By Sudipta Bhowmick, KIIT School of Law, Bhubaneswar.
The Delhi High Court has ruled that Prasar Bharti can air the feed it gets from private sports broadcasters only on its terrestrial network in a move that should benefit companies such as Star India Pvt. Ltd.[1] This judgement of Delhi High Court followed the action when the appellants BCCI, Nimbus, ESPN Software India Pvt. Ltd and Star India Pvt. Ltd filed the LPA to seek the striking down of Section 3 of the Sports Act insofar as it relates to cricket test matches. There are also prayers for –
- Striking down the notification dated 13.09.2000 issued by Prasar Bharati Broadcasting Corporation (hereinafter referred to as Prasar Bharati) under the CTN Act, inter alia, mandating that DD1 (National Channel) and DD (News Channel) be carried compulsorily by cable operators.
- Striking down of the order dated 29.05.2007 issued by the Government of India, Ministry of Information and Broadcasting was also sought.
- striking down the Notification dated 03.07.2007 issued by the Central Government and the Notification dated 19.10.2007 issued by the Ministry of Information and Broadcasting.
In furtherance to that, another Public Interest Litigation has been filed by one Ravi Dev Gupta claiming to be the President of Akhil Bharatiya Grahak Panchayat, with a declaration that a portion of the notification dated 03.10.2007, is ultra vires the Sports Act and also Article 14 of the Constitution of India.
Main Contention:
This case pivots around the conflict between Section 3[2] of Sports Broadcasting Signals Act, 2007 and Section 8[3] of Cable Television Network Act,1995.
Reasoning Behind the Judgment:
As the Sports Act is an expropriated legislation[4], Section 3 of the Sports Act must be interpreted in a strict manner. From that, it can be construed that the simultaneously shared live broadcasting signal can only be re-transmitted by Prasar Bharati without the intervention of a cable operator. 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.
Also, the object and purpose of the Sports Act is to provide access to the largest number of the viewers, on a free-to-air basis on sporting events of national importance through mandatory sharing of sports broadcasting channels with Prasar Bharati. The purpose and object behind Section 3 of the Sports Act is not to re-transmit the live broadcasting signals in such a manner so as to reach those consumers/subscribers, who, in any event, are connected by cable. It 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.
Also, ESPN / STAR has paid huge sum of money (Rs 3851 crores) to BCCI to purchase the content rights for the period April 2012 to March 2018. It has purchased those rights from BCCI which has been recognized as an organizer of the Sports (Cricket) and BCCI has also been recognized as being fuelled by the motive to promote the game of cricket rather than for pure business gain. BCCI derives its substantial revenue from media rights and not from gate receipts. It is these revenues, which are spent for the development of sports and sporting facilities relating to cricket all over India. If these revenues are affected, it is ultimately the sport of cricket which would suffer. Therefore, there has to be protection of the value of the content rights without, of course, impinging on the public interest rights of citizens.
But, by virtue of Section 3 of the Sports Act, although Prasar Bharati has not paid for it, the live broadcasting has to be shared by the content rights owner with Prasar Bharati, compulsorily. It is in the nature of a compulsory exaction. But, it must be read with the limitation prescribed in the Section itself and, that is, to enable Prasar Bharati to re-transmit the same on its terrestrial networks and DTH networks. It cannot expand this manner of acquisition to such an extent as to virtually become the content rights owner itself.
BCCI is the content rights owner. It has sold these rights to ESPN /STAR, which, in turn, sends the live feed in an encrypted form to its satellites. From the said satellite, the feed is sent to its own channels (ESPN / STAR Sports, STAR Cricket, STAR Sports 2, STAR Cricket HD and ESPN HD) for distribution either through their own DTH networks or through cable operators. In either eventuality, they are subscribed services.
Alongwith signals sent through their own distribution channels, ESPN / STAR shares the signals with Prasar Bharati, which is sent to Prasar Bharati in an encrypted form. Prasar Bharati re-transmits the signals in an encrypted form to its satellite, which, then streams that signal to three different networks. The three networks being the DTH network of Prasar Bharati, the DD Kendras (terrestrial networks) and private cable operators through the must carry obligation stipulated under Section 8 of the CTN Act. Thus, cable operators have access to the broadcast of the sporting events through two different channels. One through the channels of ESPN / STAR and the other through the channels of Doordarshan. While, the former is to be paid for, the latter is free.
From the above, it is evident that what ESPN / STAR and BCCI are objecting to is not the transmission of the signals through the DTH and terrestrial networks of Prasar Bharati, but the free transmission of the signals by Prasar Bharati through cable operators. This, according to ESPN / STAR, has hit them in two ways. The first being, by reduced advertisement revenue and the second being by reduced subscription revenue. Those homes, which were connected via cable networks would have paid for receiving the live broadcast signals had Prasar Bharati through Doordarshan not provided the same free of cost to the cable operators. Although there is an argument that by virtue of Section 3(2) of the Sports Act, the advertisement revenue received by Doordarshan in respect of the shared content was also to be shared in the ratio of not less than 75:25, it still does not cater to the loss of subscription revenue. Furthermore, it has been pointed out that the advertisement revenue, which ESPN / STAR would have made on its own, would not be matched by Prasar Bharati and, therefore, the provision of Section 3(2) of the said Act was no consolation for providing the feed free to the cable operators.
Conclusion:
The Court ordered that “the appeal as well as writ petition (civil) 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.” Public Interest Litigation was dismissed. On Feb. 9 of 2015, Prasar Bharati filed a special leave petition in the Supreme Court (SC) to appeal against the judgment of the Delhi High Court (HC) barring it from sharing signals of the ICC World Cup Cricket 2015 with cable operators.[5] The Supreme Court suspended the Delhi High Court order and in effect, cable operators will be able to access the Doordarshan feed of the World Cup matches, which Prasar Bharti mandatorily receives from private sports broadcasters as per law.[6]
[1] http://www.livemint.com/Consumer/NxWAbNniTA8XWwpXeKXPgJ/HC-bars-Prasar-Bharti-from-sharing-signal-with-cable-DTH.html?utm_source=copy
[2](l) 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] (1) The Central Government may, by notification in the Official Gazette, specify the names of Doordarshan channels or the channels operated by or on behalf of Parliament, to be mandatorily carried by the cable operators in their cable service and the manner of reception and re-transmission of such channels.
Provided that in areas where digital addressable system has not been introduced in accordance with the provisions of sub-section (1) of section 4A, the notification as regards the prime band is concerned shall be limited to the carriage of two Doordarshan terrestrial channels and one regional language channel of the State in which the network of the cable operator is located.
[4] State of Madhya Pradesh and Others v. Vishnu Prasad Sharma and Others: AIR 1966 SC 1593.
[5] http://www.indiantelevision.com/television/tv-channels/terrestrial/prasar-bharati-moves-sc-against-delhi-hc-judgment-on-world-cup-telecasts-150209
[6] http://www.livemint.com/Politics/nuWkj5yU888xrj0uwFeTSI/SC-stays-Delhi-HC-order-barring-Prasar-Bharti-from-sharing-D.html?utm_source=copy