Kerala HC Stays TRAI Regulation On Freezing Of Placement Of Channels [Read Order]

The High Court of Kerala on Monday stayed the amendment brought by Telecom Regulatory Authority of India in 2020 regarding the freezing of placement of channel in perpetuity.

The interim order staying the amended provision in Regulation 18(4) of Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems)(Second Amendment) Regulations 2020 was passed by Justice Anu Sivaraman in a writ petition filed by All India Digital Cable Federation and Kerala Communications Cable Ltd.

As per the amended provision, the Local Channel Number (LCN) allotted to a channel cannot be changed without the prior permission of TRAI. The said amendment was challenged, inter-alia, on the ground that placement of channel was not within the jurisdiction of TRAI. Senior Advocate Jayant Mehta, appearing for the petitioner, contended that the TRAI's power was only with respect to interconnection, and hence the regulations amounted to an unwarranted interference with the right to freedom of trade and business of the channels.

Senior Advocate Saket Singh, appearing for TRAI, claimed that it had power to regulate placement of channels, and that the regulations were mooted following required consultations.

The Court noted that the changes were implemented by TRAI without following proper consultative process with the stakeholders as mandated by the TRAI Act,

"I am unable to find a specific proposal having been mooted with regard to requirement for a prior permission to change the placement of a channel. Furthermore, I notice that no indications of any criteria for the consideration of the request for the change of channels has also been framed", Justice Anu Sivaraman noted in the order.

"I find that with regard to the question of placement, the very jurisdiction of TRAI has been challenged. The question whether placement of channels is part of interconnection and can be regulated by TRAI is said to be pending before the Supreme Court. Moreover, the explanatory memorandum would show that what was put for discussion was sequencing of channels in the Electronic Program Guide (EPG). The question of freezing of placements and the embargo as to change of placements without prior permission of TRAI does not appear to be a question that was put to consideration at all. Moreover, there are no guidelines as to how applications for permission to change LCN will be dealt with by the TRAI. Even if it is admitted for the purpose of this order that TRAI has jurisdiction under Section 36, it is apparent that the proposals with regard to freezing of placement of a channel in perpetuity and permission for change being imposed was not preceded by any specific consultation on the said question", the order stated.

The HC further directed the petitioner to make a detailed representation to the Telecom Regulatory Authority of India (TRAI) regarding the changes in the New Tariff Order following which the regulator will have to arrive at a decision on the same.

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