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W.P.(CI 1029/2019
9X IVffiDIA PVT.LTD.AND ORS. Petitioners
Through: Mr Arriit Sibal, Sr. Advocate with Ml- Kunal Tandon, Mr Shashank , Shekhar and Mr Prateek Jain, Advocates.
Chandra and Mr Aiimol Nag, Advocates. ' WITH, 22/ .
B4U BROADBAND(INDIA)PVT.LTD.AND ANR. Petitioners
Through: Mr Neeraj Kishan .Kaul, Sr.
Advocate with h4i- Kunal Taridon, Mr Shashank Shekhar,IVIr Prateek
Jain and Ms Chanav,Advocates. .
Through:. Mr Rajeev . Sharma, Mr Saket Chandra and Mr Anmdl Nag, Advocates. . ... . . '
AND - '.
JUDGMENT
23. - ^. •. ■. ■ 2019:DHC:7901 s Through: Mr Amit Sibal, Sr. Advocate with Mr Kunal Taiidon, Mr Shashank Shekhar and Mr Prateek Jain, versus PRASARBHARTI Through:.....Respondent Mr Rajeev Sharma, Mr Saket Chandra and Mr Anmol Nag, f. CORAM: HON'BLE MR.JUSTICE VIBHU BAKHRU ORDER % 04.02.2019 CM No.4662/2019 in W.P.(C)1029/2019 CM No.4666/2019 in W.P.(CU030/2019 CM No.4671/2019 in W.P.tCl 1032/2019
1. Allowed,subjectto alljust exceptions.
2. The applications are disposed of. W.P.(C^ 1029/2019& CM No.4661/2019 W.P.(C11030/2019& CM No.4665/2019 W.P.(C)1032/2019& CM No.4670/2019
3. The petitioners have filed the present petitions, inter alia, impugning the "Policy Guidelinesfor Allotment ofSlots ofDD Free Dish Direct-To-Home Platform to Satellite TV Channels" dated 15.01.2019 (hereafter 'the Impugned Guidelines') and,the respective disconnection notices dated 18.01.2019 sent to the petitioners informing them thatthe respondentwould conductthe 38'^e-auction oh 11.02.2019.
4. The petitioners are broadcasters who own and operate television channels airing music ofvarious genres and in various languages. Their grievance in the presentpetitions relatesto the reserve price fixed forthe slotsfor music channels under theImpugned Guidelines.
5. Respondent ho.l (Prasar Bharti) is India's public service broadcaster. The petitioners are aggrieved by the Impugned Guidelines for e-ailction of slots to carry private TV channels on the respondent's "DD Free-Dish Platform". According to the petitioners the Impugned Guidelines are arbitrary and unreasonable. It is contended on behalf of the petitioners that the Impugned Guidelines are framed without consultation with the stake holders and, thus, offend Article 14 of the Constitution ofIndia.
6. Prasar Bharti commenced its Direct-to-Home(DTH)services in December, 2004, which was later renamed as 'DD Free Dish' on 27.08.2013.By an order dated 16.12.2010,rendered in Zee Turner Ltd. & Anr. y. Prasar Bharati being Petition No. 407(C) of 2010, the Telecom Disputes Settlement and Appellate Tribunal(TDSAT)directed Prasar Bharti to take a policy decision with regard to the allotment of slots to new applicants. Pursuant to the said direction, Prasar Bharti conducted its first e-auction for available slots on 27.07.2011. The petitioner submitsthattill date,36such e-auctions have been conducted. Thereafter, on 04.08.2017 Prasar Bharati notified the terms and conditions for the 37^^ such e^auction, due to be conducted on announced that the aforementioned auction would be kept in abeyance,due to administrative reasons.
7. One ofthe private broadcasters challengedthe public notice before the TDSAT {Cinema 24x[7] Pvt Ltd.v. Prasar Bharati being Broadcasting Petition No. 391 of2017). On 12.10.2017, the TDSAT passed an order, inter alia, directing that ifthe said petitioner(Cinema 24x7Pvt.Ltd.)approaches Prasad Bharti with an application for interim arrangementon apro-ratabasis,the said application would beconsidered along with applications ofother similarly placed persons,in accordance with law. In the meanwhile, several other parties also approached the TDSAT by filing separate petitions seeking extension oftheir erstwhile agreements on a pro-rata basis. On 27.10.2017,the TDSAT passed an order for an interim arrangement providing continuity on account of delay in holding ofthe e-auction.
8. On 15.06.2018,the respondent sent a letter to various interested parties, including the petitioners, inviting them for a discussion with regard to the manner in which online e-auctions ofthe sales could be conducted.It is the petitioner's case that although a meeting took place, the Impugned Guidelines were never discussed. It is stated that the petitioners were never informed asto the contents ofthe said guidelines in order for them to participate in the discussions in a meaningful manner.. V.
10. Mr Sibal, learned senior counsel appearing for the;petitioners in W.P.(C) 1029/2019, assailed the Impugned Guidelines on essentially four fronts. First, he submitted that the music,channels were free to air ^ channels andthe petitioners were notcollecting any subscription amount, thusthe petitioners could notbe classifiedinthe same bucketas General Entertainment Channels (GEC) and other channels. Second, he contended that music-channels were loss making channels and yet the reserve price ofthe prospective slots to such channels was l|:igher than the reserve price for news channels. Third,he referred to paragraph 2.[3] ofthe impugned guidelines,which provided that differential pricing for genre(language)willbe based on principle ofhigher reserve price for genre(language) y/ith greater commercial potential. He submitted that the aforesaid guiding principle was notfoilowed,inasmuch as,the music channels have been.placed in bucket"B" along with sports and GEC channels.Hecontended thatthecommercial potential ofspprts channels is greaterthan musicchannelsand,therefore,classifyirigthesame inone category is arbitrar}^.jand■unreasonable. Foprth, he contended that the cpmrnercial potential of music channels;was much lower than the commercial potential of news chamiels arid yet, the reserve:price for news channelshasbeenfixed at ?7 crores andmusic diannels^l^ fixed at ^10 crores./lie also referred to the.financi^ statement of the.petitioners.to contend that whereas the petitioners-channels were loss making,;thenewschannelsweremakingprofits,Lastly,hereferredtothe decisiop of the Suprenie Court in Cellular Operators Association of had been held with the petitioners, the impugned guidelines were arbitrary and unreasonable.
11. Mr Neeraj Kishan Kaul,learned senior counsel appearing for the petitionersin W.P.(C)1030/2019,also advanced contentionssimilarto those advanced by Mr Sibal.
12. Beforeproceedingfurther,itwould berelevanttoreferto Article[2] oftheImpugned Guidelines which setsoutthe guidingprinciplesforthe revised policy.Article2is setoutbelow:- "2.GuidingPrinciplesforthe revised policy. 2.[1] CarriageofPrivateChannelsonDDFreeDish willbe based on e-auctions but with differential pricing based on genre(language).
22 Private satellite TV Channels desirous of placing their channels on DD Free Dish shall be allowed to bid onlyin e-Auctions specific to the genre(language)they belong to. For this purpose Broadcasters^ shall be required to declare genre andlanguage oftheir charmel/ (s)toPrasarBharatiwhileapplyingfore-auctionbidding processtobeeligibletoparticipateintheeauction.
23 Differential pricing for genre (language) will be based on the principle ofhigher Reserve Price for genre (language)withgreatercommercialpotential. 24To maximizerevenue potentialfrom e-Auctions and to ensure'a stable portfolio of channels from a vmwer standpoint,e-Auctions will be held on annual basis for Reserve Price and progressing in a descending order of Reserve Price by genre (language) till all vacant unreserved MPEG2slots,are filled up. 2.[6] The payment terms for successful bidders upon award of.a slot will be revised to ensure a sustainable cash flow while lowering entry hairier across genres to encourage maximum participation of bidders in e- Auctions. _. _ 27'Po promote the DD Free Dish authorised Set Top Boxes/bidding in e-Auction of vacant unreserved MPEG-4 slots will be open to all genre(language)atthe same invitational ReservePricethatis irrespective ofthe genre(language). 2.[8] Placement ofregional channels ofDoordarshan that are currently not available on E)TH/Cable may be considered for placement on vacant MPEG 4 slots reserved forthe same."
13. Para 2.[3] ofthe impugned guidelines indicates thatthe respondent wouldadoptapolicyofdifferentialpricingforgenre(language)basedon the principle,ofa higher reserve price for greater commercial potential. The word "Genre" is defined in the opening chapter captioned 'Definitions',oftheImpugned Guidelines,and the relevantclause reads asunder:- "7. GENRE: Glassification of a channel based on its content as 'Devotional', or 'General Entertainment or 'Infotainment' or 'Kids' or 'Movies' or 'Music' or 'News and Current affairs' or 'Sports' or Teleshop or 'Miscellaneous'." Guidelines,the respondent would fix the reserve price depending on the commercial potential of the genre and the language. In terms of the above,the respondent has classified various genre (languages)in five categoriestermed asBuckets A+,A,B,C&D.Reserve priceforMPEG- 2 channels has been fixed under Paragraph 3.3.[1] of the Impugned Guidelines,and is as under "3.3.[1] The Reserve Price forthe coirimencement ofe- ci, auction for differentBuckets as provided in clause 3.[2] above,shall be as under: BUCKETS RESERVE PRICE Bucket A+ Rs.i[5].00Cr Bucket A Rs.l[2].00Cr BucketB Rs.10.00 Cr BucketC Rs.7.00 Cr BucketD Rs.600Cr A tabular statement indicating the classification of various genre (language)forMPEG-2 channelsissetoutbelow:-.Type of sots Bucket Geure/languageofchannel Reserve Price MPEG-
2. Bucket A+ All GEC (Hindi) cnarmeis Teleshopping channels Rs.15.00 Crore BucketB All Music (Hindi) Channels, Sports (Hindi) Channels, GEC (Bhojpuri)Movies'(Bhojpuri) Rs.10.00 Crore BucketC News & Current Affairs(Hindi) Channels, News & Current Affairs (English) and News &, Current Affairs (Punjabi) Channels Rs.7.00 Crore BucketD All other remaining. Genre (Language)Chamiels Rs.6.00. Crore -#
15. Itis apparentfrom the above that all music channels in the Hindi language are categorized under Bucket'B'and musid channels in.other languages would fallunder the residuary classification -Bucket'D'. According to the petitioners, the said classification is not as per the commercialpotentialofthatgenre— music(Hindi).
16. It is apparent that the.Impugned Guidelines embody a policy decision and- the same would not be amenable to judicial review on merits. Clearly,it would not be appositerfon this- Court to enter into a cpntroversy asto the assessmentofthe comipereialpotential ofvarious genres/channels. The question offixing a reserve price is a matter of commercial discretion of.the respondent,this Court cannot be called upon to enter into a controversy as to the assessment whether a news chanjielhasa highercommercialpotentialthanaHindimusic,channel.
17. ]\frSharma,:lemmefrcouhSelappearing:fortherespondent,had also pointed outthatthetotalrevenue ofthe^petitioner9X MediaPvt:Ltd. ' l asrevenuefrom operations.Hesubmitted thatthe reserve priceofaslot wasaverysmallfractionoftherevenue and,therefore,the,said decision could not be.questioned. He also pointed out that the petitioners were -already paying eight crores and the reserve price was only,25% more than the existing price.
18. In view ofthe aforesaid,this Court is unable to accept that the ImpugnedGuidelinesorthereservepricefixedthereunderwouldamount to disabling an entrepreneur from carrying on the business of broadcasting a music channel. It is also relevant to note that the'DD Free-Dish' is not the only platform for airing or broadcasting a TV Channelandtherearemultipleplatforms,whicharenowavailable.Thus, even ifitisacceptedthatthereserve pricefixedbyrespondentisonthe^ higherside,thesamewouldnotamounttoexcludingthepetitionersfrom the business ofbroadcasting.Itcannot,by any stretch,be construed as violativeofArticle 19(l)(g)ofthe ConstitutionofIndia. ■
19. Although,PrasarBhartiisaStatewithinthemeaningofArticle 12, ofthe Constitution ofIndia,nonetheless,it is fully,entitled to carry affairs on a commercial basis to fix the prices for its facilities. Prasar Bharti'scommercialdecisiontofixthepricesisnotamenabletojudicial review under Article 226 of the Constitution of India, unless it is established that the same is so arbitrary or so unreasonable that no reasonable person could possibly take such a decision,iWedne^bury Commissioner & Ors v. R. Krishnamurthy;(2015) 2SCC 796, the SupremeCourtclearlyheldthatitwouldnotbewithinthedomainofthe ' Courts to embark upon an enquiry as to whether a particuiar pubiic poiicy is wise and acceptabie or whether a better poiicy couid be eyoived.;A simiiar view was aiso expressed by the Supreme Court m, rUlianurlyarkkaiPadukappu Mdiyam v. Union ofIndia:(2009)7 SCC561. 2i. It was contended by Mr Sibaithatpetitioners are notchaiienging the poiicy,'butoniythe impiementationthereof.This contention is aiso unpersuasive as the petitioners are seekingto chaiienge the fixation of reservepricewhichitseifisamatterofpoiicy.Para[2].3oftheImpugned Guideiinesoniyprovidesforoneoftheguidingprincipies.Thediscretion ofPrasarBhartitofixthereserveprice asperitscommerciai assessment is not curtailed.
22. ThecontentionthattheImpugnedGuideiinefailfouioftheArticie 14 ofthe Constitution ofIndia,inasmuch as,the petitioners have not been consuited is aiso unpersuasive. The reiiance piaced by the petitionersonthe decisionoftheSupremeCourtin Cellular Operators (supra)ismispiaced. Inthesaidcase,theSupremeCourtwasexamining the scope ofthe expression "transparency". The Court examined the Regulations framed by the Teiecom Regulatory Authonty of India (TRAI)in exercise of powers under Section 11(4) of the Telecom RegulatoryAuthorityofIndiaAct,1997.Thesaidprovisionrequiredthe stakeholders and also allowed them to make submissions before it.-The.Courtfound thatalthoughthe consultations have been held,there wasno discussion or reasoning dealing with the arguments put forth by service providers withregardto thereasonsfor call drops.Sincethe conclusion was bereft ofany reasoning in this regard,the Supreme Court set aside the same.However,in the present case,the Impugned Guidelines have been framed in exercise of administrative powers, and not under any Statute,whichrequirespriorconsultationforsuch anexercise.
23. As stated above,this Court does not consider it apposite to enter into a controversy as to the evaluation ofthe commercial potential of various TV Channels or the potential of various genres of television content.
24. The petitions are, accordingly, dismissed. The pending applications are also disposed of.
25. Orderdastiundersignaturesofthe CourtMaster.
VIBHU BAKHRU,J FEBRUARY 04,2019 pky