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Delhi HC stays TDSAT order asking broadcasters to share OTT-related info with TRAI

The court has directed TRAI to file a counter affidavit within a period of six weeks. Further, the three broadcasters will have four weeks thereafter to file a rejoinder affidavit

by exchange4media Staff
Published - Sep 29, 2022 8:40 AM  |  3 min read

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The Delhi High Court has stayed the Telecom Disputes Settlement and Appellate Tribunal's (TDSAT) order directing broadcasters Star India, Culver Max Entertainment (Sony), and Sun TV Network to share information about the mode of transmission of linear channels on over-the-top (OTT) platforms.

The High Court has also stayed further proceedings in the matter before the TDSAT while posting the matter for 3rd March 2023.

Irked by the TDSAT order, the three broadcasters approached the Delhi High Court seeking a stay on the direction. The broadcasters contended that the TDSAT has exceeded its jurisdiction in passing a direction asking them to furnish information to the TRAI regarding the streaming of live linear channels on Disney+Hotstar, SonyLIV, and SunNXT.

While issuing notice to the TRAI, the bench of Justice Yashwant Varma directed the regulator to file a counter affidavit within a period of six weeks. Further, the three broadcasters will have four weeks thereafter to file a rejoinder affidavit.

The High Court noted that the TDSAT order dated 20th September 2022 is unsustainable since asking broadcasters to provide information to the TRAI virtually amounts to disposing of the petitions even as the appeals were kept pending.

It also noted that the issue of the applicability of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 to OTT platforms and the regulation of those platforms is a matter which is presently pending consideration before the Supreme Court.

In their petitions, the broadcasters have noted that the TDSAT has failed to consider the TRAI's affidavit dated 7th August 2022 wherein it had categorically stated that "it prima facie appears that there is no violation of clause 5.6 of the (Downlinking) Policy Guidelines". They argued that the issue regarding violation of the Downlinking Guidelines by the broadcasters did not survive.

The broadcasters also argued that the information sought by the TRAI is beyond its jurisdiction. It was also contended that OTT platforms are not licensed under Section 4 of the Indian Telegraph Act, 1885 and hence, the TRAI does not have the authority under the TRAI Act to regulate OTT platforms.

The broadcasters further noted that the TRAI has no jurisdiction over OTT services and it has been the regulator's consistent legal position in various submissions filed under oath that OTT services do not fall within the scope of the TRAI Act. MIB has consistently stated in its submissions that OTT platforms are not governed by the Downlinking Guidelines, the broadcasters said.

In its order, the TDSAT stated that the process of gathering data or seeking replies from broadcasters cannot be stopped. It added that the exercise of the “fact-gathering process or data collecting process” initiated by the TRAI must be allowed to reach its logical conclusion.

"Collecting the information by the TRAI, prima facie ought to be permitted so that the TRAI can properly advise the Union of India or make proper recommendations to the Union of India or perform its functions and duties under the TRAI Act," the TDSAT order reads.

In 2021, the TRAI issued letters to broadcasters asking them to provide a detailed architecture indicating which media is being used to deliver linear content to their own as well as third-party streaming platforms. The regulator wanted to ascertain that the satellite TV channel signal reception decoders are not used to deliver live linear channels to OTT.

Clause 5.6 of the policy guidelines for downlinking of TV channels dated 5.12.2011 states that a broadcaster shall provide satellite TV channel signal reception decoders only to registered MSOs/Cable Operators, DTH operators, Internet Protocol Television (IPTV) Service providers, and HITS operators.

 

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