Acting well within the scope of powers: TRAI says in its affidavit over OTT matter

TDSAT, meanwhile, has adjourned the hearing in the case to March 3

e4m by Javed Farooqui
Published: Jan 25, 2022 8:31 AM  | 5 min read

The Telecom Regulatory Authority of India (TRAI) has filed a short reply affidavit in response to the petitions filed by broadcasters in the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) challenging the regulator's powers to seek information about the mode of transmission of linear TV channels on over the top (OTT) platforms.

Star India, Sony Pictures Networks India (SPNI), and Sun TV Network have challenged the TRAI's order dated 25th November 2021 seeking detailed architecture indicating which media is being used to deliver linear content to their own as well as third-party streaming platforms. The broadcasters have contended that the issue is beyond TRAI's regulatory powers and have refused to share any information with the regulator.

The TRAI has contended that the appeals filed by the broadcasters ought to be dismissed since these are without any merit. "The appellants' case that the authority is seeking to regulate OTT platforms is without any substance. Authority is acting well within the scope of its powers that under Section 12(1)(a) of TRAI Act read with Section 11(1)(b)(i) of TRAI Act," the regulator said in its affidavit.

While denying the allegations of the broadcasters, the TRAI noted that the broadcasters have equated the regulator's statutory powers to issue orders to service providers under Section 12 of Telecom Authority of India Act, 1997 (TRAI Act) with that of regulating OTT platforms, even though such orders have been issued to broadcasters and not OTT platform operators.

"In doing it, the appellant has lost sight of the fact that TRAI Act empowers Authority to discharge its functions, also by issuing orders under Section 12 of TRAI Act. Authority's order dated 25.11.2021 issued by it under Section 12 of TRAI Act is well within the powers of Authority under TRAI Act God is consistent with the provisions of TRAI Act. Thus, Appeal is without merit, and it deserves to be rejected at the threshold. It is prayed accordingly," the TRAI said in its reply to the TDSAT.

The authority contended that the TRAI Act empowers it to regulate telecommunication services including broadcasting and cable services. The broadcasting services have not been defined in TRAI Act, however, they are defined in Interconnection Regulations, 2017.

"Broadcasting involves usage of airwaves and is a licenced and regulated activity. The licences are issued to broadcasters and Distribution Platform Operators (DPOs) by the Ministry of Information and Broadcasting (MIB) and the interrelationship between broadcasters, DPOs, and consumers is regulated by Authority. Usage of airwaves, a scarce resource, means that broadcasting has to be carried out strictly and scrupulously in line with, inter alia, the laws governing the licenced and regulated activity," it argued.

The authority also said it has called for information from the broadcasters to examine if there is any violation of Clause 5.6 of Downlinking Guidelines. It further stated that the 25th November order merely requires the broadcasters to furnish information on streaming linear channels on OTT platforms.

"Thus, it is an exercise of Authority's power under Section 11(1) Q)(i) of TRAI Act. A conjoint reading of Impugned Order and Authority's letter dated 28.07.2021, which preceded impugned Order, indicates that vide Impugned Order, Authority has merely called upon the Appellant to provide a detailed architecture indicating which media (satellite, fibre, or any other media) is being used to deliver the content of linear channels to its own OTT platform or any third party OTT platform," the affidavit reads.

The TRAI also argued that broadcasters cannot claim to be outside the jurisdiction of authority as they have been granted licence for the use of airwaves to transmit signals of TV channels to consumers in a particular setup (under Clause 5.6 of Downlinking Guidelines). Clause 5.6 of the Downlinking Guidelines mandates that a broadcaster shall provide satellite TV channel signals reception decoders only to MSOs/cable operators, DTH operators, IPTV Service Provider, or a HITS operator.

"That in the event that the Appellant is using the same architecture for a purpose other than that permitted by the uplink/downlink permission, then such usage amounts to a violation of terms of permissions granted on the part of the Appellant," it added.

The TRAI further stated that a conjoint reading of the guidelines and the permissions granted to the broadcasters by MIB indicates that the permission has been granted to broadcast a TV channel signal with a particular TV channel name and logo and these channels are broadcast to the consumers, in mode and manner governed by the permissions.

"The Authority is conscious of the facts and stand taken by it before various judicial forums in the context of OTT platforms and is not concerned, presently, about the contents of broadcasters being made available by them on the OTT platforms, that the authority is, however, concerned about the fact that linear TV channels of broadcasters (the Appellant herein) are available for viewing through streaming services on OTT platforms owned by the broadcasters," it noted.

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has adjourned the Telecom Regulatory Authority of India (TRAI) versus broadcaster matter to 3rd March.

In the previous hearing, the TDSAT had directed the TRAI not to take coercive steps against broadcasters for not furnishing information related to the mode of retransmission of linear channels on OTT platforms.

"The short reply filed on behalf of TRAI in BA No 1 of 2021 is being adopted by TRAI as reply in the other two appeals (BA No 2 of 2021 and BA No 1 of 2022) also. Let rejoinder be filed within four weeks, as prayed. Post the matter under the same head on 3.3.2022. Interim order to continue till the next date," the TDSAT said in an order on Monday.

The TRAI had argued that it has sought information from broadcasters in their capacity as broadcasters and not as OTT platforms. The TRAI argued that they have the right to seek information from broadcasters. It further stated that the information has been sought to ascertain whether or not there is a breach.

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