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March 2015

SC LETS DD CARRY WORLD CUP


The Supreme Court Will Review In July Whether Future Cricket World Cup & IPL Matches Can Be Carried By Cable TV Networks & DTH By Re-Transmitting Doordarshan.


On 4 February 2015, just 10 days before the Cricket World Cup matches commenced, the Delhi High Court issued a surprise order which barred Doordarshan from sharing its live Cricket World Cup feed, on Cable TV networks, countrywide.

BCCI, Nimbus Communications and the two sports channels (ESPN and Star) had challenged the High Court's single judge November 2007 order rejecting their pleas that no cable television network, Direct-to- Home (DTH) Network, multisystem network or local cable operator could broadcast such sports events without a licence from the content owners.


1200 CR ALREADY LOST?

The Board of Control for Cricket in India (BCCI), ESPN and Star also contended that cable TV operators were getting live feeds through DD channels free of cost, resulting in a huge loss of revenue to the sports broadcasters.

Star estimated that the FTA signals to cable operators had resulted in a subscription loss of Rs. 970 crore and a loss of advertising revenue of Rs. 245 crore since 2007.



SURPRISE JUDGEMENT

A bench of Justices Badar Durrez Ahmed and Sanjeev Sachdeva passed their order "The appeal as well as writ petition (civil) 8458/2007 is allowed to the extent that the live broadcasting signal shared by ESPN/STAR by virtue of the Sports Act with Prasar Bharati shall not be carried in the designated Doordarshan channels under the must-carry obligation cast by the Cable TV Network Act on cable operators. This shall operate prospectively."

The bench also said that the strict interpretation of the provisions of Section 3 of the Sports Act makes it clear that the live broadcasting signal can only be re-transmitted by Prasar Bharati without the intervention of a cable operator.


High Court: Sharing Of Sports Signal Is Essentially For Those Citizen Who Have Access To Only Doordarshan. (It Is Not For DTH & Cable TV Subscribers)


"Strictly speaking, these networks have to be those of Prasar Bharati and not of private players, such as the cable network operators. In other words, such a shared live broadcasting signal cannot be carried through a cable operator. This limitation is not by way of a private treaty, but by way of a statutory provision. It is not as if public interest is being given a go-by for the sake of private interest," the court ruled.


SECTION3: SPORTS ACT

Under Section 3 of the Sports Act, the TV rights holder has to mandatorily share the live feed of sporting events of national importance with Prasar Bharati.

However, the court agreed with the content of the petitioners that the objective of Section 3 of the Sports Act is essentially directed towards those citizens who do not have access to cable television and only have access to the terrestrial and DTH networks of Prasar Bharati.



HC UPHOLDS STAR'S VIEW

In the order, the Court had said, "The appeal as well as writ petition (civil) 8458/2007 are allowed to the extent that the live broadcasting signal shared by ESPN/STAR by virtue of the Sports Act with Prasar Bharati, shall not be carried in the designated Doordarshan channels under the must carry obligation cast by the Cable TV Network Act on cable operators. This shall operate prospectively."

The Court also agreed that while DD was to share the event advertisement revenues 75:25 "it still does not cater to the loss of (cable TV & DTH) subscription revenue" by ESPN and Star.


DD APPEALS IN SC

On 9 February, Prasar Bharati moved the Supreme Court against Delhi High Court's order.

Prasar Bharti contended that the Delhi HC order was virtually unworkable and contrary to Section 3 of Sports Act when read along with Section 8 of the Cable TV Networks Act.


THE SPORTS BROADCASTING SIGNALS (MANDATORY SHARING WITH PRASAR BHARATI) ACT, 2007

SECTION 3: MANDATORY SHARING OF CERTAIN SPORTS BROADCASTING SIGNALS

(1) No content rights owner or holder and no television or radio broadcasting service provider shall carry a live television broadcast on any cable or Direct-to-Home network or radio commentary broadcast in India of sporting events of national importance, unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified.

(2) The terms and conditions under sub-section (1) shall also provide that the advertisement revenue sharing between the content rights owner or holder and the Prasar Bharati shall be in the ratio of not less than 75:25 in case of television coverage and 50:50 in case of radio coverage.

(3) The Central Government may specify a percentage of the revenue received by the Prasar Bharati under sub-section (2), which shall be utilised by the Prasar Bharati for broadcasting other sporting events.

Prasar Bharati CEO Jawhar Sircar told the press "The Delhi High Court order is difficult to implement because I have to reach hundreds of thousands of terrestrial homes through the satellite. The High Court is telling me to take a pound of flesh and not have any blood spilled, which is impossible."


SC HEARING

In an interim order on 11 Feb, the Supreme Court immediately stayed the High Court order, till the next hearing scheduled for 17 Feb.

The Supreme Court bench comprising Justices Ranjan Gogoi and Pinaki Chandra Ghose said that the arrangement of DD showing free feed had been there for the last 7 years and therefore it should continue. Initially, the court adjourned the case by 6 weeks stating that "World Cups will come and go". However, Star India counsel P Chidambaram prayed that the matter be heard before the end of the tournament.

The bench obliged and put up the matter for hearing on 17 February.

This provided immediate relief to Prasar Bharti, ensuring that its feed for the India versus Pakistan match, on 15 February could be retransmitted by Cable operators.


EXPLORE NEW DD CHANNEL

On 17 Feb, based on a suggestion by Star Sports, the Supreme Court asked Prasar Bharti to examine the feasibility of starting a new Doordarshan channel exclusively to telecast 2015 World Cup cricket matches without the compulsion of the must-carry clause. Star Sports pointed out that Doordarshan had created a separate channel during the Common Wealth Games, held in New Delhi.

The matter was adjourned till 19th Feb 2015.

The Court also accepted an intervention by MSO - Home Cable through Vikki Choudhary and asked him to file an additional affidavit.


SC RESERVES VERDICT

On 19 February 2015, Prasar Bharti said it was not possible for it to create a separate channel to telecast only Sports events of National importance, which Cable operators and DTH platforms would not be compelled to carry.

Appearing for the Centre and Prasar Bharati, Attorney General Mukul Rohtagi said "This is a proper case for grant of absolute stay. This court had said that cricket is like a religion in this country and millions of fellow citizens cannot be deprived of watching matches involving Team India. The legal provisions are very clear and do not provide for the scope of any balancing. There is no scope of any interference."

Concluding the hearing, the Supreme Court bench reserved its verdict in the matter. (See Box For further reading on 'Reserved Judgements.'

The Court said "We are of the view that the interim order passed earlier to the effect that the impugned order dated 4 February of the High Court shall remain suspended should continue until further orders." The judges also said, "It is our considered view that at this stage we ought not to consider the submissions made on behalf of the parties on the merits of the controversy as the same may have the effect of prejudicing either of the parties."

The Supreme Court said it was 'not inclined' to consider the suggestion made by Star Sports that Doordarshan should set up an extra/special channel.

On Star Sport's suggestion to carry a scroll stating 'The channel displaying the sports event (concerned ICC World Cup 2015 matches) is meant only for Doordarshan,' the Court said, "acceptance of the said suggestion would be understanding the provisions of Section 3 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act 2007 and Section 8 of the Cable Television Networks (Regulation) Act 1995 in a particular manner, which is not warranted at this stage of the proceedings. We, therefore, decline to accept the said second suggestion advanced on behalf of the respondents."


IMPLICATIONS

With the next hearing only in July 2015, the Cricket World Cup and the IPL matches in April 2015 will both be carried on Doordarshan and retransmitted by all Cable Networks and DTH platforms Free-To-Air. However, the matter is far from closed.

The Supreme Court has commented that strict legal reading of the Sports Broadcasting Signals Act, implies that FTA retransmission by Doordarshan is primarily for viewers that do not have Cable TV or DTH. However, it appears that the apex court did not want to disrupt status quo, while 2 important cricket tournaments were in progress.

In the mean time, the Government has the option, to plug loop holes or the text of the Sports Broadcasting Signals Act before July 2015, & definitively provide for re-transmission of Sports events of National importance, on Pay TV platforms, as well. n



INFO ON COURTS RESERVING JUDGEMENTS

Generally the court reserves judgments in cases of extreme public importance, cases which will have greater impact on the polity of India, cases in which the courts are laying down some new law etc.

When a court reserves its judgment, it means the matter has been kept in abeyance for a while. This is done after all the parties have completed their arguments and all the written submissions have been filed in the court.

Judges reserve a judgment so they can write a judgment. They may need time to research similar issues in other countries and finally think about the reasons for arriving on a particular conclusion. This entire excersise is very laborious and time consuming.

There is no fixed timeframe for the judges to write judgments but 6 months is considered to be a reasonable time for passing a judgment. If a judge keeps a judgment reserved for more than six months, any of the parties can call the attention of the Chief Justice, regarding the delay.