The Telecom Disputes Settlement Appellate Tribunal (TDSAT) has refused to grant a stay on the combined plea filed by Star TV, Zee Turner and Set Discovery. The plea was made against the order passed by the sector regulator Telecom Regulatory Authority of India (TRAI), making it mandatory for broadcasters to make their channels available on an a la carte basis to multi-system operators (MSOs).

The order comes into effect from 1 December 2007. Broadcasters are required to report the a la carte price to TRAI before the next hearing, which is scheduled for December 11.

TDSAT has issued notices to TRAI and the two MSOs, and they, along with the petitioners, are required to file their replies before the case is due for the next hearing on December 11.

The apex tribunal heard arguments from Maninder Singh for Zee Turner and Ramji Srinivas for Star, who opined that even though the TRAI order requires broadcasters to offer the channels on a la carte basis, subscribers are not allowed that choice. This order contradicts TRAI’s own affidavit issued earlier.

Further, both Singh and Srinivas felt that this order will become a potent tool in the hands of the MSOs to elicit high carriage fees from broadcasters, which in turn could severely affect their chief revenue stream—subscription.

"TRAI itself has been alive to the dangers of MSOs extorting huge carriage fees, and even consumer organisations have said this order is a farce since it will in no way benefit them," said Srinivas, to drive home his point.

The counsels also argued that TRAI had already admitted that the prices will be higher in non-CAS areas because of unfair practices of under-declaration as a result of which broadcasters lose out on full remittance.  "It must be noted that the ceiling that has been imposed in the top cities make the prices per channel even less than those in the CAS areas," they stated.

The prices for all the pay channels in CAS areas has been fixed at INR 5 but as per the Tariff Order for non-CAS areas, the prices have dropped down to INR 4 and INR 2, which defeats all logic.  However, Arun Kumar, TDSAT Chairperson, said that the order has been passed with the aim of benefitting the subscriber, and he did not deem it fit to grant a stay order.

In their counter-argument, TRAI’s senior counsel, Rakesh Dwivedi was of the view that though the broadcasters claim that there is a lack of mechanism for implementing subscriber choice in non-CAS areas, the fact remains that subscribers would demand for the best channels, as a result of which unbundling is expected to occur.

"The upper limit of tariff being fixed, we shall charge that from the subscribers, and they would then force us to give the best channels of their choice and this would automatically lead to unbundling.

In a related development, Hathway has been allowed to implead in the case; an earlier case involving Incablenet will be clubbed with the present case for a joint hearing.

TDAST has asked TRAI and the MSOs to file their replies to the main petition by 3 December. Broadcasters will be allowed to reply after three days and the hearing will resume on 11 December.