Bombay HC order on NTO 2.0 will impinge on free speech, says IBDF in its petition to SC

The petition states that the Bombay HC's recent order rejecting petitions filed by broadcasters against the NTO will allow TRAI to micro-manage the broadcasting sector

e4m by Javed Farooqui
Published: Jul 19, 2021 7:55 AM  | 7 min read

The Indian Broadcasting & Digital Foundation (IBDF) has urged the Supreme Court to set aside the Bombay High Court's recent order rejecting the petitions filed by broadcasters against the new tariff order (NTO) and the subsequent amendments besides granting an ex-parte stay on the implementation of the amended tariff order (NTO 2.0).

In its 1137-page petition, IBDF has said that the Bombay HC order is erroneous and is liable to be set aside. It has also urged 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 its appeal succeeds.

The foundation also contended 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 IBDF has 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).

This, the IBDF said, 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.

"This error in interpretation of one of the most sacrosanct and hallowed of the fundamental rights, permeates the entire reasoning of the Hon’ble Bombay High Court in the Impugned Order, while dismissing the Petitioners’ challenge to the Impugned Amendments that have the effect of imposing unwarranted restrictions on the exercise of the fundamental right, of the members of the Petitioners, to speech and expression and in effect micro-managing the functioning of the broadcasting industry," the IBDF petition reads.

The Bombay HC had observed that television broadcasting being a medium of expression for citizens to express their views and creativity is an integral part of Article 19(1)(a). It also stated that since television broadcasting involves use of airwaves which are public property, reasonable restrictions can be imposed even on grounds.

Challenging this observation, the IBDF said that reasonable restrictions on the ground of public interest is not one of the eight grounds mentioned in the constitution. It further stated that the Bombay HC order has created an unsustainable dichotomy in which the same speech, if communicated in a newspaper would enjoy the full protection of Article 19(1)(a) but if such newspaper were read out over the airwaves, it would invite restriction on grounds of public interest.

"Such an absurd outcome can draw no sustenance from the text of the Constitution or the substantial body of precedent of this Hon'ble Court delineating the contours of the fundamental right guaranteed under Article 19(1)(a). Rather, in arriving at this conclusion, the Hon'ble High Court has ignored several decisions of this Hon’ble Court including decisions of various Constitutional Benches," the petition states.

The petition also flagged the issue of incorrect reading of the Supreme Court judgement in the Ministry of Information & Broadcasting (MIB) vs Cricket Association of Bengal (CAB) case. Relying on the SC judgement, the Bombay HC order stated freedom of speech and expression through a medium which involves use of a public property like airwaves can be restricted or regulated on the ground of public interest.

The IBDF, however, pointed out that there is no judgment of SC till date, which has recognised a restriction being imposed on rights guaranteed under Article 19(1)(a) on grounds other than the eight grounds specified under Article 19(2).

"The fundamental error of reading public interest as a valid consideration for regulating speech and expression has resulted in the High Court upholding the power of TRAI to regulate pricing and manner of offering of television channels, which admittedly is a right guaranteed and protected under Article 19(1)(a) of the Constitution," the petition states.

The IBDF also contended that the Bombay HC order is bad in law since it fails to recognise and address the arbitrariness in the actions of the TRAI in notifying the amendments to the NTO. "The Impugned Amendments essentially seek to bring about substantial changes to the manner in which the broadcasting industry was functioning less than 6 months after the yet-to-be completely tested 2017 Regulatory Regime was implemented, which in itself was a tectonic shift in the pricing and offering of channels."

The petition lists down key provisions of NTO 2.0 that will impact the business of broadcasters. These are as follows:

(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. [In the example given above, the MRP of the bouquet cannot exceed Rs. 12.

"At that price, even though the broadcaster, who had priced its channel at Rs.19 for the past one year, would be willing to offer the same channel to the consumer as part of the bouquet which has 9 other channels, all for Rs.12 or less, the Respondent has now proscribed the same," the IBDF said in its petition.


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