All India Digital Cable Federation and Kerala Communicatiors Cable Ltd. v. Telecom Regulatory Authority of India and SITI Networks Ltd.

W.P.(C) No.428/20 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** **WP(C) NO. 428 OF 2020** ## **PETITIONERS:** 1 ALL INDIA DIGITAL CABLE FEDERATION 236 OKHLA INDUSTRIAL ESTATE PHASE-III, NEW DELHI-110 020, INDIA REPRESENTED BY ITS SECRETARY GENERAL, MANOJ PRAKASH CHHANGANI. 2 KERALA COMMUNICATIORS CABLE LTD. 1ST FLOOR, 142-H 1 AM COA BHAVAN, THOUNDAYIL ROAD, PANAMPILLY NAGAR, ERNAKULAM-682036, KERALA REPRESENTED BY ITS MANAGING DIRECTOR, MR. SURESH KUMAR P.P. BY ADVS. M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.JAI MOHAN ## **RESPONDENTS:** 1 TELECOM REGULATORY AUTHORITY OF INDIA MAHANAGAR DOORSANCHAR BHAWAN, JAWAHARLAL NEHRU MARG (OLD MINTO ROAD) NEW DELHI-110 002, INDIA, REPRESENTED BY ITS SECRETARY. 2 M/S.SITI NETWORKS LTD. HAVING ITS REGISTERED OFFICE AT UNIT NO.38, 1ST FLOOR, A WING MADHU INDUSTRIAL ESTATE, P.B. MARG,WARLI, MUMBAI-400013, ALSO HAVING REGIONAL OFFICE. REPRESENTED BY ITS AUTHORISED OFFICER MR.JAYAKUMAR.V.G. ADDL.R2 IS IMPLEADED AS PER ORDER DATED 28.02.2020 IN IA 2/2020 IN WPC NO. 428/2020 W.P.(C) No.428/20 2 BY ADVS. SRI.S.MANU SRI.JAISHANKAR V.NAIR, CGC J.R.PREM NAVAZ SHRI.SUMEEN S. RITWIKA NANDA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2021, THE COURT ON 12.07.2021 DELIVERED THE FOLLOWING: W.P.(C) No.428/20 3 ## **ANU SIVARAMAN, J.** **== = = = = = = = = = = = = = = W.P.(C) No.428 of 2020** **= = = = = = = = = = = = = = = = Dated this the 12th day of July, 2021** ## **JUDGMENT** ## 1. This writ petition is filed seeking the following reliefs :- - “(i) Issue a writ, direction or order in the nature of mandamus or any other writ, order or direction quashing and setting aside the Exhibit P-1 Telecommunication (Broadcasting and Cable) Services Register of Interconnection Agreements and All such Other Matters Regulation, 2019 issued by the Respondent; or - (ii) Alternatively, issue a writ, direction or order in the nature of mandamus or any other writ, order or direction quashing and setting aside Regulations 2(y), 3(2), 3(3), 3(4), 3(6), 3(7), 3(8), 4 and 6 of Exhibit P-1 Telecommunication (Broadcasting and Cable) Services Register of Interconnection Agreements and All Such Other Matters Regulation, 2019 issued by the Respondent.” 2. Heard the learned Senior Counsel, Sri.Arun Kathpalia and Senior Counsel Sri.Jayant Mehta appearing for the petitioners as briefed by Adv.Jai Mohan and Sri.S.Manu and Sri.Jaisankar V. Nair, the learned counsel appearing for the 1[st] respondent as well as Smt.Ritwika Nanda appearing for the additionally impleaded respondent. 3. It is submitted that the principal challenge in this writ petition is against the impugned Regulations in so far as they require W.P.(C) No.428/20 4 the distributors of signals of television channels to disclose the information regarding agreements with regard to placement, agreements with regard to marketing and any other technical or commercial arrangements. The regulations under challenge read as follows:- Regulation 2 (y) defines “interconnection agreement” as follows :- (y) “interconnection agreement” with all its grammatical variations and cognate expressions means agreements on interconnection providing technical and commercial terms and conditions for distribution of signals of television channel.” Regulations 3(2), 3(3), 3(4),3(6), 3(7), 3(8), and 4 are as follows:- “3. Reporting of information relating to reference interconnection offers and inter-connection agreements by broadcaster and distributor._ ## xxxxx (2) Every distributor shall, through its compliance officer, report to the Authority, its RIO and modifications or amendments thereto, simultaneously when the same is published on its website as per regulations 8, of the Interconnection Regulations, in the manner and format as provided for in Schedule II, or as may be prescribed by the Authority by a direction or an order from time to time. (3)Every broadcaster shall, through its compliance officer, report to the Authority, the information relating to all interconnection agreements in respect of channels (i) for which RIO has been published as per regulations 7, of the Interconnection Regulations. (ii) for placement, W.P.(C) No.428/20 5 (iii) for marketing, or (iv) for any other technical or commercial arrangements, and modifications or amendments thereto, within thirty days from the date of signing of such agreements and modifications or amendments, as the case may be, in three parts, namely, Parts A, B and C, in the manner and format as provided for in Schedule-III or as may be prescribed by the Authority by a direction or an order from time to time. Provided that the information related to all such existing agreements, signed up to the date of commencement of these regulations, shall be reported within thirty days from the date of commencement of these regulations. (4) Every reporting distributor shall, through its compliance officer, report to the Authority, the information relating to all interconnection agreements for which RIO has been published as per regulations 8, of the Interconnection Regulations, and modifications or amendments thereto, within thirty days from the date of signing of such agreements and modifications or amendments, as the case may be, in the manner and format as provided for in Schedule-IV or as may be prescribed by the Authority by a direction or an order from time to time. Provided that information related to all such existing agreements, signed up to the date of commencement of these regulations, shall be reported within thirty days from the date of commencement of these regulations. Provided further that in cases where the average active subscriber base of its entire distribution network, including joint venture(s), if any, of a distributor, who was a reporting distributor in the preceding year, falls below the reporting threshold, then such distributor shall, within thirty days from the end of March of the respective year, furnish to the Authority, a certificate to that effect, duly signed by its compliance officer. W.P.(C) No.428/20 6 (5) xxxxx xxxxx xxxxx (6) Every reporting distributor shall, through its compliance officer, verify the information filed by the broadcaster, under sub regulation (3), in respect of all interconnection agreements and modifications or amendments thereto, signed between them, within fifteen days from the date of filing by the broadcaster, in the manner as may be prescribed by the Authority by a direction or an order from time to time. Provided that if a broadcaster fails to file the information in respect of such agreements and modifications or amendments thereto, then the concerned reporting distributor shall report to the Authority, the information relating to the same, within forty five days from the date of signing of such agreements and modifications or amendments, as the case may be: (7) Every broadcaster shall, through its compliance officer, verify the information filed by the reporting distributor, under sub regulation (4), in respect of all interconnection agreements and modifications or amendments thereto, signed between them, within fifteen days from the date of filing by the reporting distributor, in the manner as may be prescribed by the Authority by a direction or an order from time to time. Provided that if a reporting distributor fails to file the information in respect of any such agreements and modifications or amendments thereto, then the concerned broadcaster shall report to the Authority, the information relating to the same, within forty five days from the date of signing of such agreements and modifications or amendments, as the case may be. (8) Every broadcaster and reporting distributor shall, within thirty days from the end of March of every year, also furnish to the Authority a certificate, duly signed by its compliance officer, to the effect that to the best of their knowledge, all the requisite information related to all the interconnection W.P.(C) No.428/20 7 agreements and modifications or amendments thereto, liable to be reported within the preceding financial year, have been reported, and all the information submitted is true, correct and complete in all respects. 4. Consequences for failure to report or verify the reported information by the broadcaster or distributor(1) If any broadcaster or distributor fails to furnish the information or certificate or fails to verify the reported information, as required under regulation 3, by the due date, it shall, without prejudice to the terms and conditions of its license/permission/registration, or the Act or rules or regulations or order made or direction issued thereunder, be liable to pay, by way of financial disincentive, an amount of rupees one thousand per day for default up to thirty days beyond the due date and an additional amount of rupees two thousand per day in case the default continues beyond thirty days from the due date, as the Authority may, by order, direct. Provided that the financial disincentive levied by the Authority under this subregulation shall in no case exceed Rupees Two Lakhs. Provided further that no order for payment of any amount by way of financial disincentive shall be made by the Authority unless the broadcaster or the distributor, as the case may be, has been given a reasonable opportunity of representation against the contravention of the regulations observed by the Authority. (2) The amount payable by way of financial disincentive under these regulations shall be remitted to such head of account as may be specified by the Authority. ## “Interconnection” is defined at clause 2(x) of the impugned Regulations as follows :- (x) “interconnection” means commercial and technical arrangements under which service providers connect their equipment and networks to provide broadcasting services to the subscribers. W.P.(C) No.428/20 8 4. “Interconnection Regulations” are defined to mean the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulation 2017. Regulation 2(kk) defines “reporting distributor” to mean a distributor whose average active subscriber base of its entire distribution network, including joint ventures, if any, in the month of March of a year, is equal to or more than the reporting threshold. As per Regulation 2(ll) “Reporting threshold” means one lakh or as may be prescribed by the Authority by a direction or an order from time to time. 5. Section 11(1)(b)(vii) and (viii) of the TRAI Act provides power to the respondent to regulate and maintain a register of interconnection agreements. Section 11(1)(b)(vii) provides that the TRAI shall maintain a register of interconnection agreements and of all such of the matters as may be provided in the Regulations. Section 11(1)(b)(viii) provides that the Authority shall keep the register mentioned under clause (vii) open for inspection to any member of the public on payment of such fee and on compliance of such other requirements as may be provided in the Regulations. W.P.(C) No.428/20 9 ## - 6. Regulation 6 reads as follows: 6. Inspection of the register **.** (1) The register shall be treated as nonconfidential, unless a party to an interconnection agreement requests the Authority, in the manner and format prescribed in sub-regulation (2) hereunder, to keep any part of the agreement reported in Part II as confidential. (2) The request for confidentiality as per sub-regulation (1) above, shall be made in writing, along with a non-confidential summary of the portion sought to be kept confidential. The service provider shall clearly indicate the paras or parts thereof that may be treated as confidential. Such a request shall be accompanied by reason(s) for keeping such information as confidential. (3) Where the Authority proposes to reject the request for confidentiality, it shall inform the service provider, in writing, the reasons for doing so, and give an opportunity to make a representation against the same within a stipulated period. On consideration of such representation, if any, the Authority shall take a final decision. In case the Authority rejects the request of the service provider, it shall communicate the same, in writing, along with the reasons for doing so. - 4) Subject to the provisions contained in sub-regulations (1) to (3) above, the non-confidential part (s) of the register shall be kept open for inspection to any member of public on payment of fee prescribed under sub-regulation (7) hereunder. (5) Any person seeking inspection of the register shall apply, in writing, to the officer designated for the purpose by the Authority, giving details of the information sought. (6) The designated officer shall allow inspection of the register and also make available extracts of the relevant portions of the register on receipt of the fee prescribed under sub-regulation (7) hereunder. W.P.(C) No.428/20 10 (7) Levy of fee and other charges: (i) A fee of Rs. 50 per hour, or as may be prescribed by the Authority by a direction or an order from time to time, shall be levied for inspection of the register. (ii) A fee of Rs. 20 per page, or as may be prescribed by the Authority by a direction or order from time to time, shall be charged for copies of extracts from the register. Provided that the Authority may provide copies of extracts in soft format with appropriate watermark(s). - (8) Nothing contained in this regulation shall apply to an interconnection agreement entered in the register - (i) in respect of which a period of three years has expired from the date of reporting of such agreement, or - (ii) in respect of which the period of validity as specified in the agreement has expired, whichever is later.” 7. It is the specific case of the petitioners that the information sought under the impugned Regulations falls outside the scope of “interconnection” and therefore, is beyond the power and jurisdiction of the TRAI. The further contention of the petitioner as is evident from the pleadings and argument notes submitted by the counsel is as follows :- “The assignment of Logical Channel Number in the Electronic Programme Guide has always been the prerogative of the distributor who have assigned LCN to various channels subject to the rules of the EPG that channels be grouped by language and genre. Within such grouping if there is a preferred slot, a lucky number or an easily recognized number, then such LCN allotment has been subject to payment of placement charges which is an optional arrangement between a broadcaster and a distributor of television channels. W.P.(C) No.428/20 11 Placement is nothing but an optional agreement between a broadcaster and a distributor. As per the Interconnection Regulations itself placement cannot be a condition for providing interconnection. Regulation 2(x) defines interconnection as the “commercial and technical arrangements under which the service providers connect their equipment and networks to provide broadcasting services to subscribers”. Regulation 3(3) prohibits linking interconnection to placement. Once placement cannot be a condition for interconnection, the free enterprise cannot be curtailed without jurisdiction as placement is entirely outside the regulatory domain. Placement is outside the ambit of “interconnection” and cannot be regulated by TRAI. It may be noted that placement is nothing but a form of advertisement where the product i.e. the television channel is given a medium to attract higher viewership by placing it in a position that is desirable. TRAI’s argument that it can regulate “broadcasting” since placement is a part of broadcasting is not correct. TRAI does not regulate advertisement revenue of broadcasters even though it arises out of broadcasting and on parity cannot regulate placement for distributors. Placement fee being de hors interconnection is outside the regulatory ambit.” 8. It is submitted that the TDSAT in its judgment dated 29 May 2019 in Broadcasting Appeal No.4 of 2018 has held that:- “the word ‘inter-connection’ cannot be taken as equivalent of placement either literally or technically. Both are different concepts and placement will always follow inter-connection. There can be interconnection without placement but there can be no placement without interconnection.” 9. It is, therefore, contended that the information relating to placement, marketing and “any other technical or commercial W.P.(C) No.428/20 12 arrangements” is clearly outside the scope of the Respondent’s powers. Hence the Impugned Regulations, being mere adjunct Regulations, travel far beyond the four-corners of the TRAI Act, and also the 2017 Interconnect Regulations, and is therefore ultra vires. The aforesaid information is also confidential and proprietary to each distributor and its disclosure violates their freedom of trade and their right of privacy. 10. Further it is contended that the impugned Regulations violates the confidentiality and privacy of the reporting distributors. In this regard it is contended as follows :- “1. The draft of the Impugned Regulations, as circulated with the Consultation Paper at Reg. 7 therein, contains a stipulation that the decision on release of confidential data shall be taken by the Respondent in accordance with the TRAI (Access to Information) Regulation, 2005. 2. Under the Access to Information Regulations, Regulation 3 provides safeguards to protect information that is confidential, that amounts to commercial or technical information, or is a trade secret. 3. However, Regulation 6 of the impugned regulations does not contain any such safeguard and there was no consultation on this crucial issue. 4. The impugned Regulations require that all possible information with the DPO’s and broadcasters be disclosed first to the Respondent. Then it provides for an ex-post facto determination of whether any such information is confidential, upon a disclosure request being made. 5. Further, the impugned Regulations do not provide any criteria on which the Respondent may decide to either allow disclosure or refuse the disclosure of submitted information. It also does not provide for any W.P.(C) No.428/20 13 recourse against any decision in this regard by the Respondent. 6. Therefore, this is manifestly arbitrary and a breach of the confidential and proprietary rights of distributors and violative of their freedom of trade and their right of privacy.” 11. It is contended by the learned senior counsel for the petitioners that there is clear discrepancy between the consultation paper and the impugned Regulations. It is contended that this dichotomy between the Consultation Paper and the Impugned Regulations is violative of the obligation of the Respondent to exercise transparency in framing of Regulations as per Sec. 11(4) of the TRAI Act as held by the Apex Court in **Cellular Operators Association of India and others** [AIR 2016 SC 2336]. 12. It is further contended that an artificial distinction is drawn between distributors by differentiating them as reporting distributors and others and the power to determine the reporting threshold rests with the Authority without any intelligible criteria. It is contended that the classification is manifestly arbitrary as there is no differentiation in obligations of distributors that too, based on size of subscriber base either under the TRAI Act or under the 2017 Interconnection Regulations. Further, there is no justification as to the fixing of the reporting threshold and the power in the TRAI to fix such threshold is totally arbitrary and without any guidelines. It is, W.P.(C) No.428/20 14 therefore, contended that the distinction created in obligations of reporting and non-reporting distributors is manifestly arbitrary and violative of Article 14. In support of the contentions, the learned Senior Counsel would place reliance on the decisions of the TDSAT in **Bennet Coleman v. Telecom Regulatory Authority of India** [2019 SCC online TDSAT 133] and the decision of the Apex Court in **People's Union for Civil Liberties and another v. Union of India and others** [(2004) 2 SCC 476]. 13. Detailed counter affidavits have been placed on record by the respondents. Submissions have been made by the learned counsel appearing for the respondents as well. It is contended that All India Digital Cable Federation has no locus standi to challenge the provisions of the Telecommunication (Broadcasting and Cable) Services Register of Interconnection Agreements and all such other matters Regulations, 2019 dated 04.09.2019 made by the respondent as the said petitioner is not a party adversely affected since the Impugned Regulations are applicable to broadcasters, distributors of television channels and local cable operators whereas the said petitioner is none of these. It is further contended that Impugned Regulations are dated 04.09.2019 and the impugned provisions came into force after 120 days from 04.09.2019. However, the Petitioner chose to file Writ Petition on 08.01.2020. The laches on the part of the Petitioner are such as to disentitle it to the reliefs claimed. W.P.(C) No.428/20 15 14. It is further submitted that **M/s Star India Pvt Ltd Vs DIPP** [2019 (2) SCC 104] the Hon’ble Supreme Court, in paragraph 30 of its judgment has held that “the provisions of the TRAI Act have to be viewed in the light of protection of the interests of both service providers and consumers. This being so, it is clear that no constricted meaning can be given to the provisions of this Act. What is also clear from Section 11(1)(b), is that terms and conditions of interconnectivity between different service providers have to be fixed, which necessarily includes terms that relate not only to carriage simpliciter as submitted by Dr. Singhvi, but to all terms and conditions of interconnectivity between broadcaster, MSO, Cable TV operator and the ultimate consumer, so as to ensure that the object of the Act is carried out, namely, that both broadcasters and consumers get a fair deal.” Therefore, the activities of placement of a channel, its marketing, discount, promotion is very well covered under the definitions of interconnection and interconnection agreement, it is submitted. 15. After explaining the scheme of the Act, specifically Section 11 and 36 thereof, it is submitted that the section 11(1)(b) of the TRAI Act entrusts the Authority, inter alia, with the functions to ensure effective interconnection between different service providers, fix the terms and conditions of inter-connectivity between the service W.P.(C) No.428/20 16 providers, and regulate arrangements among service providers for sharing their revenue derived from providing Broadcasting and Cable TV services. The interconnection between service providers is a technical or commercial or a combination of technical and commercial arrangement under which service providers connect their equipment and networks to enable subscribers to have access to the services. Accordingly, the Authority had put in place a regulatory framework for interconnection by making the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 dated 10[th] December 2004, the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable TV Systems) Regulations, 2012 dated 30[th ] April 2012 and the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 dated 03[rd] March 2017. Based on this framework the broadcaster or distributor of television channels finalize the commercial and technical terms and conditions to arrive at an agreement. Under the existing interconnection regulatory framework, broadcasters are required to provide the signals of TV channels to the distributors of TV channels on non-discriminatory terms. Similarly, distributors of television channels are also required to provide access to their networks to the broadcasters on non-discriminatory terms. W.P.(C) No.428/20 17 16. It is further contended that Section 11(1) (b) of the TRAI Act, inter-alia, mandates the Authority to maintain a register of interconnection agreements and keep it open for inspection. It is contended that the respondent has power not only limited to Interconnection but such other matters also and the information being sought now as a part of register is covered under “such other matters” notwithstanding the fact that the placement, marketing and any other technical or commercial agreements are itself part of Interconnection. 17. Under section 12 of TRAI Act, 1997, power has been conferred upon TRAI to call for information and conduct investigations, etc. It is therefore argued that the respondent can call for information relating to the affairs of any service provider, as and when it considers expedient so to do. Hence, the Impugned Regulations are within the jurisdiction and power of the respondent. It is further contended that transparency and non-discrimination are core principles of the interconnection regulations. All the agreements, consequential to the Interconnection agreement, between the service providers should comply with the principle of transparency and non-discrimination. It is contended that such subsequent agreements should not alter the nature and form of mandatory W.P.(C) No.428/20 18 technical and commercial conditions of the interconnection agreements. Vis-a-vis these agreements (Placement fee, marketing fee or any other nomenclature of mutual agreement among service providers), the respondent has followed a principle of light touch regulatory regime, whereby no ceiling or formula has been prescribed. However, as a sector regulator the respondent has to be aware of the types and commercial implications of such arrangements/ agreements for effective oversight. The service providers may be free to enter into such agreement(s); however these must be reported to the Regulator. Thus, the averment that the requirement to report all technical and commercial arrangements inter se and not just the terms of Interconnection Agreements is ultra vires the provisions of TRAI Act, is false and misleading. 18. It is submitted that the Authority notified separate Regulations namely, “The Register of Interconnect Agreements (Broadcasting and Cable Services) Regulation 2004" (15 of 2004) on 31.12.2004, which prescribe modalities for the maintenance of the Register of Interconnection Agreements for broadcasting and cable services. The said regulations were amended from time to time, in line with changes in interconnection regulations. The register of interconnection agreements was to be maintained in two parts: part W.P.(C) No.428/20 19 A and part B wherein part A was kept open for inspection by any member of public on payment of prescribed fee and part B was not open for the public inspection. Part B contained information which was decided by Authority on request of service provider to be kept confidential. While deciding the confidentiality of the information, the Authority was required to follow the relevant provisions of the Telecom Regulatory Authority of India (Access to Information) Regulation, 2005. The Telecom Regulatory Authority of India (Access to Information) Regulation, 2005 has a provision for exemption of following information from disclosure:- (i)trade and commercial secrets and information protected by law; (ii)Commercially and financially sensitive information, the disclosure of which is likely to cause unfair gain or unfair loss to the service provider, or to compromise his competitive position. 19. It is, therefore, contended that as per the Register of Interconnection Regulations 2004, the broadcasters were required to report the details of the interconnection agreements signed with the distributors of TV channels on annual basis. Similarly, the DTH operators, HITS operators and IPTV operators were required to report their interconnection agreements signed with broadcaster on annual basis. W.P.(C) No.428/20 20 20. However, on examination of the interconnection filing/details made by the broadcaster or distributor of television channels under Register Regulation, 2004, the Authority had, inter-alia, observed that:- - a) There was a lack of uniformity in filings received from various broadcaster or distributor of television channels; - b) There were varied interpretations of the requirement in the Register Regulation, 2004 regarding filing of standard affiliation agreement; - c) Reporting of information in print form became a time-consuming and laborious task and was also not eco-friendly. 21. It is stated that a review of the Register of Interconnection Regulation 2004 was considered appropriate. A consultation paper titled as “The Register of Interconnection Agreements (Broadcasting and Cable Services) Regulations, 2016” dated 23[rd] March 2016 was issued. In response to the same, a total of 26 comments and 2 counter-comments were received from stakeholders. An Open House Discussion (OHD) was held on 26[th] May 2016 in Delhi, which was attended by a large number of stakeholders. In the meanwhile, the respondent notified a new regulatory framework on 3[rd] March 2017. The said framework comprises of the following Regulations and Tariff Order. W.P.(C) No.428/20 21 a) The Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 [hereinafter referred as Interconnection Regulations, 2017] b) The Telecommunication (Broadcasting and cable) Services Standards of Quality of Service and Consumer Protection (Addressable Systems) Regulations, 2017 [hereinafter referred as QoS Regulations, 2017]. **==> picture [434 x 45] intentionally omitted <==** c) Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order,2017 [hereinafter referred as Tariff Order, 2017]. 22. The new regulatory framework was notified in March 2017. However, pursuant to a legal challenge to the said Regulations, the Regulations came into effect from 3[rd] July 2018 after satisfying legal issues. After the coming into effect of the new regulatory framework, all the service providers are required to enter into interconnection agreements in accordance with the said framework. Considering the developments in the market pursuant to implementation of the new regulatory framework, requiring further review of earlier exercise of public consultation undertaken in 2016 to revise the Register of Interconnection Regulations 2004, a draft Telecommunication (Broadcasting and Cable) Services Register of Interconnection Agreements Regulations, 2019 was issued by TRAI on 22[nd] April 2019. In response to the said draft Regulations, a total of 21 W.P.(C) No.428/20 22 comments were received from stakeholders. An Open House Discussion (OHD) was held on 10[th] June, 2019 in Delhi. Thereafter Telecommunication (Broadcasting and Cable) Services Register of Interconnection Agreements and all such other matters Regulations, 2019 was issued on 4[th] September 2019. **==> picture [445 x 31] intentionally omitted <==** 23. The terms “interconnection” and “interconnectivity” have very wide meaning. The placement of channels essentially involves the interconnectivity between two service providers i.e., broadcaster and the distributor of TV channels such as petitioner No. 2 and hence falls under the definition of “interconnection”. Thus, ‘Interconnection Agreement’ by definition, includes all technical and commercial arrangements among the service providers. Therefore, the scope and mandate of the Regulation includes all technical and commercial arrangements for retransmission of television channels. The Interconnection Regulations of 2017 and impugned Regulations endeavour to create a transparent regime to foster a level playing field. The nature of arrangements arrived at should determine whether an agreement is ‘interconnection’ or not. The timing of the agreement should not determine whether that particular agreement entered is ‘interconnection’ or not. In other words, whether the agreement was entered prior to or after or as a part W.P.(C) No.428/20 23 of the initial ‘interconnection agreement’ is not a determining factor. Thus, whether a placement agreement or marketing agreement is entered into after the ‘interconnection’ is achieved is inconsequential, because, any modification, variance, amendment, novation or any other subsequent arrangement involving commercial and technical terms for provisioning of channels would also amount to an ‘interconnection agreement’. 24. Regulation 18(1) and 18(2) of Interconnection Regulations, 2017, inter alia, mandate that every broadcaster shall declare the genre of its channels and the distributor shall place channels in the electronic programme guide (EPG), in such a way that, the television channels of same genre, as declared by the broadcasters, are placed together consecutively and one channel shall appear at one place only. **==> picture [445 x 32] intentionally omitted <==** 25. In accordance with provisions of Interconnection Regulations 2017, the distributors of TV channels are required to enter into interconnection agreement with broadcasters of TV channels on the basis of the Reference Interconnection Offer (RIO for short) published by the broadcasters in terms of the said Regulations. The placement/marketing/promotional activities and incentives schemes for placing channel in a particular slab/LCN based W.P.(C) No.428/20 24 discount, of channels of broadcasters forms part of RIO of the concerned broadcasters. Since all these activities form part of RIO which is an interconnection agreement, all the abovementioned activities are in fact interconnection as stipulated in the clause 2(x) of the Impugned Regulations. **==> picture [451 x 32] intentionally omitted <==** 26. Most importantly, any discount given by a broadcaster to the distributor for placement of a channel is purely a commercial activity and determines the rate at which a particular channel is carried in the network of distributor for the reason that the cost of the carriage i.e. MRP of a channel, is reduced by the amount of the discount given by the broadcaster. Since the effect of discount on MRP affects the rate at which a channel is being carried in the network of the distributor, it is undoubtedly covered under the provisions of Section 11(2) of TRAI Act i.e. the tariff fixation function. Therefore, the provisions of Impugned Regulations have been made under the mandate given by the respondent. **==> picture [451 x 31] intentionally omitted <==** 27. It is further submitted that the aforesaid broadcaster has also provided in clause 4.2(e) of the RIO that “Any marketing or promotional activity in respect of or involving the Channels or any standalone programming of such Channels shall be only W.P.(C) No.428/20 25 carried out by the Operator in accordance with the terms of this Agreement or by taking a prior written approval of Broadcaster’. It is therefore stated that marketing and promotional activities are subject to the terms of interconnection agreement. **==> picture [445 x 32] intentionally omitted <==** 28. It is submitted that the impugned regulations do not constitute an overreach to the powers conferred under the Act. The reporting requirements are not arbitrary or illegal and do not seek to govern commercial arrangements between service providers in excess of the regulatory power. The contention that the disclosure applications are an affront to the right to free trade and privacy of the petitioners is also denied. It is submitted that paragraphs 46 to 52 of the Explanatory Memorandum dealing with the maintenance of register and accessibility of information specifically considers the concerns raised and the apprehensions are unfounded. The contentions that the Regulations imposed an unreasonable fetter on the rights of the petitioner under Article 19(1)(g) of the Constitution is also denied. It is stated that the interconnection agreements signed as per the RIO are nonconfidential in nature and the RIO is published by the broadcaster/ distributor on their web site which is available for W.P.(C) No.428/20 26 the public domain. Therefore, the information required to be reported by the impugned Regulations are also nonconfidential. **==> picture [445 x 31] intentionally omitted <==** 29. In this connection the respondents herein rely on the following judgments of the Hon’ble Supreme Court to urge the respective points- **==> picture [445 x 31] intentionally omitted <==** 30. In **P.V Sivarajan Vs. The Union of India and Ors** [AIR 1959 SC 556], it is held that it is for the rule making authority to decide which test would meet the requirement of public interest and what method would be most expedient in controlling the industry for the national good. Once the restrictions are justified in public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under Art 19(1)(g) and challenge the validity of the regulation or rule in questions. ## 31. In **Madhubhai Amathalal Gandhi Vs. The Union of India (UOI)** - [AIR 1961 SC 21] it is held that the restrictions in getting membership of stock exchange were not unreasonable having regard to the importance of the business in national economy. ## 32. In **New India Sugar Works Vs. State of Uttar Pradesh and Ors** (1981) 2 SCC 293, it is held that individual interest, however W.P.(C) No.428/20 27 precious they maybe must yield to the larger interest of the community of consumers. ## 33. In **Bannari Amman Sugars Ltd.Vs Commercial Tax Officer and** **Ors** [(2005) 1 SCC 625], it is held that reasonableness of a restriction is to be determined from the stand point of general public, not from the stand point of persons on whom restrictions are imposed. 34. In **Union of India(UOI) and Ors Vs. International Trading CO.and Ors** [AIR 2003 SC 3983] it is held that reasonableness of a restriction is to be determined from the stand point of general public, not from the stand point of persons on whom restrictions are imposed. Restriction cannot be held unreasonable merely because it operates harshly. ## 35. In **Shree Meenakshmi Mills Ltd.and Ors Union of India** (UOI) - [(1974) 1 SCC 468] it is held that mere fact that some of those who are engaged in business are alleging loss after imposition of law will not render the law unreasonable. ## 36. **In Krishnan Kakkanth Vs. Government of Kerala and Ors** - [(1997) 9 SCC 495], it is held that reasonableness of a restriction is to be determined from the stand point of general public and not from the standpoint of the persons on whom restrictions are imposed. A restriction cannot be said to be unreasonable for the mere reason that it operates harshly. Unless the trader or merchant is W.P.(C) No.428/20 28 wholly denied to carry on the business, the restrictions do not offend Art 19(1)(g). 37. **Ram Krishna Dalmia v. S.R.Tendolkar and others** [AIR 1958 SC 538] lays down principles to be followed in examining constitutionality of laws. 38. In **Deepak Theatre Dhuri v. State of Punjab and others** [AIR 1992 SC 1519] it is held that when the public acquire direct and positive interest in the subject matter of a contract, regulations can be imposed in public interest. **==> picture [445 x 32] intentionally omitted <==** 39. It is contended that a restriction cannot be said to be unreasonable for the mere reason that it operates harshly. It may be noticed that the impugned regulations do not deny the petitioners their right to carry on the business. The regulations have been introduced by the TRAI in public interest and in discharge of its statutory duties. Hence the petitioner's contention of violation of their rights under Article 19 (1)( g) of the Constitution is untenable. **==> picture [451 x 31] intentionally omitted <==** 40. It is submitted that the rationale for exemption has been discussed at length in paras 22-27 of the Explanatory Memorandum. Prior to coming out with the Impugned Regulation, the Authority observed that there are 1143 active W.P.(C) No.428/20 29 Multi System Operators ('MSO' for short) and approximately 100,000 Local Cable Operators working in the industry. As per the data available from MIB, there are 1061 active MSOs with subscriber base of less than one lakh subscribers. It was observed that many MSOs are small players providing service in remote rural areas or in small towns catering to small number of subscribers. Also, since the digitization of cable TV has been completed in India in March 2017 only, therefore, some of the MSOs are at the nascent stage of operations in digital addressable distribution platform. Such small MSOs may have capacity constraints both in terms of manpower as well as finance. Therefore, initially, it may be appropriate to seek information, only from those distributors who have a significant subscriber base. Further, as per the information available from MIB, MSOs with one lakh or more subscriber base cover more than 85% of subscribers base. Accordingly, it was decided by the Authority that only distributors, having average active subscriber base of one lakh or more in the month of March of a year, shall be under obligation to report the information relating to their interconnection agreements to the Authority. Such distributors were called as ‘Reporting Distributors’ The distributor having average active subscriber base below the reporting threshold were exempted from the obligation of W.P.(C) No.428/20 30 reporting details of interconnection agreements for ease of business and reducing regulatory burden on MSOs with subscriber base below a threshold and with limited resources. However, even such distributors shall report their carriage RIO to the Authority. Further, since broadcasters are required to report the details of information of the individual agreements signed with all distributor, regardless of their size and subscriber base, in addition to reporting their RIO, all agreements are essentially reported with the Authority. Any deviation in RIO based agreements also needs to be reported under Regulation 3(3) of the Impugned Regulation. **==> picture [451 x 31] intentionally omitted <==** 41. As regards the placement agreement, the Authority noted that as per the extant regulatory framework, the broadcaster may offer discounts within the prescribed limit or pay the mutually agreed fee, after signing the interconnection agreement, to a distributor for placing the channel at the desired position in the EPG. Such agreements and any other individual agreements are required to be filed with the Authority. The Authority is of the view that the details of all other individual agreements which include marketing, placement, agreements on advertisement slots, extended credit facility, etc. should be reported to the Authority by the Broadcasters. Also, the marketing fee details W.P.(C) No.428/20 31 and for that matter any kind of fee for a channel, between broadcaster and distributor shall be reported to the Authority. Thus, any incentive (monetary or otherwise) for marketing or support or visibility or placement signed between Broadcaster and distributor of television channels shall be reported to the Authority by the broadcaster. Moreover, exempted distributors are also encouraged to report the information voluntarily so that the holistic data of the industry is available in the Register. This will help the Authority in better monitoring of the industry and to take suitable measures/ decisions for the orderly growth of the industry. **==> picture [445 x 31] intentionally omitted <==** 42. Thus, it is urged that the respondent has deliberated upon the issues deeply and only after considering the merits and demerits of the particular provisions, certain categories of the MSOs have been exempted from reporting requirement. Further, the threshold of one lakh subscribers will be reviewed by the respondent from time to time. Hence, the petitioner’s allegation that the impugned Regulation segregates reporting distributors into a separate category without having any intelligible differentia and reasonable nexus to the TRAI Act is baseless and incorrect. **==> picture [445 x 32] intentionally omitted <==** W.P.(C) No.428/20 32 43. It is further submitted that this Court had considered a request to vacate the interim order and had specifically considered the order of the TDSAT while extending the interim order. It is stated that in view of the stay of the order of the TDSAT in Civil Appeal Nos.6001 to 6003/2019, the reasoning no longer holds good. It is further contended that there are no sustainable grounds raised by the petitioners and the writ petition is liable to be dismissed. **==> picture [451 x 31] intentionally omitted <==** 44. With regard to the presumption as to the validity of subordinate legislation the learned counsel for the respondent relied on the decision of the Apex Court in **Hinsa Virodhak Sangh v. Mirzpur Moti Kuresh Jamat and Ors.** [AIR 2008 SC 1892]. **==> picture [451 x 32] intentionally omitted <==** 45. Smt.Ritwika Nanda, the learned counsel appearing for the 2[nd] respondent would submit that though the 2[nd] respondent is a member of the 1[st] petitioner Federation, the 2[nd] respondent being a MSO also in its own right has different arguments to be advanced as regards the requirement for disclosure of placement agreements. It is submitted that the challenge is only against the impugned Regulations and no challenge is raised to the TRAI Act. It is contended that the provisions of the TRAI Act, specifically Section 36 thereof, W.P.(C) No.428/20 33 provides power to the TRAI to regulate any matter necessary to carry out the purposes of the Act. It is contended that placement agreements are side deals which are entered into between stake holders in the field of broadcasting and where such side deals violate or circumvent the requirements of the Regulations and public interest at large, the TRAI has the power coupled with a duty to step in and to regulate such practices. It is further submitted that the entire issue had been put to consultation before the impugned Regulations were framed and the complaints of the broadcasters that arm twisting techniques are being carried out by the distributors for ensuring convenient placements of channels was specifically taken note of by the TRAI. It is contended that broadcasting being a regulated sector, the end intent of the regulatory mechanism is to see that the consumer is permitted to avail the maximum functionality without being exploited in pricing. It is further contended that interconnection agreements and register regulations are completely different and distinct and the TRAI specifically has power to regulate all such matters as provided in the Regulations. Referring to the judgment of the Apex Court in **Star India Private Limited** v. **Department of Industrial Policy and Promotion and ors** [(2019) 2 SCC 104], the learned counsel argued that it has been held that under Section W.P.(C) No.428/20 34 36 of the TRAI Act, the authority is empowered to carry out the purposes of the said Act as can be discerned from the preamble of the Act. It is further held that what is clear from the amended preamble of the Act is that the interests of service providers and consumers are of paramount importance, both of which have a role to play when regulations are framed under Section 36. It was held that the power under Section 36(1) of the Act is very wide and not constricted by the provisions of Section 11 as was held in **BSNL** v. **TRAI** [(2014) 3 SCC 222]. **==> picture [451 x 31] intentionally omitted <==** 46. I have considered the contentions advanced at considerable length. The 1[st] petitioner is admittedly an association of Digital Multi System Operators. It is not in dispute that the petitioner was one of the consultees in the consultation process undertaken by the TRAI while the impugned Regulation was issued. It is a company registered under the Companies Act and seeks to represent the MSOs in the country. The 2[nd] petitioner is also a company registered under the Companies Act and is a member of the 1[st] petitioner. The contention that the petitioners have no locus standi to challenge the Regulations cannot be accepted. With regard to the further contention as to the delay in challenging the Regulation, it is admitted that the Regulations were to come into force within 120 days from 4.9.2019. The writ petition has been filed on 8.1.2020, within a few days from the W.P.(C) No.428/20 35 date on which the regulations were to take effect. The writ petition was admitted on 9.1.2020 and was elaborately heard for the purpose of interim orders. Thereafter, a detailed interim order was rendered on 19.5.2020. In the circumstances, the contention that the writ petition is belated and is liable to be dismissed on the ground of delay in approaching this Court also cannot be accepted. **==> picture [451 x 31] intentionally omitted <==** 47. The TRAI is required under Section 11(1)(b)(vii) of the TRAI Act, 1997 to maintain a register of inter-connection agreements and of all such other matters as may be provided in the Regulations. Section 36 empowers the Authority, by notification, to make Regulations consistent with the Act and the Rules made thereunder to carry out the purposes of the Act. Without prejudice to the generality of the said power, the Regulations may provide for matters in respect of which register is to be maintained by the Authority under Section 11(1)(b)(vii). This is provided at Section 36(2)(d) of the Act. It is submitted that the TRAI Access to Information Regulations 2005 has already been framed by the TRAI, which provides that a service provider furnishing any information to the Authority under the Act may make a request in writing to keep that information or part thereof confidential in which case, he shall also furnish a non- W.P.(C) No.428/20 36 confidential summary of the portions sought to be kept confidential and the Authority, if it is of the opinion that it is necessary or expedient to disclose the information in public interest, may reject the request of the service provider, after informing him in writing the reason for doing so and give him an opportunity to make a representation against the same. It is further provided in Regulation 6 that information covered by any of the following category shall be exempt from disclosure under the provisions of the Regulations :- - 1) Trade and commercial secrets and information protected by law, 2) Commercially and financially sensitive information the disclosure of which is likely to cause unfair gain or unfair loss to the service provider or to compromise his competitive position. **==> picture [445 x 35] intentionally omitted <==** 48. It is, therefore, clear that even in case of matters which come under Section 11(1) (b)(vii) of the Act, information which comes within the category of trade and commercial secrets and commercially and financially sensitive information is specifically exempt from disclosure. The specific contention of the petitioners is that placement agreements are commercial transactions entered into between broadcasters and distributors, which do not form part of interconnection agreements and are, therefore, not liable to be regulated at all. W.P.(C) No.428/20 37 It is submitted that placement agreements are mutual bilateral agreements entered into between broadcasters and distributors for the mutual benefit of both and the terms of such agreements do not concern the end consumers in any manner and therefore the attempt of TRAI to regulate such placement agreements is completely misconceived and is an intrusion into the right to carry out trade or occupation which is enjoyed by the distributors ,without any rationale at all. **==> picture [463 x 31] intentionally omitted <==** 49. Several issues now stand settled by judicial pronouncements. The power of the High Court to consider the legality of the Regulations issued by the TRAI is undisputed. Further, the decision of the Apex Court in **Star India Private Limited** v. ## **Department of Industrial Policy and Promotion and ors** [(2019) 2 SCC 104], makes it abundantly clear that the power of the TRAI under Section 36 of the Act to issue regulations is not circumscribed by the language of Section 11(1)(b) of the Act. It is clear that no constricted meaning can be given to the provisions of the TRAI Act and that the power to frame Regulations is wide and is limited only by the purposes of the Act as can be discerned from its amended preamble. Further, it has been laid down that while carrying out its functions and in the matter of framing of regulations, the TRAI is obliged to W.P.(C) No.428/20 38 adhere to the principles of transparency in the consultative process. Transparency does not mean mere putting of suggestions to the stakeholders but also involves a reasoned consultative process which is meaningful and complete. **==> picture [445 x 31] intentionally omitted <==** 50. It being an admitted fact that placement agreements are contracts entered into between the broadcaster and the distributor and are in the nature of commercial transactions inter se between them, even if such contracts are also subject to the regulatory power of the TRAI, that power can be exercised only in the manner as specifically provided in Section 11(4). Once it is recognized that placement is a source of revenue for the distributor, the same falls within the realm of a commercial transaction between the distributor and the broadcaster. Placement agreements are therefore voluntary contracts between the two stakeholders in the matter of assigning of favoured Logical Channel Numbers within the framework as prescribed by the 2017 Regulations. The pointed question whether placement is a part of inter-connection at all is admittedly an issue pending before the Apex Court in Civil Appeal Nos.6001 to 6003 of 2019. 51. The explanatory memorandum which accompanies Exhibit P1 Regulation deals with the question of bringing placement W.P.(C) No.428/20 39 agreements into the scope of the regulations by stating as under:- ## “ **Maintenance of Register and Accessibility of information** 46. During the consultation process, it was specifically asked by the Authority from the stakeholders as to why all the commercial information submitted by the service providers should not be made accessible to the interested stakeholders. On this issue, divergent views from the stakeholders have been received. 47. Some stakeholders suggested that preserving the confidentiality of sensitive commercial information is a vital safeguard in respect of commercial contracts hence it should not be disclosed to any third party. Some broadcasters commented that protection of commercially sensitive information is their fundamental right to trade and profession guaranteed under Article 19(1)(g) of the Constitution. They have further suggested that TRAI should adopt the same procedure which is provided under Regulation 35 of the Competition Commission of India (General) Regulations 2009 for keeping certain information as confidential or non-confidential. Some stakeholders suggested that Authority should itself scrutinize all the interconnection agreements filed by service providers and upon securitizing if the Authority finds any violation of the principle of non-discrimination then Authority should take appropriate action. Some stakeholders suggested that only trend analysis of the information should be disclosed to the public. 48. On the other hand, some stakeholders suggested that the information should be made available only to interested service providers holding a valid licence. Some stakeholders suggested that the true essence of nondiscrimination can only be achieved if every type of information is disclosed so that anyone can get the channels on non-discriminatory basis. They are of view that providing access to relevant commercial information will help service providers to engage in interconnection arrangements looking at the data and trends and it will support level playing field and encourage competition based on efficiency and quality of service and effectively it will W.P.(C) No.428/20 40 lead to transparency and non discrimination. 49. The Authority is of the view that the details of information required to be reported by the broadcaster/distributor of individual agreements signed with distributor/Broadcaster, as per reference interconnect offer are nonconfidential in nature as the reference interconnect offer published by the broadcaster/distributor is available in public domain. Thus all the interconnection agreements signed as per RIO are non-confidential in nature. 50. Some stakeholders raised their views as regards the security of their confidentially sensitive information through the digital documents/ scanned agreements. The Authority will endeavour to ensure full data security of such information. The documents/ agreements submitted by the broadcasters and distributors will be stored in encrypted form. Further the digital documents/ scanned documents will normally be stored in offline modes. The Authority will endeavour to take all suitable measures to ensure that the data stored in the register is not accessible unless as specified under the extant provisions of inspection of the Register. 51. The Authority has decided to maintain the register of interconnection agreements in two parts viz. Part I and Part II. Part I shall consist of the information (a) as reported under sub-regulations (1), (2), (4) and (5) of regulation 3; and (b) as reported in Part A under sub-regulation (3) of regulation 3; and Part II shall consist of the information as reported in Parts B and C under sub-regulation (3) of regulation 3. The register shall be treated as non-confidential, unless a party to an interconnection agreement requests the Authority, in the manner and format prescribed in regulation, to keep any part of the agreement reported in Part II as confidential. The request for confidentiality shall be made in writing, along with a nonconfidential summary of the portion sought to be kept confidential. The service provider shall clearly indicate the paras or parts thereof that may be treated as confidential. Such a request shall be accompanied by reason(s) W.P.(C) No.428/20 41 for keeping such information as confidential. In case the Authority proposes to reject the request for confidentiality, it shall inform the service provider, in writing, the reasons for doing so, and give an opportunity to make a representation against the same within a stipulated period. On consideration of such representation, if any, the Authority shall take a final decision. In case the Authority rejects the request of the service provider, it shall communicate the same, in writing, along with the reasons for doing so. Thus, subject to the provisions contained in regulations, the register shall be kept open for inspection to any member of public on payment of fee prescribed under the Regulation.” 52. Though public interest is repeatedly pleaded by the respondents as a reason for the regulatory exercise, the pleadings placed on record do not disclose the public interest which is allegedly served by requiring the registration of placement agreements also in terms of the amended Regulations. **==> picture [445 x 32] intentionally omitted <==** 53. Even if it is admitted that the power under Section 36 of the Act is so wide as to encompass all aspects of broadcast of TV signals from the generation of the same to the viewership by the end consumer, that would not absolve the respondents from the liability either of showing the public interest involved in the specific inclusion of inter se commercial agreements within the ambit of interconnection for the purpose of disclosure or the responsibility to show that the changes were effected after a W.P.(C) No.428/20 42 transparent consultative process as provided under Section 11(4). Further, in the instant case the question whether placement is a part of inter-connection assumes relevance and that specific question is admittedly pending before the Apex Court in the Civil Appeals against the order of the TDSAT. If it is found that placement is a purely inter se commercial transaction between an MSO and a broadcaster and will not form a part of inter-connection, then the question whether the details of such a transaction, which is not inter-connection, can be called for under Regulation 3(3) would be doubtful. Even otherwise, since placement is admittedly an agreement entered into voluntarily between the broadcaster and the MSO a bland contention that some broadcasters had contended that MSOs are arm-twisting the broadcasters to enter into exploitative agreements cannot be a reason, by itself, to require the details of placement agreements to form part of the register. **==> picture [445 x 31] intentionally omitted <==** 54. It is admitted that the placement of the channels in the Electronic Program Guide is now fully regulated and channels are to be placed genre wise and language wise as provided by the TRAI. Therefore, even if it is admitted that a discount given by a broadcaster to the distributor for placement of a channel would have a bearing on the rate at which a particular channel W.P.(C) No.428/20 43 is carried in the network, the requirement by the impugned Regulations that all placement and marketing agreements also have to be reported to the regulator is not a decision which could have been taken quite so lightly without considering and addressing the objections of the MSOs on the point. Apart from relying on the access to Information Regulations 2005 which empowers the TRAI to decide on the nature of the information that is to be disclosed to the public, no satisfactory answer is forthcoming with regard to the contention of the petitioners of the confidentiality of their commercial information. On the other hand, it is contended that all placements/marketing/promotional activities and incentive and claims for placing a channel in a particular slab forms part of the Reference Interconnect Offer and are therefore not confidential information. It is stated that the RIO being nonconfidential in nature, all agreements entered into with reference to the said RIO are also non-confidential as they are based on the RIO published by the broadcaster/distributor on their website and is available in their portal. This, to my mind, is an apparent contradiction which vitiates the decision of the authority. 55. Further, though it is contended that all trade and commercial secrets and information protected by law and commercially and W.P.(C) No.428/20 44 financially sensitive information, the disclosure of which is likely to cause unfair gain or unfair loss to the service provider or to compromise his competitive position is exempt from disclosure, it is not clear as to what the criteria are to decide what information that is so exempt from disclosure. Further, the power of the TRAI under the Access to Information Regulations also seems to be an absolute power, in as much as, once the TRAI forms an opinion that it is necessary or expedient to disclose the information in public interest, then, the order passed on the representation filed by the service provider would be final. What, therefore, follows is that the protection given by the Regulations from disclosure of commercially and financially sensitive information is clearly at the total discretion of the authority and the pleadings placed on record would show that such discretion is not guided by any specific criteria or guidelines. **==> picture [445 x 31] intentionally omitted <==** 56. I also find that the authority has proceeded on the specific premise that placement agreements are a part of interconnection and are entered into under the RIO and therefore no further consideration is required for bringing such placement agreements within the scope of the Regulations with regard to maintenance of Registers. This reasoning, according W.P.(C) No.428/20 45 to me, is completely untenable in view of the fact that specific issue is still pending consideration. Therefore, even if it is accepted that the power of the TRAI to issue Regulations is not limited to regulating inter-connection, the exercise of the power should be strictly in accordance with the statute. When the statute specifically provides for transparency in the framing of the Regulations, the specific issues were required to be put to consultation and the objections raised require a proper consideration before any Regulations can be effected. **==> picture [445 x 31] intentionally omitted <==** 57. Having considered the consultation process supporting the impugned Regulations at considerable depth, I am of the considered view that apart from stating that certain broadcasters contended that DPOs are arm-twisting them to enter into exploitative contracts, no proper consideration of the contentions of the different stakeholders has been undertaken by the authority. The very question whether placement agreements are part of inter-connection being still at large, the reasoning of the respondent that placement agreements being agreements subject to the RIO are automatically required to be registered cannot be accepted. **==> picture [445 x 62] intentionally omitted <==** W.P.(C) No.428/20 46 In the above view of the matter, I am of the opinion that the impugned Regulations, in so far as they require a disclosure of the placement agreements bilaterally entered into between the broadcasters and the distributors are unsustainable. The challenge, therefore, must succeed to that extent. The impugned Regulations, to the extent that they require registration of placement/marketing agreements are, therefore, set aside. There will be no order as to costs. Sd/- **ANU SIVARAMAN, JUDGE** sj W.P.(C) No.428/20 47 ## **APPENDIX OF WP(C) 428/2020** PETITIONER'S ANNEXURE |EXHIBIT P1|TRUE COPY OF TELECOMMUNICATION (BROADCASTING| |---|---| ||AND CABLE) SERVICES REGISTER OF INTERCONNECTION| ||AGREEMENTS AND ALL SUCH OTHER MATTERS| ||REGULATION, 2019 ISSUED BY RESPONDENT DATED| ||4.9.2019.| |EXHIBIT P1(A)|TRUE COPY OF THE CERTIFICATE OF INCORPORATION| ||DATED 13.6.2014 ISSUED BY THE MINISTRY OF| ||CORPORATE AFFAIRS, GOVT. OF INDIA, TO THE IST| ||PETITIONER.| |EXHIBIT P1(B)|COPY OF THE LIST OF MEMBERS OF THE IST| ||PETITIONER.| |EXHIBIT P2|TRUE COPY OF THE REGISTER OF INTERCONNECT| ||AGREEMENTS (BROADCASTING ADN CABLE SERVICES)| ||REGULATION 2004, DATED 31.12.2004 ISSUED BY| ||RESPONDENT ALONG WITH ALL THE SUBSEQUENT| ||AMENDMENTS.| |EXHIBIT P3|TRUE COPY OF THE TELECOM REGULATORY AUTHORITY| ||OF INDIA (ACCESS TO INFORMATION) REGULATION,| ||2005 ISSUED BY RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE CONSULTATION PAPER DATED| ||23.3.2016 ON THE REGISTER OF INTERCONNECTION| ||AGREEMENTS (BROADCASTING AND CABLE SERVICES)| ||REGULATIONS, 2016 ALONG WITH THE SCHEDULES.| |EXHIBIT P5|TRUE COPY OF THE IST PETITIONER'S RESPONSE| ||DATED 25.4.2016 TO THE ADVISOR, TRAI, ON THE| ||2016 CONSULTATION PAPER.| |EXHIBIT P6|TRUE COPY OF THE TELECOMMUNICATION| ||(BROADCASTING AND CALBLE) SERVICES| ||INTERCONNECTION (ADDRESSABLE SYSTEMS)| ||REGULATIONS, 2017 ISSUED BY RESPONDENT, ALONG| ||WITH ALL THE SUBSEQUENT AMENDMENTS DATED| ||3.3.2017.| |EXHIBIT P6(A)|TRUE COPY OF THE TELECOMMUNICATION| ||(BROADCASTING AND CABLE) SERVICES STANDARDS OF| ||QUALITY OF SERVICE AND CONSUMER PROTECTION| ||(ADDRESSABLE SYSTEMS) REGULATIONS, 2017 ISSUED| W.P.(C) No.428/20 48 ||BY RESPONDENT, ALONG WITH ALL THE SUBSEQUENT| |---|---| ||AMENDMENTS DATED 3.3.2017.| |EXHIBIT P6(b)|TRUE COPY OF THE TELECOMMUNICATION (BROACASTING| ||AND CABLE) SERVICES (EIGHTH) (ADDRESSABLE| ||SYSTEMS) TARIFF ORDER, 2017, ALONG WITH ALL THE| ||SUBSEQUENT AMENDMENTS DATED 3.3.2017.| |EXHIBIT P7|TRUE COPY OF THE TELECOMMUNICATION| ||INTERCONNECTION REGULATIONS, 2018 ISSUED BY| ||RESPONDENT DATED 1.1.2018.| |EXHIBIT P8|TRUE COPY OF THE DRAFT TELECOMMUNICATION| ||(BROADCASTING AND CABLE SERVICES REGISTER OF| ||INTERCONNECTION AGREEMENTS REGULATIONS, 2019| ||RELEASED ON 22.4.2019 BY THE RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE COMMUNICATION DATED 13.5.2019| ||OF THE IST PETITIONER TO ADVISOR, TRAI, IN| ||RESPONSE TO THE DRAFT OF THE IMPUGNED| ||REGULATIONS.| |EXHIBIT P10|TRUE COPY OF THE RESPONSE OF THE INDIAN| ||BROADCASTING FEDERATION DATED 15.5.2019 TO THE| ||DRAFT REGULATIONS RELEASED BY THE RESPONDENT.| |EXHIBIT P11|TRUE COPY OF THE LETTER DATED 2.1.2020 ISSUED| ||BY RESPONDENT TO ALL THE BROADCASTERS AND| ||DISTRIBUTORS OF TELEVISION CHANNELS, INCLUDING| ||THE MEMBERS OF THE IST PETITIONER.| |ANNEXURE A1|TRUE COPY OF THE BOARD RESOLUTION OF THE| ||PETITIONER COMPANY DATED 22.1.2020| |ANNEXURE A2|TRUE COPY OF THE MULTI SYSTEM OPERATOR| ||REGISTRATION CERTIFICATE DATED 6.7.2015.| ## TRUE COPY PS TO JUDGE