2018 (5) TMI 1762 - MADRAS HIGH COURT

Broadcasting services - Whether the impugned Regulations and the Tariff Order can exist and operate through the powers conferred to and under the TRAI Act, 1997?

Whether the impugned Regulations and the Tariff Order would impinge upon the provisions of Copyright Act, 1957?

Held that:- The jurisdiction of the enactments have already been dealt with in extenso. Suffice it is to state that TRAI Act involves regulation of airwaves and frequencies being public properties, touches upon various stakeholders with primacy to the public interest. To put it differently, the general public is the king, being the subscriber whose interest should be guarded and protected under the Act as a prime factor. TRAI is thus, obligated to take adequate measures as mandated by the statute. The Cable Television Networks (Regulation) Act, 1995 and the Indian Telegraph Act, 1885 go with the TRAI Act strengthening the hands of the authority. TRAI Act came into being on the need enough to have a better enactment than the Telegraph Act, 1885, supported and safeguarded by the Cable Television Networks (Regulation) Act, 1995. This Act deals with cable television network. That is the reason why, the authority is the same along with the definition of digital addressable system and introduction transmission of programmes through digital addressable system etc. Therefore, this enactment deals with the last part of the broadcast.

Section 2(k) of the TRAI Act merely explains a telecommunication service. Therefore, even assuming it can be divided into three parts as suggested by the learned counsel for the petitioners, the conclusion does not change. The TRAI Act does not deal with a mere means of transmission alone. Perhaps the petitioners do understand it rather well. That is the reason why they laid the challenge before the Division Bench of Delhi High Court to the very provision. The principle governing the noscitur a sociis cannot be applied as the petitioner suggested. There is no ambiguity on the definition provision.

The permission obtained from the Central Government would bring a broadcaster within the fold of a service provider. The petitioners themselves claimed and raised disputes as service providers. A finding was also rendered by the Court which reached finality. Thus, as a natural sequitor, the Regulations and Tariff Order would ipso facto apply to the petitioners' case.

While there is no BRR involved under the TRAI Act, no right has been given to a television channel under Section 37 of the Copyright Act. Merely because, the television channel becomes a broadcaster, no independent right can be placed as against the “broadcasting” which may involve any work or a programme coming under the Act's purview. In this connection, the definition of TV Channel as adumbrated in the impugned regulations will have to be seen. While the copyright does not make any reference to a TV Channel, it has been referred accordingly as such, only after obtaining permission for downlinking under the impugned regulations. Therefore, the TV channel has been understood in a very restrictive manner under the impugned regulations. Needless to state that the Cable Television Networks (Regulation) Act, 1995, also deals with the television channel as against the Copyright Act.

A party, who approbates and reprobates should not be shown any indulgence by the Court. Certainly, the law governing "issue estoppel" would also come into play. It also applies to the declaration made by the Court on the basis of the stand taken by the petitioners that it is a service provider under the TRAI Act.

Both the Cable Television Networks (Regulation) Act, 1995, and the TRAI Act are coming under entry 31 of List I of VII schedule. Therefore, if once competency is attributable to the Cable Television Networks (Regulation) Act, 1995, it is axiomatic that the same has to be extended to the TRAI Act as well. On the same analogy, a power conferred under the aforesaid Act cannot be imported into the Copyright Act through the amendments made. Merely because the petitioners are affected, the impugned regulation and the amendment would not partake the character of content. While there is no material to support the conclusion on content, as contended by the petitioners, the judgments inter se governing the field have not been taken note of.

Petition disposed off.