As reported, TRAI is facing court cases by the Indian Broadcasting Foundation (IBF) and other broadcasters before the Bombay High Court.
The court has issued notices to the Union of India (UOI) and the Telecom Regulatory Authority of India (TRAI). The Additional Solicitor General (ASG) has said that the UOI will file an affidavit on behalf of the TRAI as well.
The matter has been adjourned to 4th February by which date the affidavit will have to be filed.
Sun TV Network was granted approval for impleading the UOI, Ministry of Information and Broadcasting (MIB), through its Secretary, in the matter. Accordingly, the UOI has been impleaded as the second respondent in the matter.
Representing Sun TV Network, Senior Advocate Gopal Jain raised a challenge to the validity of Section 11(2) of the Telecom Regulatory Authority of India Act, 1997 as well as the amended tariff order and the regulations notified on 1st January 2020 by the TRAI.
Jain contended that the composite challenge raised is on account of the fact that the Regulations that are sought to be enforced directly impinge upon the rights of the petitioner, inasmuch as what the TRAI could not have done directly has been introduced indirectly and that too even without following the procedure of transparency in arriving at a conclusion which is in violation of the parameters set out in this regard in the adjudications that cover the field, including the judgment of this Court in the case of Star India Private Limited v. Department of Industrial Policy & Promotion, Ministry of Commerce and Industry, New Delhi and others, reported in 2018 2 CTC 113, as also the law laid down by the Apex Court in the case of Cellular Operators Association of India v. TRAI, reported in (2016) 7 SCC 703.
The contention is that the amended tariff, as well as the regulations cumulatively, has resulted in a regulatory shock without assessing or analysing the entire foundation for bringing about the changed tariff, which, according to him, has not been attempted empirically and which also, according to his submissions, is reflected in the minutes recorded in this regard by TRAI itself.
He further pointed out that a decision has been hastily taken and there was absolutely no material available either scientifically or legally assessed that could support the introduction of the tariff which according to him is absolutely not subscriber friendly, for which he has relied on certain illustrations that have been indicated in the affidavit filed in support of the petition.
Jain also argued that neither mathematically nor even applying the regulatory jurisprudence, which has to be necessarily subscriber friendly, has any assessment been made and it appears to be an assessment made on an individual analysis made by the TRAI or on the basis of information which can be termed to be speculative and not based on any scientific data.
He also submitted that this revisit had to be made within two years of the last tariff that had been introduced, but the manner in which a hasty decision has been taken within a span of
four months has resulted not only in the drafting of an erroneous Regulation regarding discounts, but also an error of classification, or even otherwise on the merits of the tariffs that are sought to be enforced, which, in effect, ultimately do not intend to provide any benefit to the subscriber.
He further stated that neither the broadcaster nor the subscriber is to gain and it is rather “the middlemen” who would be absolutely gaining out of this transaction, where they have an assured revenue without caring for any assessment of the choice or the price affordability vis-a-vis the ultimate consumer or the broadcaster. Several other submissions have also been raised to support the aforesaid contentions.
The court was also informed that the IBF, of which Sun TV Network is also a member, has already challenged the tariff order and regulations before the Bombay High Court which has been tagged along with other petitions filed to the same effect, where the TRAI has filed a counter-affidavit and by consent, the matter is now posted for 30th January.