Provisions Of TRAI Act Must Be Viewed In Light Of Protection Of Interests Of Both Consumers And Broadcasters; TRAI Tells Bombay HC

Division bench of Justice SC Dharmadhikari and Justice RI Chagla did not grant any interim relief to the petitioners and gave them a week in order to file their rejoinder to TRAI's affidavit.

As per TRAI, the new amendments were brought in to protect the interest of consumers. The price of pay channels has been capped at Rs. 12 (from Rs 19) and discounting on a bouquet of channels (which was earlier as high as 80 per cent) has been capped at 33 per cent, which means that the consumer would no longer be obliged to buy bouquets created by the broadcasters.

Also, unlike earlier, when consumers had access to 100 channels, TRAI has mandated that consumers be offered 200 Free To Air (FTA) channels at a base price of Rs.153, which is less than the previous base price.

Challenges to TRAI's Decision

The main petition has been filed by the Indian Broadcasting Foundation, a unified representative body of television broadcasters in India. All leading broadcasters like Sony Pictures, Star India owned by Walt Disney, ZEE Entertainment, TV18 and Producers Guild of India are amongst the petitioners.

The petitioners challenged the following regulations and tariff order as being ultra vires to Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India-

Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) (Second Amendment) Regulations 2020 dated January 1, 2020 and Telecommunication (Broadcasting and Cable) Services Quality of Service and Consumer Protection (Addressable Systems) (Third Amendment) Regulations, 2020 dated January 1, 2020.

Apart from this the Telecommunication (Broadcasting and Cable) Services (Eight) (Addressable Systems) Tariff (Second Amendment) Order, 2020.

TRAI's Affidavit

The petitioners have argued that the new changes will negatively impact the sector's growth. However, TRAI's 114-page affidavit states-

"We are of the view that the provisions of the TRAI Act have to be viewed in the light of protection of interests of both service providers and consumers. This being so, it is clear that no constricted meaning can be given to the provisions of the act."

The impugned regulations and tariff orders have been undertaken to frame a comprehensive code for the Broadcasting Sector, so as to ensure that the consumer gets the benefit of a meaningful and informed choice and the inter-se relationship between the Broadcasters and the Distributors is based on principles of non-discrimination and transparency."

Further, the authority explained how bouquet channels being pushed by broadcasters limited the choice of total channels for the consumers and how the new amendments will be beneficial for the consumers-

"The impugned provisions are expected to discourage anti-consumer practice of pushing bouquets and ensure that DPO do not have monetary incentives to push bouquets, the broadcasters are permitted to offer penetration-based incentives only for a-la-carte channels.

Overall analysis of the present scenario leads to conclusion that the offering of bouquets by broadcasters, as is being done now, was generally depriving consumers of their basic right to choose channels and have been designed to better serve to the commercial interest of broadcasters.

It is reiterated, TRAI is not against offering of bouquets, however, it cannot be at the cost of the freedom of consumers to choose channels in a manner which they may like.

The impugned regulations and impugned tariff order will provide better choice to the consumers and will make broadcasting services affordable for the consumers without affecting freedom of broadcasters/distributors to offer their channels in the form of bouquets or a-la-carte offering, offer discount to the consumers and to determine MRP at its discretion for a la carte and bouquet offering.

This would result in unjust enrichment of broadcasters. There can be no mechanism for refund of the amounts that would be collected from the consumers by compelling the consumers by opting for bouquet vis-a-vis pay channels."