SC shifts NTO 2.0 matter hearing to 18th Aug as RIO deadline looms

As Supreme Court cites volume of documentation as the reason to shift the hearing, broadcasters will most likely have to comply with the 12th Aug deadline for filing RIO

e4m by exchange4media Staff
Updated: Aug 6, 2021 1:10 PM
Supreme court

The Supreme Court today refused to hear the petitions filed by Indian Broadcasting & Digital Foundation (IBDF) and others since the volume of petitions were too bulky. Nine petitions have been filed with 51 volumes.

The apex court has asked the petitioners to have one convenience file which will contain all the important documents. The senior counsels of all the petitioners can rely on this file for their arguments.

According to sources, since the matters were not taken up today there is no stay on the NTO 2.0 implementation, and the broadcasters have to file the Reference Interconnect Offers (RIOs) by 12th August.

As no interim relief has been granted by the SC, the broadcasters might reach out to the Telecom Regulatory Authority of India (TRAI) to keep the NTO 2.0 implementation in abeyance since the matter is in court.

However, the broadcasters can do little if the TRAI decides to go ahead with the NTO 2.0 implementation since technically there is no stay by the SC.

In their petitions, the IBDF and other broadcasters have urged the Supreme Court to set aside the Bombay High Court's recent order rejecting the petitions filed by broadcasters against the NTO and the subsequent amendments. They have also sought an ex-parte stay on the implementation of the amended tariff order (NTO 2.0).

The broadcasters have contended that the Bombay HC order is erroneous and is liable to be set aside. They have also said that the operationalisation of NTO 2.0 would require the broadcasters and distribution platforms to execute over 100,000 agreements, and it would be virtually impossible to roll back the effect of the said change, in the event the appeal against NTO 2.0 succeeds.

They have also stated that the TRAI will not suffer any prejudice or hardship if an interim stay is granted. Therefore, the IBDF argued that the balance of convenience lies in favour of the broadcasters since they stand to be subjected to greater inconvenience if the interim order is denied.

The biggest grouse that the broadcasters have against the Bombay HC order is that it has incorrectly read into Article 19(2) by applying an additional requirement of public interest when it comes to interpreting a broadcaster’s right to freedom of speech and expression under Article 19(1)(a).

According to the broadcasters, this will restrict the fundamental right to speech and expression of the broadcasters and will give powers to the TRAI to micro-manage the broadcasting sector.

The broadcasters are opposed to the below-mentioned clauses in the NTO 2.0:

(i) While forming bouquets of channels, the broadcasters mandatorily have to comply with the following conditions:

(a) the sum of the a-la-carte rates of the pay channels (MRP) forming part of a bouquet shall in no case exceed one and half times the rate of the bouquet of which such pay channels are a part [thus, e.g., if the sum total of the individual (a-la-carte) rates of 10 channels offered by a broadcaster is Rs. 12, the said broadcaster cannot offer the said 10 channels as part of a package or bouquet, whose MRP is less than Rs. 12];


(b) the a-la-carte rates of each pay channel (MRP), forming part of a bouquet, shall in no case exceed three times the average rate of a pay channel of the bouquet of which such pay channel is a part [In the above example, the average rate of a channel is Rs. 1.2, and thus, a broadcaster does not have the freedom to put any channel into this bouquet offering whose MRP is more than Rs. 3.6].

(ii) MRP of a channel should not be more than the MRP of any bouquet containing that channel [In the above example, even though there is no restriction on fixation of the MRP of a channel offered only as à la carte, however, even if the broadcaster wishes to offer a channel priced at Rs. 13 (e.g., sports channel having premium content) as part of this bouquet which is priced at Rs. 12, he is prohibited from doing so and the consumer, in the event that he/she wishes to view it, will be forced to take the said channel only as an a-la-carte offering for Rs. 13/-].

(iii) The number of bouquets offered by broadcasters cannot be more than the number of pay channels offered by a broadcaster [In the above example, even though it is mathematically permissible for the Broadcaster to offer hundreds of permutations and combinations of such 10 channels, in the form of bouquets, however, the new regime restricts the broadcaster to form only 10 bouquets and no more].

(iv) Broadcasters cannot provide any incentives on the bouquets offered by them to the DPO, whereas there is no such restriction upon the DPO.

(v) The TRAI has brought down the price cap of MRP for a channel from Rs. 19 to Rs. 12. Thus, in case a broadcaster prices its channel at a price more than Rs. 12, it is prohibited from offering such channel as part of any bouquet.

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