Plea In Kerala HC Against TRAI Orders Regulating Capacity Fee, Basic Service Tier And Discounting Offered By Broadcasters [Read Petition]

It states that a perusal of the functions of TRAI would make it clear that it possesses powers to regulate the inter connection or the relationship between the service providers. However, its powers do not extend to prescribe the imposition of any fee on consumers.

The plea moved by three residents of Kerala, also consumers of cable television networks particularly challenges:

1. the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 (Ext. 3);
2. the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 (Ext. 4);
3. the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) (Second Amendment) Regulations, 2020 (Ext. 5); and
4. the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff (Second Amendment) Order, 2020 (Ext. 6),

as being violative of their fundamental right to obtain information through their cable television subscriptions.

Capacity Fee

The Petitioners have submitted that though the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations 2017 define network capacity fee, they do not contain any clause providing for "levy of network capacity fee". Thus, it is contended that there is no clause in the Regulations empowering the extraction of network capacity fee and that is being charged without sanction of law.

"Ext. P3 does not contain any clause providing for the extraction of network capacity fee from the subscribers. Thus, network capacity fee is not being levied or extracted from a consumer on the strength of a subordinate legislation or under a rule-making power. For a subscriber who only wants to subscribe to a few select channels, the imposition of a network capacity fee amounts to a levy for which there is no quid pro quo rendered by the distributor," the plea states.

Basic Service Tier

"Basic Service Tier" is a package of free-to-air channels offered by a cable operator to a subscriber with an option to subscribe for a single price.

Thus, the subscribers have a legal right to have the option of subscribing or not subscribing to the basic service tier package which mandatorily has to be offered by the distributor. (See S. 4-A of the Cable Television Networks (Regulation) Act, 1995)

Nevertheless, the Petitioner pointed out, the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff (Second Amendment) Order, 2020 has done away with this option.

They submitted,

"The legal prescription contained in the Cable Television Networks (Regulation) Act, 1995 cannot be deleted or amended by Ext. P6 since an executive instruction issued by TRAI, that too while exercising power under the Telecom Regulatory Authority of India Act, 1997, cannot override or indirectly amend a statutory prescription contained in the Cable Television Networks (Regulation) Act, 1995."

Discounting Offered By Broadcasters

Lastly, the Petitioners have objected to the restrictions imposed on the quantum of discount that could be offered by a broadcaster.

Notably, Regulation 7 (4) of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations 2017 sets a cap on the amount of discounting that could have been offered by broadcasters.

In this light, it has been submitted that,

"curtailing the right of the broadcaster in this manner amounts to infringing the right of the petitioners herein to receive the benefit that the broadcaster was willing to give, and the same constitutes a violation of the rights of the petitioners under Article 19 (1) (a), especially since the restriction imposed by TRAI on the extent of discount that can be offered by broadcasters is arbitrary and not based on any valid considerations or relevant materials."

The crux of the argument involved herein is that such major changes regarding imposition of fees can only be made by the operation of a law and not through executive orders.

"Fundamental right of the petitioners to obtain information through their cable television subscriptions can only be restricted by the operation of a law and not through Exts. P3, P4, P5, and P6, which do not have the colour of law. Moreover, TRAI has not provided transparent and clear reasons for the steps it has taken in Exts. P3, P4, P5 and P6 or engaged with or considered the objections raised by subscribers to the same," the Petitioner submitted.

Counsel for Petitioners: Santhosh Mathew, Arun Thomas, Jennis Stephen, Vijay V. Paul, Karthika Maria, Veena Raveendran, Anil Sebastian Pulickel, Divya Sara George, Jaisy Elza Joe, Abi Benny Areeckal and Leah Rachel Ninan

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