TaxTMI 
TaxTMI 
2019 (12) TMI 3
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....o capture the factual conspectus of the matter, the applicable law, judicial pronouncements and after considering the parties' submissions, ascertain whether the Impugned Order should be sustained or quashed. FACTS : 3. Prior to the dealing with the respective arguments canvassed by the parties, it would be necessary to set-out the following : 3.1 On 10th December, 2004, the Telecom Regulatory Authority of India ("TRAI") notified the Telecommunications (Broadcasting and Cable Services) Interconnection Regulations, 2004 ("2004 Regulations"). The 2004 Regulations inter alia covered arrangements amongst broadcasters such as the Petitioners and distributors of TV channels such as NSTPL. 3.2 On 1st October, 2013, NSTPL entered into an interconnect agreement with one Media Pro Enterprises India Private Limited ("Media Pro") a content aggregator for Star to off-take bouquets on the basis of the rates specified in Media Pro's Reference Interconnect Offer ("RIO") for a period between 1st October, 2013 to 30th September, 2014 ("Star RIO No.1 "). According to NSTPL, it entered into Star RIO No.1 under protest. 3.3 Similarly, on 31st October, 2013, NSTP....
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....utors that are similarly placed with the Petitioner Company herein; (d) Consequently, direct the Respondent Nos. 1,3 & 4 Companies to refund to the petitioner company any amounts it has paid under the respective Interconnection Agreements, in excess of the prices being offered by the said companies to distributors that are similarly placed with the Petitioner Company herein; (e) Direct that the Respondents Nos. 3 and 4 Companies have an obligation to disclose the existing and future volume related schemes to the Petitioner Company herein and further direct that the Petitioner Company may avail of the same if desired; ** ** **" 3.8 On 1st August, 2014, NSTPL entered into an agreement with Star on the basis of Star's RIO for a period between 1st August, 2014 to 30th June, 2015 ("Star RIO No.2"). 3.9 On 25th November, 2014, NSTPL entered into another RIO with Sony ("Sony RIO No.2"). NSTPL once again contends that this RIO was als....
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....nbsp; ** **" 3.15 On 9th July, 2015, TDSAT admitted the Second TDSAT Petition. Interim relief was granted to NSTPL restraining Star from giving effect to the Disconnection Notices provided NSTPL made an on-account payment of Rs. 1,00,00,000/- within a month. 3.16 In view of the fact that the questions arisen in the First TDSAT Petition were likely to affect the broadcasting sector as a whole, on 30th July, 2015, TDSAT permitted all concerned stakeholders to intervene in the First TDSAT Petition. 3.17 On 7th August, 2015, TDSAT directed that the Second TDSAT Petition would be decided after the disposal of the First TDSAT Petition. Parties have completed pleadings and have filed their respective Affidavit(s) of Evidence in the Second TDSAT Petition. The Second TDSAT Petition is pending as on date. 3.18 On 7th December, 2015, TDSAT passed an Order and Judgment in the First TDSAT Petition ("7th December, 2015 Order"). Amongst various other findings and directions, TDSAT directed all broadcasters to publish new RIOs in terms of the TRAI Regulations as inter....
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....ederation ("IBF") with CCI under Section 19 (1) of the Competition Act alleging that Star and Sony have adopted anti-competitive market practices, owing to their strategic position in the broadcasting sector/market by imposing unfair terms and limiting their services to less favored Distribution Platform Operators such as NSTPL in clear violation of Section 3 and 4 of the Competition Act ("Information"): 3.32 On 21st July, 2018, Sony filed a Contempt Application before TDSAT in view of NSTPL's failure to comply with TDSAT's order dated 1st May, 2017. 3.33 On 24th July, 2018, TDSAT permitted NSTPL to comply with its order dated 1st May, 2017 on the condition that an additional amount of Rs. 1,00,000/- shall be paid by NSTPL to Sony. 3.34 On 10th August, 2017, TDSAT dismissed the Contempt Application filed by NSTPL as also the Execution Applications filed by Star by inter alia holding: "Having considered the entire materials in the light of aforesaid rival stands and having gone through the three orders relied upon by the petitioner and also subsequent orders dated 09.02.2016 and 16.02.2016 in MA Nos. 34 and 36 of 2016 in the pending broadc....
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....on 24.08.2017, as is apparent from the order passed on that date, our attention was drawn to observations in an earlier order dated 08.04.2016 that required a consideration of the issue whether anything survived for adjudication in B.P. Nos.313 and 314 of2015. The observation was in the light of final judgment of this Tribunal in B.P No.295/2014 which was disposed of by a detailed judgment on 07.12.2015. Accordingly, parties have been heard on this issue ** ** ** 7. On behalf of petitioner, a simple stand is taken that petitioner has also sought a declaration that the demand is illegal and there is a need for reconciliation of accounts and clearly these reliefs cannot become infructuous unless respondent No. 1 agrees to give up its claim over the alleged outstanding against the petitioner. In reply, the respondents refused to give up their right to claim money from the petitioner on account of arrears of dues. ** ** ** 8. ....
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....SAT in the Second TDSAT Petition. In so far as the 7th December, 2015 Order is concerned, he submitted that the said order was passed on a summary basis without conducting a trial or considering any evidence. It was an order dealing with issues holistically. It did not finally decide the allegations raised by NSTPL against Star. Hence, the allegations of price discrimination, non-disclosure of discounted schemes/ incentive schemes and anti-competitive conduct qua NSTPL by Star remained undecided as on date. He supplemented his argument by submitting that TDSAT has itself held that the issue of the legality and validity of the demand raised by Star has not been finally decided. He thereafter submitted that NSTPL has admitted in Writ Petition No.12319 of 2019 filed by it that the Second TDSAT Petition is pending adjudication and that the issue of discrimination by Star in providing incentives has not been finally adjudicated. He then submitted that the issues raised in the Second TDSAT Petition are jurisdictional facts which only TRAI/TDSAT as expert regulatory bodies are equipped to decide. The existence of a jurisdictional fact is a sine qua non for the exercise of power. In this c....
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....bsence of any such exercise, Star could not prima facie be found to have contravened Section 3(4) read with Section 3(1) of the Competition Act. Mr. Khambata lastly submitted that an order directing the Director General to investigate is far reaching, conclusive and will stain Star with a stigma. In support of this submission, he placed reliance on Google Inc. & Ors. v. Competition Commission of India & Anr. (supra), Telefonaktibolaget Ericsson v. Competition Commission of India & Anr 2016 SCC OnLine Del 1951, Rohtas Industries Ltd. v. S.D. Agarwal [1969]1 SCC 325. Mr. Khambata therefore concluded that CCI, while carrying on a prima facie assessment, has failed to fulfil the jurisdiction pre-requisites laid down under the Competition Act and therefore, the Impugned Order be quashed by this Court. SUBMISSIONS BY SONY PICTURES NETWORK INDIA PRIVATELIMITED: 7. Appearing for Sony, Learned Senior Advocate Mr. S.K. Cooper submitted that until TDSAT holds that the RIO(s) were in breach of the Interconnection Regulations and/or discriminatory, there can be no question of CCI exercising jurisdiction under the Competition Act. In support of his submission on jurisdiction, he placed rel....
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....levant market vide the 7th December, 2015 Order. According to him, TDSAT has conclusively found that the RIO(s) were fraught with anti-competitive conduct. TRAI's view that there was indeed violative conduct in the market, was well recorded. 9.3 Thirdly he submitted that the 7th December, 2015 Order caused such serious grievance that a writ petition was preferred by Star before the Delhi High Court. The challenge was, inter alia, based on the ground that TDSAT exceeded its jurisdiction. However, not only did the Delhi High Court refuse to entertain the writ, the Supreme Court also dismissed the appeal and upheld the 7th December, 2015 Order. Thereby, the clear and explicit finding of anti-competitive conduct came to be finally upheld. According to him, Section 3(4) deals with, among others, two forms of abuses that appear to exist in the facts of the case viz. "tie-in arrangement" and "refusal to deal". The existence of these two abuses in the facts of the case, is writ large on the face of the Order dated 7th December , 2015, which came to be upheld even by the Supreme Court. CCI has, by applying the ratio in CCI v. Bharti Airtel, sought to investigate the same in dis....
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....or consideration of whether there is abuse of dominance in a manner that would violate Section 4. Merely because some of these criteria are also those stipulated for determination of abuse of dominance under Section 4, it would not follow that the criteria are irrelevant for determination of market power for assessing AAEC under Section 3(4). CCI has taken care to ensure that the freedom of enterprise for enterprises that do not have market power is not interfered with. Applying objective criteria, the Impugned Order explains in detail how the Petitioners have tremendous market power for their actions, and their understanding of how their customers must transact with them, to result in violation of Section 3(4), indeed on a prima facie basis. 9.4 Fourthly, he submitted that such conclusive findings in the 7th December, 2015 Order has been noticed in the Impugned Order, and forms, amongst others a prima facie rationale, the basis of investigations ordered in the Impugned Order. The Impugned Order also records that the order of this Court in the case of Vodafone (which, in appeal, led to CCI v. Bharti Airtel), canvassed by the Petitioners, indeed ruled that the telecom regul....
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...., are matters in-rem, which indeed have been conclusively determined by the TDSAT. The legal standard laid down in CCI v. Bharti Airtel is not that every "general" inter-personal dispute between a complainant and an alleged market abuser must be conclusively determined by the sectoral regulator. This is not a condition precedent for the CCI to even start exercising its jurisdiction. On the contrary, such an argument was exhaustively repelled in CCI v. Bharti Airtel, and in the facts and circumstances of that case, the Supreme Court ruled that the issues involved in that case were regulatory questions, which needed to be answered. The regulatory issues in the instant case stand answered by the 7th December, 2015 Order, and applying the principles of CCI v. Bharti Airtel, the CCI now has to discharge its duty to conduct the investigation to examine if there is conduct that deserves to be interdicted. 9.9 Ninthly, he submitted that it is trite and well-settled law that judgements must not be read like legislation much less like fiscal legislation, with a literal reading of specific sentences without context, particularly, context of the facts being adjudicated upon in the jud....
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....sis that TDSAT had decided all matters raised in the Information. According to Mr. Andhyarujina, the grounds now taken by Star and the arguments made before this Court are directly contrary to the arguments made by Star before CCI. He therefore submitted that a party cannot be allowed to approbate and reprobate. Mr. Andhyarujina's next submission was that the test laid down in CCI v. BhartiAirtel has been satisfied. It was Mr. Andhyarujina's third submission that the 7th December, 2015 Order has extensively dealt with the issues between the parties with respect to the RIOs and the violations of the Interconnect Regulations and the TRAI Act. As such, the 7th December, 2015 Order is conclusive, comprehensive and has finally adjudicated upon the said issues. Mr. Andhyarujina's fourth submission was that the various orders and directions of the TDSAT clearly indicate that the only outstanding issues that remain to be decided in the Second TDSAT Petition is that of settling of accounts. Placing further reliance on these orders, he submitted that the said orders highlight the mala fide actions and intent of the broadcasters. Mr. Andhyarujina tendered various charts across the....
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....which regulates the functioning of the telecom service provider i.e. the telecom sector. Section 11 of the TRAI Act enumerates various functions which TRAI is supposed to perform under the Act. Section 13, likewise, empowers TRAI to issue directions, from time to time, to the service provider. In exercise of powers under Section 13 read with Section 11 of the TRAI Act, TRAI issued directions dated 7-6-2005 to all the telecom service providers to provide interconnection within ninety days of the applicable payments made by the interconnection seeker. The purpose behind providing interconnection by one service provider to the other service provider is to ensure smooth communication by a subscriber of one service provider to the cell number which is provided by another service provider. In that sense, this direction facilitates smooth functioning of the cellphone network even when it is managed by different companies as it ensures interconnectivity i.e. connectivity from one service provider to other service provider. 13. On 21-10-2013, RJIL was granted Unified Licence and Unified Access Service Licence under Section 4 of the Telegraph Act by the Department of Telecom (DoT) f....
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....ion dated 8-8-2016 to TRAI wherein it took a stand by stating that the RJIL was providing free service to millions of users under the guise of testing which led to choking of POIs. It was further suggested that due to the free service provided by RJIL, a substantial imbalance in voice traffic had occurred for which the existing operators were not adequately compensated under the Interconnection Usage Charges Regulations (IUC) in place. 15. There was further exchange of correspondence between the parties and even by the parties to the TRAI which shows that the parties stuck to their respective positions and it may not be necessary to refer to those communications in detail. Suffice it is to mention that RJIL fixed 5-9-2016 as the launch date, which fact was informed to other service providers as well who were also told that the subscriber base was expected to substantially and swiftly increase resulting in even more POI congestion. On that basis, request was made for urgent POI augmentation vide letter dated 2-9-2016. The TRAI even facilitated a meeting between the representatives of RJIL and other service providers (the respondents herein) to sort out and resolve the diffe....
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....ing at the behest of IDOs against the interest of a competing member i.e. RJIL, and not for the common interest of the industry and consumers as a whole." 16. We now reproduce what exactly the IDOs submitted were jurisdictional facts: "100. In the instant case, dispute raised by RJIL specifically touches upon these aspects as the grievance raised is that the IDOs have not given POIs as per the licence conditions resulting into non-compliance and have failed to ensure inter se technical compatibility thereby. Not only RJIL has raised this dispute, it has even specifically approached TRAI for settlement of this dispute which has arisen between various service providers, namely, RJIL on the one hand and the IDOs on the other, wherein COAI is also roped in. TRAI is seized of this particular dispute. 101. It is a matter of record that before the TRAI, IDOs have refuted the aforesaid claim of RJIL. Their submission is that not only required POIs were provided to RJIL, it is the RJIL which is in breach as it was making unreasonable and excessive demand for POIs. It is specifically pleaded by the IDOs that: 101.1. RJIL raised its demand for POIs for the first ....
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....or POIs made by RJIL were reasonable or not? 102.4. Whether there was any delay/denial at the end of Vodafone in provisioning of POIs? 102.6. Whether IDOs have provided sufficient number of POIs to RJIL in conformity with the licence conditions? 103. We are of the opinion that as TRAI is constituted as an expert regulatory body which specifically governs the telecom sector, the aforesaid aspects of the disputes are to be decided by TRAI in the first instance. These are jurisdictional aspects. Unless TRAI finds fault with the IDOs on the aforesaid aspects, the matter cannot be taken further even if we proceed on the assumption that CCI has the jurisdiction to deal with the complaints/information filed before it. It needs to be reiterated that RJIL has approached the DoT in relation to its alleged grievance of augmentation of POIs which in turn had informed RJIL vide letter dated 6-9-2016 that the matter related to interconnectivity between service providers is within the purview of TRAI. RJIL thereafter approached TRAI; TRAI intervened and issued show-cause notice dated 27-9-2016; and post issuance of show-cause notice and directions, TRAI issued recommend....
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.... allowed to intervene at this juncture, it will have to necessarily undertake an exercise of returning the findings on the aforesaid issues/aspects which are mentioned in para 102 above. Not only TRAI is better equipped as a sectoral regulator to deal with these jurisdictional aspects, there may be a possibility that the two authorities, namely, TRAI on the one hand and CCI on the other, arrive at conflicting views. Such a situation needs to be avoided. This analysis also leads to the same conclusion, namely, in the first instance it is TRAI which should decide these jurisdictional issues, which come within the domain of the TRAI Act as they not only arise out of the telecom licences granted to the service providers, the service providers are governed by the TRAI Act and are supposed to follow various regulations and directions issued by TRAI itself." 18. Following the aforesaid, the Supreme Court laid down the test for CCI to exercise its jurisdiction as follows: "113. The conclusion of the aforesaid discussion is to give primacy to the respective objections of the two regulators under the two Acts. At the same time, since the matter pertains to the telecom sector whic....
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....r to do so, it would be necessary to reproduce the following paragraphs from the 7th December, 2015 Order. INTRODUCTION: This case raises some very basic issues concerning the broadcasting services. The Interconnect Regulations are founded on the principles of "must provide" and non-exclusion. A broadcaster must give its signal to every distributor, indeed on reasonable terms. The Regulations further mandate the broadcaster to publish a Reference Interconnect Offer (RIO) setting forth the technological and commercial terms on which it would give its signal to a distributor. The RIO is a sort of offer to the world at large and if a distributor expresses willingness to take the broadcaster's signals on the RIO terms the broadcaster must give its signals to the distributor without ado (provided of course the distributor's system are technologically compliant with the regulatory prescriptions!). At the same time, the Regulations also seem to allow for inter-connect arrangement between the broadcaster and a distributor, based on mutually negotiated agreement. To cap it all, the Regulations dictate parity and non-discrimination in the inter-connect arrangements that a....
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....r dated30.7.2015): 1. Whether, in the facts of this case, a dispute requiring the adjudication of issues framed by the Tribunals order dated 30 July 2015, at all arises ? 2. Whether the right to freedom of contract is embedded in the Interconnect Regulations and consequently mutually negotiated agreements are outside the purview of not only the non-discrimination obligation in clause 3.2 of the Interconnect Regulations, 2004 but the regulatory regime itself? 3. Whether, in light of the scheme of the Copyright Act and the fact that what is being transmitted is licensed content, the Interconnect Regulations 2004 must necessarily be interpreted as according complete freedom of contract and primacy of mutual negotiations in matters of interconnection ? 4. What interpretation ought to be placed on the various clauses of the 2004 Regulations ? Specifically, what is contemplated by an RIO, and what is the extent of negotiation that is permissible in deviating from the terms of the RIO ? Specifically, can parties - by mutual negotiations - contract out of mandatory norms laid down both in the Regulations (e.g. 13.2A.11 and 13.2A.12) and the conditions/me....
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....my way or the highway' choice, with the RIO being the highway. The RIO rates were also divorced from commercial or market realities, that neither party actually wanted an agreement on RIO basis. This, Mr. Kathpalia submitted, was borne out by the fact that when distributors did - in certain cases - agree into an agreement on RIO basis, the broadcasters themselves were forced to rush to this Tribunal. Mr. Kathpalia further submitted that the RIO was structured in a manner to make the a la carte offering of channels a non-starter. Mr. Kathpalia submitted that discrimination was inherent in the faux RIO that exists today. We agree with Mr. Kathpalia's submissions on RIO and we proceed to examine in how many ways the RIOs, currently offered by the broadcasters, do not conform to the Regulations. The RIO offered by every broadcaster to the distributors has three main features : (i) It gives only a list of individual channels with their a la carte rates (ii) It does not give any bouquets of channels or the prices thereof (iii) Even the a la carte rates of channels are fixed with no regard to the market realities, as reflected in the ne....
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.... negotiated agreement. The preposition is misleading and incorrect. The provisions that form the basis for the submissions are contained (i) in clause 3.5 that provide that the broadcaster to whom a request for providing TV channels signals is made should provide the signals on mutually agreed terms to the distributor of TV channels who is seeking signals, or specify the terms and conditions on which it is willing to provide TV channels signals.............. and (ii) in the proviso to clause 13.2A.6(i), providing that the broadcaster may enter, on non-discriminatory basis, into agreements with different direct-to-home operator modifying the reference interconnect offer on such terms and conditions as may be agreed upon. It must be understood that provision of mutually agreed terms in clause 3.5 mainly relates to the areas under analogue mode of transmission. In analogue system, there is absolutely no scientific or objective way to ascertain the number of viewers watching any particular channel and in analogue mode gross understatement of the subscriber base by the distributor is a well-known and recognised fact. There is thus no other mode for the broadcaster and ....
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.... The omission to give the bouquets in the RIO is thus plainly a contravention of the Regulations. Furthermore, the submission has already been rejected in the Hathway decision. As the Regulations stand in its present form, we are clearly of the view that the RIO must reflect not only the rates of channels but also the different formations, assemblages and bouquets in which the broadcaster wishes to offer its channels for distribution along with the rates of each of the formation or bouquet. Further, the a la carte rate and the bouquet rates must bear the ratio as mandated in clause 13.2A.12. The RIO must also clearly spell out any bulk discount schemes or any special schemes based on regional, cultural or linguistics considerations that would be available on a non-discriminatory basis to all seekers of signals. To sum up the RIO, must enumerate all the formats, along with their respective prices, in which the broadcaster may enter into a negotiated agreement with any distributor. To put it conversely, the broadcaster cannot enter into any negotiated deal with any distributor unless the template of the arrangement, along with its price, consistent with the ratio prescribed ....
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....however, ignores the second part of the Explanation that puts the difference based on distribution technology in two broad categories as under: "For the removal of doubts, it is further clarified that the distributors of TV channels using addressable systems including DTH, IPTV and such like cannot be said to be similarly based vis-a-vis distributors of TV channels using non addressable systems." From the above it is clear that the difference based on technology relates to addressable systems and non-addressable systems and not between different technologies among the addressable systems. Any difference in distribution technology can be accounted for in the technological terms stipulated in the RIO but so far as commercial terms are concerned, it is difficult to see a HITS operator as different from a pan-India MSO and in our considered view a HITS operator, in regard to the commercial terms for an interconnect arrangement has to be taken at part with a pan-India MSO and must, therefore, receive the same treatment. VII. Operative Directions In light of the discussions made above, both Star and Taj, as well as the other broadcasters who h....
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....et participants. The task before this Tribunal has been to reconcile these different facets of the Regulation such that no one part is rendered completely hollow, redundant or otiose. Thus, in the interpretation that we have placed on the Regulation, there is the obligation to frame a meaningful RIO in which all bouquet and a la carte rates are specified, and there is also some room for mutual negotiation (even on rates) within certain specified parameters. This will achieve the objective of introducing a transparent non-discriminatory regime whereby distributors can obtain access to content, while still retaining some latitude to mutually negotiable the terms and conditions of access. It will also make the nexus between a la carte and bouquet rates, which the regulator thought fit to introduce, applicable to all mutually negotiated agreements. Negotiations must be within the parameters to those mandatory conditions specified in the Regulations that cannot be avoided or waived, and the mutual negotiation course cannot be used as the means to completely step out of the Regulations. It would be plainly opposed to any common sense principle to first set out an elaborate cumbersome reg....
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.... anxious consideration to this matter, that we resolve to suspend the operation of this judgment till 31 March 2016. The judgment shall take effect on 1 April 2016. While we are aware that this is not a common procedure, we are of the view that it is appropriate in the peculiar facts and circumstances of this case, since the effect of this judgment may be to unsettle a number of existing agreements and necessitate re-negotiation. In the meanwhile it will be open to TRAI, if it elects to do so, to undertake a comprehensive restructuring of the Regulations which would hopefully clarify many of the issues that arise in these proceedings. We make it clear that this Tribunal is issuing no such direction to TRAI. The delayed operation of the judgment is only to afford an opportunity to TRAI to consider the matter and act in the intervening period, if appropriate. Having regard to the fact that the greater part of the country would come under the DAS regime with effect from 1.1.2016, it would be advisable that TRAI should try to frame a consolidated Broadcasting Code instead of the large number of Regulations dealing with different aspects of the service and each having ....
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.... be taken. For this purpose, Petition No. 526 (C) of 2015 is de-tagged from this judgment and kept pending. Star has already filed an application (M.A. No.377 of 2015) in Petition No.314 (C) of 2015 claiming the dues of licence fees from the Petitioner. Petition No.526 (C) of 2015 is directed to be tagged with Petition No.314 (C) of 2015 In these two Petitions, the Tribunal proposes to determine the Petitioner's liability to pay the license fees to Star and Taj on an ad hoc basis and as an interim measure until the execution of the agreements with the two broadcasters, and when the accounts of the two sides may be reconciled to determine any final liability of the Petitioner or Respondents to make any further payments. Before concluding we would like to put on record our deep appreciation for the assistance rendered by all the counsel who appeared in these proceedings. We also record our gratitude, particularly to the amicus curiae for the very valuable assistance he provided to us by his thorough work and painstaking research of the evolution of the regulatory regime for the broadcasting sector not only in India but in some other jurisdictions as well. In the....
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....STPL against Star before TDSAT. However, these issues came to be decided in view of the fact that TDSAT allowed all stakeholders to intervene in the First TDSAT Petition because it was considering questions that were likely to affect the broadcasting sector as a whole. In so far as Issue Nos. (i) to (vi) are concerned, the 7th December, 2015 Order does not decide whether NSTPL was similarly situated with and thus entitled to the same rates, bundles/bouquets, incentives and/or volume based discounts as those entities with whom Star had agreements. The findings of the TDSAT related to general industry wide issues in rem. In fact, the in personam dispute between NSTPL and the Petitioners is pending final adjudication. This is evident from the subsequent orders of TDSAT itself. The key issue that is specific to the dispute between Star and NSTPL is whether NSTPL is "similarly situated" with other distributors of Star, given its subscriber base, channel off-take, geographic reach, placement location of channel etc. and thus, whether it is entitled to parity in rates and incentives as such similarly situated entities. NSTPL will have to discharge the burden of showing how it is "similarl....
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....titioner Company: (e) Direct that the Respondent Nos. 1, 3 and 4 Companies have an obligation to disclose the existing and future volume related schemes to the Petitioner Company here and further direct the Petitioner Company may avail of the same if desired; " 27. The 7th December, 2015 Order does not consider, let alone find, that NSTPL is "similarly placed" with other distributors. The order merely holds that HITS technology operators, being part of the addressable systems (as opposed to analogue/ non-addressable systems) are at par with other addressable system technology operators and must, therefore, receive the same treatment. The factors peculiar to NSTPL's market position, which would determine whether NSTPL is in fact "similarly placed with other distributors" such as (i) viewership, (ii) advertisement revenue potential, (iii) regional, cultural, linguistic considerations, and (iv) other special considerations have not even been considered in the 7th December, 2015 Order. Instead, TDSAT passed an order on 30th July, 2015 noting that some of the questions that arose for consideration in the First TDSAT Petition were likely to affect the broadcasting sector ....
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....otiation (even on rates) within certain specified parameters... ** ** ** 104. At the same time, we are conscious that the present judgment may unsettle the way in which various parties in the broadcasting sector have entered into existing agreements. We are further conscious that while the TRAI has taken a position broadly in line with our conclusions in this case, that has not always been the case ** ** ** 107. It is in this background, and having given our anxious consideration to this matter, that we resolve to suspend the operation of this judgment till 31 March 2016. The judgment shall take effect on 1 April 2016. While we are aware that this is not common procedure, we are of the view that it is appropriate in the peculiar fac....
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....s/parameters that may play a role while determining whether a broadcaster had actually discriminated against a distributor. Therefore, according to us, the critical issues/aspects identified by NSTPL in its oral arguments are pending adjudication in the Second TDSAT Petition. None of them have been decided by TDSAT in the 7th December, 2015 Order. In fact, at the time of passing the 7th December, 2015 Order, TDSAT specifically directed in paragraph 111 that the question of liability and therefore the inter-party disputes between NSTPL and Star would be decided in the Second TDSAT Petition. Thus, the issue of "reconciliation of accounts" includes whether NSTPL was entitled to the same price, bouquets and incentives as "similarly situated distributors". Logically, if NSTPL does not establish that it is "similarly situated" then it would not be entitled to the same price/incentives etc. on reconciliation of accounts. These are jurisdictional aspects and facts, which must be decided before CCI could have ordered investigation. 30. Another aspect that leads us to hold that the Impugned Order cannot be sustained is that the Petitioners as also CCI were ad idem as to the onus cast upon....
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....ssed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as aforereferred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analysing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its ....
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....de by the government in exercise of its power under sub-section (3-C) will, of course, be tested by asking the question whether or not the matters mentioned in clauses (a) to (d) have been generally considered by the government in making its estimate of the price, but the court will not strictly scrutinise the extent to which those matters or any other matters have been taken into account. There is sufficient compliance with the sub-section, if the government has addressed its mind to the factors mentioned in clauses (a) to (d), amongst other factors which the government may reasonably consider to be relevant, and has come to a conclusion, which any reasonable person, placed in the position of the government, would have come to. On such determination of the price of sugar, which, as stated in Panipat [(1973) 1 SCC 129: (1973) 2 SCR 860] is the fair price, the sub-section postulates the calculation of an amount, with reference to such price, for payment to each producer who has complied with an order made with reference to sub-section (2)(f). The "price of sugar", unlike the "amount", is arrived at by a process of costing in respect of a representative cross-section of manufacturing....
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....8th November, 2017, by an order dated 21st November, 2017 TDSAT rejected Star's contention that the Second TDSAT Petition was infructuous and that TDSAT itself held that the legality and validity of demand raised by Star against NSTPL is pending adjudication in the Second TDSAT Petition. In our opinion, once TDSAT rendered a finding that there were issues that survived and were required to be adjudicated in the Second TDSAT Petition despite having passed the 7th December, 2015 Order, what Star contended prior to such finding in its Written Submissions is irrelevant. It is for this reason that Mr. Khambata brought to our notice paragraph no. 29 of Star's Writ Petition which reads: "29. Bearing the above in mind, it is submitted that it is evident that the Respondent No.2 has itself raised the issue of alleged non-provisioning of TV Channels by the Petitioner leading to alleged refusal to deal and price discrimination before the Hon'ble TDSAT which is pending adjudication as per its own case and order dated 10 Aug 201 7 of the Hon'ble TDSAT. Thus, the Respondent No. 2 ought not to be permitted to forum shop and re-agitate the same issues before the Respondent....
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....ven TDSAT did not accept NSTPL's contention that Star RIO No.2 was not binding as being "under protest" or "without prejudice". 39. We are further unable to place any reliance on the various charts submitted by NSTPL to submit that Star and Sony have indulged in price discrimination. It is now clear that the issue as to whether Star and/or Sony indulged in price discrimination is still pending adjudication in NSTPL's Second TDSAT Petition. Therefore, we cannot pass any finding in this respect. In any event, the Supreme Court in CCI v. Bharti Airtel has clearly laid down that this Court ought not to go into the merits of the Impugned Order. Keeping in line with the Supreme Court's directions in CCI v. Bharti Airtel, we also refrain from making any observations as to the conduct and on-going insolvency proceedings of NSTPL. 40. With respect to the Respondents' submissions that this Court ought not to interfere with the Impugned Order and the various citations tendered by them to prevent this Court from judicially reviewing the Impugned Order, we deem it appropriate to refer to the following findings from CCI v. Bharti Airtel: "B. Whether the writ petiti....
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....ed to record reasons for coming to the conclusion. The proposition of law whether an administrative or quasi-judicial body, particularly judicial courts, should record reasons in support of their decisions or orders is no more res integra and has been settled by a recent judgment of this Court in CCT v. Shukla & Bros. [CCTv. Shukla & Bros., (2010) 4 SCC 785: (2010) 3 SCC (Civ) 725: (2010) 2 SCC (Cri) 1201: (2010) 2 SCC (L&S) 133], wherein this Court was primarily concerned with the High Court dismissing the appeals without recording any reasons. The Court also examined the practice and requirement of providing reasons for conclusions, orders and directions given by the quasi-judicial and administrative bodies. ** ** ** 97. The above reasoning and the principles enunciated, which are consistent with the settled canons of law, we would adopt even in this case. In the backdrop of these determinants, we may refer to the provisions of the Act. Section 26, under ....
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....statutory regulator, namely, TRAI under the TRAI Act, that judgment would not be applicable. Merely because the present case deals with the telecom sector would not change the nature of the order that is passed by CCI under Section 26(1) of the Competition Act. However, it raises another dimension. Even if the order is administrative in nature, the question raised before the High Court in the writ petitions filed by the respondents touched upon the very jurisdiction of CCI. As is evident, the case set up by the respondents was that CCI did not have the jurisdiction to entertain any such request or information which was furnished by RJIL and two others. The question, thus, pertained to the jurisdiction of CCI to deal with such a matter and in the process the High Court was called upon to decide as to whether the jurisdiction of CCI is entirely excluded or to what extent CCI can exercise its jurisdiction in these cases when the matter could be dealt with by another regulator, namely, TRAI. When such jurisdictional issues arise, the writ petition would clearly be maintainable as held in Barium Chemicals Ltd. v. Company Law Board [Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC....
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.... non or condition precedent to the assumption of jurisdiction by a court or tribunal. ** ** ** 36. It is thus clear that for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide adjudicatory facts or facts in issue." 120. Thus, even when we do not agree with the approach of the High Court in labelling the impugned order as quasi-judicial order and assuming jurisdiction to entertain the writ petitions on that basis, for our own and different reasons, we find that the High Court was competent to deal with and decide the issues raised in exercise of its power under Article 226 of the Constitution. The writ petitions were, therefore, maintainable. " 41. In view of the authoritative finding of the Supreme Court, we hold that the present Writ Petitions against the Impugned Order are maintainable and ....