos.29651 of 2012, 33922 of 2012 etc. Since the petitioner had licence for MSO, they continued to give analogous signals as per the erstwhile regulations and they have taken steps to get the DAS licence as per the new regulations.
5. That being so, now, the second respondent has come out with a Press Release No.91/2013, dated 10.12.2013, conveying that in Chennai Metro area, the transmission of analog cable TV signal is illegal and digitisation is to be implemented immediately and further informing all MSOs and local Cable TV operators and consumers that, in case digitisation is not done, cable TV connections would be switched off any time. Apprehending that the said Press Release will be given effect at any time, the petitioner is before this Court with the present Writ Petition.
6. Learned Advocate General, pointing out the averments made by the first respondent in an earlier Writ Petition, would submit that though the first respondent had rejected the proposals from some State Governments for running TV channels as a policy, the decision in respect of the petitioner is so far not arrived at and that it is a policy matter of convening the Inter-ministerial Committee of the first respondent and then a decision has to be arrived at and, therefore, the stand taken by the second respondent cannot be put against the petitioner, and, if it is so implemented, it will lead to severe hardship and damage to the petitioner. The learned Advocate General relied upon clauses 2 (e) of The Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations,2012; 2 (e) and 4-A of The Cable Television Networks (Regulation) Act,1995 and 11-A and 11-C of the Cable Television Network Rules,1995, as to the procedure contemplated for transmission of programmes through DAS. The said definitions read as under : ".2 (e). ".a-la-carte rate". means the rate at which a standalone individual channel is offered to the distributor of TV channels or to the subscriber, as the case may be.". ".2 (e).- ".person". means - (i) an individual who is a citizen of India; (ii) an association of individuals or body of individuals, whether incorporated or not, whose members are citizens of India; (iii) a company as defined in section 3 of the Companies Act,1956 (1 of 1956)". ".4-A.- Transmission of programmes through digital addressable system, etc. (i) Where the Central Government is satisfied that is necessary in the public interest so to do, it may, by notification in the Official Gazette, make it obligatory for every cable operator to transmit or re-transmit programmes of any channel in an encrypted form through a digital addressable system with effect from such date as may be specified in the notification and different dates may be specified for different States, cities, towns or areas, as the case may be. Provided that the date specified in the notification shall not be earlier than six months from the date of issue of such notification to enable the cable operators in different States, cities, towns or areas to install the equipment required for the purposes of this sub-section. (2) The Central Government may prescribe appropriate measures and take such steps as it may consider necessary for implementation of the notification issued under sub-section (1). (3) If the Central Government is satisfied that it is necessary in the public interest so to do, and if not otherwise specified by the Authority, it may direct the Authority to specify, by notification in the Official Gazette, one or more free-to-air channels to be included in the package of channels forming basis service tier and any or more such channels may be specified, in the notifications, genre-wise for providing a programme mix of entertainment, information, education and such other programmes and fix the tariff for basic service tier which shall be offered by the cable operators to the consumers and the consumer shall have the option to subscribe to any such tier: Provided that the cable operator shall also offer the channels in the basic service tier on a la carte basis to the subscriber at a tariff specified under this sub-section. (4) The Central Government or the Authority may specify in the notification referred to in sub-section (3), the number of free-to-air channels to be included in the package of channels forming basic service tier for the purposes of that sub-section and different numbers may be specified for different States, cities, towns or areas, as the case may be. (5) It shall be obligatory for every cable operator to publicise the prescribed information including but not limited to subscription rates, standards of quality of service and mechanism for redressal of subscribers grievances in such manner and at such periodic intervals as may be specified by the Central Government or the Authority for the benefit of the subscriber. (6) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals or cable television network : Provided that the subscriber shall use a digital addressable system to be attached to his receiver set for receiving programmes transmitted on any channel. (7) Every cable operator shall provide such information relating to its cable services and networks in such format and at such periodic intervals to the Central Government or the State Governments or the Authority or their authorised representatives, as may be specified by them from time to time. (8) All actions taken by the Central Government or the Authority in pursuance of the provisions of this section as they stood immediately before the 25th day of October,2011 shall contine to remain in force till such actions are modified as per the provisions of this Act. Explanation - For the purposes of this section,- (a) ".addressable system". means an electronic device (which includes hardware and its associated software) or more than one electronic device put in an integrated system through which signals of cable television network can be sent in encrypted form, which can be decoded by the device or devices, having an activated Conditional Access System at the premises of the subscriber within the limits of authorisation made, through the Conditional Access System and the subscriber management system, on the explicit choice and request of such subscriber by the cable operator to the subscriber; (b) ".basic service tie". means a package of free-to-air channels to be offered by a cable operator to a subscriber with an option to subscribe, for a single price to subscribers of the area in which his cable television network is providing service; (c) ".encrypted"., in respect of a signal of cable television network, means the changing of such signal in a systematic way so that the signal would be unintelligible without use of an addressable system and the expression ".unencrypted". shall be construed accordingly; (d) ".free-to-air channel"., in respect of a cable television network, means a channel for which no subscription free is to be paid by the cable operator to the broadcaster for its retransmission on cable; (e) ".pay channel". in respect of a cable television network, means a channel for which subscription fee is to be paid to the broadcaster by the cable operator and due authorisation needs to be taken from the broadcaster for its retransmission on cable; (f) ".subscriber management system". means a system or device which stores the subscriber records and details with respect to name, address and other information regarding the hardware being utilised by the subscriber, channels or bouquets of channels subscribed to by the subscriber, price of such channels or bouquets of channels as defined in the system, the activation or deactivation dates and time for any channel or bouquets of channels, a log of all actions performed on a subscriber's record, invoices raised on each subscriber and the amounts paid or discount allowed to the subscriber for each billing period.". ".11-A.- Application for registration as a multi-system operator.- (1) For the purpose of operation of cable television network services with digital addressable system in a notified area, a person who desires to provide such service shall make an application for registration as multi-system operator to the registering authority in Form 6. (2) Every application under sub-rule (1) shall be accompanied by - *a processing fee of rupees one lakh; * declaration in Form 2.". ".11-C.- Registration as multi-system operator.- (1) On being satisfied that the applicant fulfils the eligibility criteria specified under rule 11-B and the requirements of rule 11-A, the registering authority shall, subject to the gterms and conditions specified in rule 11-D and the security clearance from the Central Government, issue certificate of registration.".
7. Based on the above provisions, the learned Advocate General would submit that the petitioner has complied with all the requirements, but the application of the petitioner for registration of DAS is still pending with the first respondent and, under the circumstances, when the first respondent has not taken any decision on the application of the petitioner and pending consideration of the same if the second respondent is allowed to go in for such a stringent action of disconnecting the signals, the innocent subscribers will be put to irreparable loss and damage and, as such, pending consideration of the application of the petitioner with the first respondent, the petitioner is entitled for protection. The learned Advocate General, by also pointing out the stand of the first respondent in the reply to the petition pending before the Telecom Disputes Settlement and Appellate Tribunal, New Delhi, in paragraph 23, would submit that it shall be relevant to point out in the event the government comes out with divergent views from what has been recommended by TRAI or requires certain modifications, then as per the provisions of TRAI Act (fifth proviso under Section 11 (1), it would be mandatory to refer the matter to TRAI with suggested modifications for its recommendations. At present, the application for grant of MSO registration to operate in the DAS notified areas under the provisions of Cable Television Networks Rules,1994, submitted by Arasu Cable, is directly linked with the outcome of the final view of the IMC which the Ministry has to consider to arrive at an acceptable view on the recommendations of TRAI dated 12.11.2008 and 28.12.2012 regarding entry of government entities in the broadcasting sector. He would also point out that the matter is under consideration before IMC with regard to grant of registration to Arasu Cable and the issue of implementation of DAS in Chennai is sub judice before the High Court.
8. Per contra, according to Mr.P.Wilson, learned Additional Solicitor General of India, as per CAS Regulations contained in Rule 11 of the Cable Television Networks Rules,1994, Multi System Operators (MSOs), who distribute TV channels obtained from broadcasters to local cable operators (LCOs) for onward re-transmission to the end consumers, were required to take permission from the Ministry of Information and Broadcasting to operate in CAS notified areas; accordingly, the petitioner, which is a Government of Tamil Nadu undertaking company, incorporated under the Companies Act,1956, applied for MSO permission to the Ministry on 26.11.2007, to operate in CAS areas of Chennai, and the Ministry had rejected proposals from State Governments for running TV channels as a policy; in 1999, Government of West Bengal had written to the Ministry to launch a TV channel; the matter was considered by the Ministry and a reply was sent on 18th November 1999 rejecting the request; subsequently, the Ministry received another proposal from the Government of Punjab for setting up a TV Broadcasting Station in collaboration with a foreign broadcast company i.e., Globe Satellite Communication and a similar rejection was made thereto on the ground that as per the extant policy, State Governments were not permitted to set up TV channels or broadcasting stations; even Doordarshan and All India Radio which were earlier part of the Central Government were distanced from the Central Government and brought under a statutory body viz., Prasar Bharati and another request was made by the Government of Andhra Pradesh for providing for compulsory distribution of Ku Band signals of Mana TV through commercial cable operators within the State and the said request was rejected initially on 20th October 2005 and again on 5th March 2007; while considering the case for grant of permission to the petitioner herein, the Ministry held discussions with Law Ministry and TRAI on the entire issue of whether the State Governments can be permitted to enter into broadcasting activities which may include starting a broadcast channel or entering into distribution platforms like cable services and, ultimately, granted permission to the petitioner as per the second amendment rules 2006 as an MSO and, in that regard, a reference was sent to TRAI on 27.12.2007; upon the amendment of the Cable Television Networks (Regulation) Act,1995, in 2011, the first respondent is mandated to implement DAS in the Cable TV System in a phased manner with complete switch off of Analogue Cable Services and since the regulatory regimes for DAS and CAS are different, Ministry also carried out necessary amendment in the Cable Television Networks Rules,1994, by way of Cable Television Networks (Amendment) Rules,2012, which were notified on 28.04.2012 and the said amendment, inter alia, includes new system for the registration procedure for MSOs for providing services in DAS notified areas, and, therefore, without obtaining DAS licence, it is not incumbent on the petitioner Corporation to disseminate the signals contrary to law.
9. It is not in dispute that the petitioner Corporation is a Government of Tamil Nadu undertaking and they have moved the Union of India/first respondent, seeking for permission for Multi System Operator and the same was granted on 02.04.2008, but, as per the amended rules, which came into effect from 28.04.2012, every Multi System Operator had to apply for DAS licence in a CAS area and, accordingly, the petitioner has submitted an application to the first respondent on 05.07.2012. When that be so, it is not known to this Court as to why the first respondent has not taken any decision so far on the application of the petitioner. At the same time, the petitioner Corporation, being a State instrumentality and having onerous responsibility, having applied, has not taken any steps to ensure that there shall be a licence in their favour. Though the petitioner has filed the writ petition for a mandamus to direct the first respondent to consider the request, till date, there is no decision by the first respondent. In the meantime, TRAI, the second respondent herein, following the amended rules and regulations, has come out with the impugned Press Release, stating that there could not be any transmission of Analogous Signals by Multi System Operators, without obtaining DAS licence. Hence, in the absence of any licence in their favour, the petitioner has not made out a prima facie case to grant interim injunction against TRAI, the second respondent, as prayed for. However, looking into the circumstances that there was grant of permission to the petitioner for Multi System Operations and considering that the petitioner has taken diligent steps subsequent to the amendment of the rules and applied to the first respondent for DAS licence, this Court feels that the first respondent is not justified in keeping the matter pending without arriving at any decision. When the authorities of the Union of India and the State instrumentality are not in a position to take any decision on granting or receiving the DAS licence as the case may be, the ultimate sufferers are the innocent subscribers. Therefore, I am of the considered opinion that the innocent subscribers cannot be put to hardship and irreparable loss and, as such, there cannot be any disconnection of signals to the subscribers by the authorities.
10. Miscellaneous Petition is disposed of with the above direction.
11. However, keeping in mind the responsibility of the State, petitioner herein, and the obligation of the Union of India, first respondent herein, in the interest of justice, the first respondent is directed to come out with a decision either way on the application made by the petitioner Corporation at the soonest possible time.
12. At this juncture, Mr.AR.L.Sundaresan, learned Senior Counsel for the impleading petitioner/proposed third respondent, would submit that he is a private operator having obtained DAS licence and is operating in the field and that because of the lis pendence between the petitioner and the respondents, he cannot be put to any kind of inconvenience and his operational system has to be protected, which submission, in the opinion of this Court, holds good.
13. Post the Writ Petition after four weeks for counter and disposal. Index : Yes 20-12-2013 Internet : Yes dixit Note to Registry : Issue copy of this order on 26.12.2013 V.DHANAPALAN,J.
dixit M.P.No.1 OF2013in W.P.No.34213 OF201320-12-2013 W.P.No.34213 OF2013Tamil Nadu Arasu Cable TV Corporation Ltd., Chennai. ... Petitioner -vs- 1.The Ministry of Information & Broadcasting, represented by its Secretary, New Delhi. 2.The Telecom Regulatory Authority of India, represented by its Secretary, New Delhi. ... Respondents For petitioner : Mr.A.L.Somayaji, Advocate General, for Mr.Abdul Saleem For respondents : Mr.P.Wilson, Addl.Solicitor General of India, for Mr.C.Kanagaraj for R-1 and for Mr.Devendran for R-2.