Landing page not illegal as TDSAT sets aside TRAI's direction

In a landmark decision, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has set aside TRAI’s direction on the landing page issue wherein all the broadcasters and distributors of television channels were directed to restrain from placing any registered satellite television channel (whose TV rating was measured by BARC India) on the landing LCN or landing channel or boot up screen.

Hearing multiple petitions together challenging TRAI’s direction, TDSAT Chairperson Justice S K Singh and Member AK Bhargava said, “In our considered view, the impugned directions are beyond the provisions of the act, which empowers TRAI to issue directions. Therefore, the impugned directions must be set aside on this point alone. We order accordingly.”

The tribunal was hearing the cases filed by Bennett Coleman that owns Times Network comprising four channels, All India Digital Cable Federation and JPR Channel Mumbai.

TRAI, in exercise of the powers conferred upon it under Section 13, read with sub-clause (ii) of clause (b) of sub-section (I) of Section 11, of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), in order to protect the interest of service providers and consumers and ensure orderly growth of the sector, had directed all broadcasters and distributors of the television channels to restrain from placing any registered satellite television channel, whose TV rating is released by TV rating agency, on the landing LCN or landing channel or the boot-up screen.

The tribunal noted that the common grievance of all the appellants in these appeals was that the impugned direction had serious adverse effects on the incoming revenue stream of appellants for no good reasons. It neither serves the interest of service providers and consumers. The appellants claim that their right to carry on trade and business without undue and uncalled for interference has been put to jeopardy without providing any tangible or measurable benefit to the consumers or to service providers. According to them, it would impede the orderly growth of the sector by affecting the lawful source of income of the broadcasters and distributors because to compensate for such loss, they will have to ultimately put more burden on the consumers.

Explaining the order, the bench said, “In the relevant sub-clauses (ii) and (iii) of clause (b) of Section 11(1) of the act, the reference to interconnectivity, including terms and conditions thereof as well as technical compatibility and effectiveness refer purely to interconnectivity which is different from placement. Terms and conditions for interconnectivity can be prescribed by TRAI under the aforesaid provisions of the act but clearly the provisions which have been claimed and are also mentioned in the impugned directions as source of power and which have been relied upon by learned counsel for the respondent, do not vest any power in the TRAI to issue directions for the purpose of curtailing the right of distributors to carry any channel on any page including the landing page by way of content or by way of advertisement. Such right is a valuable right to carry on trade and business for profit and can be regulated or curtailed only for good reasons through statuary provisions like regulations. Section 11(1)(b)(ii) vests power to issue directions only in respect of interconnectivity and do not for controlling contents of landing page for TRP purposes. For such a purpose, there is no power in TRAI to issue directions under the act.

“Having said that, distributors’ rights may require a serious consideration of all the pros and cons germane to the issue, it is worthwhile to note that the issue of landing page may throw up conflicting interests and rights because TRAI claims to balance them mainly in the interest of consumers. Such rights can be properly understood and regulated only when it is clearly understood as to whom landing page belongs to as an owner and also as a beneficiary of the end product. Does it belong to the subscriber or to the DPO who brings the signals to the subscriber or to none of these?

“To be fair, such a question of law has been canvassed neither by appellants which include DPOs and Broadcasters, nor by TRAI which claims to have so acted in the interest of consumers.

“Maninder Singh, senior counsel appearing for Bennett Coleman, makes it clear that it belongs to the DPOs, who therefore have full rights on what to place on the landing page. TRAI has not applied its mind to this basic question but has obliquely referred to the suggestion whether landing page can be used for subscriber related information. Such a suggestion has been dismissed on account of technical difficulties that the DPOs may face.

“We do not know such difficulties or whether those difficulties are insurmountable. However, we do know that the authority has applied sufficient energy and diligence in addressing technical problems faced by BARC since BARC did not wish to change its methodology keeping in view the international best practices. No one can have cavil with following best practices. However, we do not know what are the best international practices in respect of landing page or in respect of regulation of LCNs in general. Would it not be best practice if subscriber is given a choice to opt? Should the landing page be a default or a separate page in its own right? Can the subscriber be presented with a default, be it a rated or unrated channel? Or, as Maninder Singh suggests, the subscriber’s right is sufficiently covered since the DPO determines the tariff for subscriber after accounting for revenue generated through the default landing page?

“Of course, the question at hand may have many perspectives and the regulator is not obliged to conceive or answer all of them. The observation we wish to make is that when subscriber’s interest is canvassed, it may be appropriate to consider the question of their (DPOs) rights, howsoever small, in more details.”

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