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The Delhi High Court has issued notice to the I&B Ministry in a petition seeking the cancellation of downlinking and up-linking permissions granted to Star India and Discovery Network Asia Pacific (Discovery).
The petition filed by one Vikki Choudhry and Home Cable Network Private Limited was heard by a Bench of Chief Justice G Rohini and Justice Jayant Nath.
Advocates Vivek Sarin, Md. Danish and Vijay Jha appeared for the petitioner in the matter. Advocates Anil Soni and Vinod Tiwari appeared for the Ministry of Information and Broadcasting.
The petitioner’s contention is that Star India and Discovery are in violation of the Programme and Advertisement Code prescribed under Rule 7 of the Cable Network rules, 1994 read with Section 6 of Cable Network Regulation Act, 1995.
As per the petition, the license granted to Star and Discovery prescribes compliance with Programme and Advertisement Code. Accordingly, a channel can either be advertisement supported or subscription supported but not both. Further, if a channel is advertisement supported, it has to confirm to 12-minute per hour cap for advertisements.
The contention of the petitioner is that Star and Discovery, which have 13 and 8 pay channels respectively, have violated the advertisement code by broadcasting advertisements despite being subscription based channels.
Besides, the petitioner shave alleged that the advertisements also exceed the 12-minute per hour cap.
As per the petition,
“….the provision of Rule 7 (11) of CTN Rules, 1994 as applicable to pay TV channels is the most important tariff structure and consumer welfare measure. The programing service results into content which is in the nature of natural monopoly which justifies regulation of tariff by regulator like TRAI.
The tariff is required to be fair and reasonable which not only considers the reasonable return/ reasonable profit while protecting consumers from excessive charges. Such fair and reasonable tariff can be based only on the cost involved and revenue required for the broadcasters operating channels on reasonable profit. In case revenue is met from the advertisement within the cap of 12 minutes per hour, then subscription cannot be charged and channels must be declared/ provided on free to air/ free to view basis. In case, broadcasters decide to charge subscription, then no advertisement can be shown during the programme.”
The petitioners have contended that they have the right to receive broadcasting content on fair and reasonable charges and in case channel is supported by the advertisement revenue, then petitioners have right to receive such channel on free to air/ view basis.
“In case the subscription is charged, then the petitioners are entitled to receive channels without advertisement. The respondents are indulging in unfair practices and abusing the dominant position in the market to the detriment of general consumers and of the petitioners.
They have also claimed that their fundamental rights under Articles 19 and 21 are violated by the “unjust extraction of money by the monopoly granted [to broadcasters] by the State.”
“Broadcasting licenses is a State largess and subject to reasonable restrictions. The consumers have been burdened with unwanted advertising and also with subscription charges. Broadcasters are under obligation and fundamental duty as they are enjoying the state largesse and natural monopoly and are entitled to enjoy only one of the two streams of revenue – either from advertising or from subscription.”
The petitioners have stated in the petition that they were constrained to approach the court since the Ministry of Information and Broadcasting, which has been arraigned as Respondent no. 1, failed to take any action till date.
The petitioners have, inter alia, made the following prayers.
The court issued notice and tagged the case along with another petition challenging the QoS Regulation prescribed by TRAI.
The matter will now be heard on August 1.
Read the petition below.