The tariff order dispute between the Telecom Regulatory Authority of India (TRAI) and Star India, which is pending before the Madras High Court, is showing no signs of an early resolution. Sources privy to the status of the case informed that another judge’s recusal happened on April 17 who sought to be excused from adjudicating on the matter after being nominated by the Chief Justice. While the exact reason for the recusal could not be ascertained with the learned judge not having mentioned anything in the order, the judge reportedly made a few oral observations before releasing the case.
Exchange4media has learnt that the concerned judge deemed it inappropriate to preside over the case since previous judgements given by the concerned individual in relation to TRAI matters were awaiting settlement before other forums. This is the second instance of a recusal in the Copyright Act violation case which also has Vijay TV involved. Just a few weeks back, Justice S Nagamuthu and Justice Anita Sumanth recused themselves from hearing the matter after an anonymous petition was filed before the CJ of the Madras HC. The petition alleged that Justice Nagamuthu had asked for favours from Star India’s counsel P Chidambaram to be appointed as a judge. Chidambaram oversaw key portfolios such as finance and home affairs during the erstwhile UPA government's ten-year rule at the centre.
Following the recusal of the two-judge bench, the matter became pending even as Justice Indira Banerjee was sworn in as CJ of Madras HC on April 5. The ball is once again in the court of the CJ who will have to make a new appointment(s) after yet another recusal in the tariff order dispute. Before the initial recusal happened, both the central government and Star India had completed their submissions before the court. The court was hearing the submissions of TRAI’s counsel P Wilson which was to be succeeded by the intervention of All India Digital Cable Federation (AIDCF). However, that was not to happen. Post the recusal, the new bench will begin to hear the submissions of the parties involved right from the beginning with the central government and Star making their submissions one more time.
The genesis of the tariff order dispute can be traced back to the draft tariff regulations released by TRAI in October last year. Unhappy with the recommendations made therein, Star India and Vijay TV brought the matter to court alleging that TRAI had overstepped its jurisdiction by pricing content through its tariff order. They also claimed that the actions of the government regulator were in violation of the Copyright Act. On the other hand, TRAI maintained its stand of being well within its purview to regulate the broadcasting sector and control pricing.
On March 3, the Supreme Court permitted TRAI to notify its tariff order while simultaneously directing the Madras HC to dispose of the case within a period of two months. On the very same day, TRAI released the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017. The updated draft did away with certain rigid provisions like genre-wise price caps for different channels and prescribed the maximum retail price for any pay channel forming part of a bouquet at Rs 19. The maximum discount which broadcasters can offer on a bouquet of pay channels was also capped at 15 per cent.
Subsequently, TRAI amended the tariff order enabling the stakeholders to publish the RIO within a timeframe of 60 days applicable from March 30. RIO is a document which is to be made available by a service provider clearly mentioning the terms and conditions on the basis of which another service provider may seek interconnections. Eventually, TRAI’s tariff order was published in the Gazette of India on April 3 and is set to be implemented from May 2. Going by the direction of the Supreme Court, the Madras HC was also required to settle the matter around early May. However, with the case having to undergo recusal from the side of judges not just once but twice, it looks like the dispute between TRAI, broadcasters and distributors is most likely to not face closure in the near future.