India Pvt. Ltd Vs. Sea T.V. Network Ltd. & Another  Insc 354 (3 April 2007)
ARIJIT PASAYAT & S.H. KAPADIA
Being aggrieved by the direction issued by the Telecom Disputes Settlement
& Appellate Tribunal on 24.8.2005 ordering Star India Pvt. Ltd.
appellant herein to supply signals of its bouquet of channels by
entering into an Agreement with Sea T.V. Network Ltd. (respondent No.1 herein)
on such terms and conditions which are not unreasonable, Star India Pvt. Ltd.
has come to this Court by way of this civil appeal.
Star India Pvt. Ltd. is a company under the Companies Act, 1956. On 8.2.2005
Star India Pvt. Ltd. entered into Distributor Agreement with Moon Network Pvt.
(respondent No.2). M/s Moon Network Pvt. Ltd. under the Agreement was a
distributor. Under the said Agreement there was a recital. Under that recital
Star India Pvt. Ltd. had stated that it was an authorized distributor of the
Satellite T.V. channels namely Star Plus, Star Movies, Star World, Star News,
Star Gold etc. collectively referred to as New Channels Bouquet. Under the
Agreement Moon Network Pvt. Ltd. a Multi-System Operator (for short
MSO) was engaged in the business of transmission of TV channels
through cables. Under the Agreement Moon Network Pvt. Ltd.
was described as a distributor. Under the said Agreement Star India Pvt.
Ltd. appointed Moon Network Pvt. Ltd. as the distributor on a sole and
exclusive basis. The distributor was required to distribute the subscribed
channels in the territory of Agra. Moon Network Pvt. Ltd.
was thus appointed as the sole and exclusive distributor of the subscribed
channels through the cable network owned by it and operated by it in the
territory of Agra. It is interesting to note that under the Agreement, Star
India Pvt. Ltd. excluded the distribution of the subscribed channels through
DTH, CAS, Broadband or any medium other than through a ground cable network.
The said Agreement came into effect from January 1, 2005. The Agreement is
valid up to June 30, 2007, unless terminated in accordance therewith. Under the
Agreement Moon Network Pvt. Ltd. could execute an affiliation agreement
directly with its affiliate(s) in such form and manner to be approved by Star
India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd.
could use publicity material given to it by Star India Pvt.
Ltd. Under the Agreement Moon Network Pvt. Ltd. agreed to employ competent
staff and/or independent contractors for the purpose of the contract. Under the
Agreement Moon Network Pvt. Ltd. was recognized by Star India Pvt. Ltd. as a
MSO engaged in the business of transmission of T.V.
channels through ground cables. Under clause 6.3 of that Agreement it was
clarified that Star India Pvt. Ltd. made no representations and/or warranties
relating to continuity, content and the reception quality of the programmes on
the subscribed channels and that Star India Pvt. Ltd. will not be responsible
if a Delivery Failure is caused by factors not directly within the control of
Star India Pvt. Ltd.
Under the Agreement Star India Pvt. Ltd. agreed to deliver the
Decoders to the distributor Moon Network Pvt. Ltd.
However, under the Agreement it was stipulated that Moon Network Pvt. Ltd.
in turn would not re-sell or act as a dealer in respect of the said Decoders.
Under clause 16 of the Agreement the parties agreed that Moon Network Pvt. Ltd.
as a distributor will act as an independent contractor and that the
Agreement shall not create principal-agent relationship between Star India Pvt.
Ltd. and Moon Network Pvt. Ltd. That, neither party shall hold out to the rest
of the world any such relationship.
To sum up, Moon Network Pvt. Ltd. was appointed as an exclusive agent of
Star India Pvt. Ltd. in the territory of Agra. At the same time the Agreement
recognized the status of Moon Network Pvt. Ltd. as an MSO engaged in the
business of transmission of TV channels through ground cables. This aspect is
important since in the present controversy one of the main issue which arises
for determination is the difference between, transmission including
re-transmission of signals, on one hand and the expression providing TV
channels on the other hand which expression finds place under the
Telecommunication (Broadcasting and Cable Services) Interconnection Regulation,
2004 (hereinafter referred to as Interconnection Regulation).
At this stage we may state that although the above Agreement dated 8.2.2005
remains in force up to 30.6.2007 for some unknown reasons Star India Pvt. Ltd.
has entered into a distributor Agreement on 4.1.2006 under which Moon Network
Pvt. Ltd. are appointed as distributor. In the present case we are only
concerned with the interpretation of the Interconnection Regulation 2004, and
therefore, we are not required to go into any other aspect. However, it is made
clear that in such cases the Appellate Tribunal ought to have called for the
Distributor Agreement, if any, and not decide conceptually they do not go by
the facts of the individual cases. In the present case at one stage it was
argued vehemently by the appellants that Star India Pvt.
Ltd. had entered into an Agreement with Moon Network Pvt.
Ltd. and that Moon Network Pvt. Ltd. was therefore exclusive agent for the
territory of Agra. It was argued that Star India Pvt. Ltd. was required to
appoint an agent in different territories looking to the economies of scale of
operations carried out by Star India Pvt. Ltd. throughout India. However, when
the Court perused the contents of the Agreement we find that the Agreement is a
Distributor Agreement. As stated above the Agreement expressly stated that Moon
Network Pvt. Ltd. was an independent contractor and that the relationship
between the parties was on principle to principle basis and that there was no
relationship of principal and agent, as contended by the appellants before the
On behalf of the Star India Pvt. Ltd, Shri Mukul Rohtagi, learned Senior
Counsel submitted that the appellant Star India Pvt. Ltd. is a broadcaster of
TV channels and that Moon Network Pvt. Ltd. was an MSO for supply of TV
channels for distribution in the city of Agra. He contended that when Sea T.V.
Network respondent No.1 herein approached Star India Pvt. Ltd. for supply of
signals in that territory; Sea T.V. was directed to approach Moon Network Pvt.
Ltd. However, Sea T.V. Network did not agree to take the signals from Moon
Network Pvt. Ltd. since Moon Network Pvt. Ltd. was also a competing MSO.
According to the learned counsel under the Interconnection Regulation framed by
TRAI there was no prohibition on Star India Pvt.
Ltd. in the matter of appointment of any MSO as its agent on exclusive basis
for a given territory. Reliance was placed by learned counsel on Regulation 3.3
read with Explanatory Memorandum. He contended further that any such prohibition
would be hit by Article 19(1)(g) of the Constitution. It was further urged that
the above Agreement/arrangement was in consonance with the Interconnection
Regulation since Star India Pvt. Ltd. was entitled to align its business in a
lawful manner under Article 19(2)(1)(g) of the Constitution. The learned
counsel further submitted that under Regulation 3.3 we get a clarification of
what is implicit in Regulations 3.1 and 3.2, namely that a broadcaster is
entitled to give signals through an agent, who can also be a MSO in a
vertically integrated industry so as to reduce high distribution costs.
That, a broadcaster can enter into any business arrangement model which
protects its financial interest since there was no prohibition on such
arrangement. According to the learned counsel appointment of an MSO as an agent
per se is not prejudicial to competition and if at all it is prejudicial it
should be established in each case by the complainant. According to the learned
counsel appointment of a MSO as an agent is necessary since he knows the ground
realities. He is not in a position to ascertain the number of subscribers and
that the Interconnection Regulations themselves therefore contemplate and
permit an overlap between the agent and the MSO. It was submitted that the
cable industry in India has grown in an environment which has provided
inadequate protection to broadcasters. It is, therefore, disorganized
ultimately having an adverse effect on the consumers. According to the learned
counsel there is in the Indian market large-scale under declaration regarding
number of subscribers which results in an inequitable sharing of subscription
revenues. According to the learned counsel on a proper interpretation of the
Interconnection Regulation it is clear that a broadcaster is obliged to provide
its signals to all distributors of TV channels on non-discriminatory basis. But
the manner of providing signals has been left to the discretion of the
According to the learned counsel the Interconnection Regulation for
establishing a must provide regime under which every distributor is
entitled to the signals of every broadcaster on account of the heavy
distribution costs widespread under-declaration of number of subscribers and
the fragmented nature of the market the Regulations have given the broadcaster
the flexibility to decide whether to provide signals directly or through an
agent. According to the learned counsel therefore, there is no particular
business model prescribed by the said Interconnection Regulation, and
therefore, the Tribunal had fallen in error in holding that a distributor of TV
channels cannot be an agent as provided for in Regulation 3.3. According to the
learned counsel there is no such prohibition in the definition clauses nor in
the pre-clauses of the Interconnection Regulations. According to the learned
counsel the Tribunal has erred in regarding distributors, agents, MSOs and
cable operators as entirely separate and distinct categories. According to the
learned counsel under the said Interconnection Regulations there is a
considerable overlap between each of the above categories because each of the
above entities is capable of discharging different functions. The learned
counsel, therefore, placed heavy reliance on the Explanatory Memorandum in
support of his contentions particularly, in respect of his contention that the
mode of providing signals by the broadcasters is left to an individual
broadcaster who may provide its signals directly or through a designated
agent/distributor or any other intermediary as long as such provision is fixed
on non- discriminatory basis. According to the learned counsel the Tribunal has
failed to consider the Explanatory Memorandum and the responses of the TRAI to
the comments of the stake holders. According to the learned counsel the
Tribunal has failed to appreciate that the term Distributor of TV
channels includes all the entities involved in reaching the broadcasters
signals to the ultimate consumer. It is urged that the impugned judgment has
the effect of restricting the scope of clause 3.3 on the basis of an erroneous
interpretation of the definition of the word agent in Interconnection
Regulation 2(b). According to the learned counsel the impugned judgment is
erroneous since it renders clause 3.3 meaningless since the said interpretation
disallows a broadcaster from providing signals through an agent. According to
the learned counsel clause 3.3 is a clarification to clauses 3.1 and 3.2 which
states that the consumer must have access to every broadcasters channel on
a non-discriminatory basis, but the manner of achieving this object has been
left to the broadcaster to decide. According to the learned counsel the
definition of the word agent in the Interconnection Regulations do
not provide the manner in which the agent would make available the TV channels
to the distributor.
According to the learned counsel the words make available in
Regulation 2(b) would include giving of Decoders and supply of signals through
cable feed. According to the learned counsel there is no functional difference
between re- transmission of signals and making available the TV channels.
According to the learned counsel there is hardly any difference in the quality
of signals that can be received by a distributor through Decoders and through a
cable feed. For a distributor to obtain TV channels through Decoders the
distributor must possess a dish-antena for downloading the signals from the
satellite of the broadcaster and a divider which divides the signals into
various channels. The distributor also requires separate Decoders for each
channels with an activated viewing card.
A distributor who obtains the signals through the cable amplifies it and
distributes it to the other distributors and subscribers through the ground cable.
That, the quality of signals transmitted through the cable is comparable to the
quality of signals obtained through the Decoders.
According to the learned counsel a distributor who obtains signals through
Decoders is required to invest in the infrastructure consisting of Decoders,
dividers, modulators and amplifiers whereas a distributor who obtains signals
through the cable has not to make such investments and at the same time the
same quality of signals can be obtained through the cable feed which requires
investments in amplifiers, splitter and cabling. According to the learned
counsel the interpretation accepted by the Tribunal vide impugned judgment
would require an MSO to invest huge amounts in the requisite infrastructure and
obtain signals through Decoders, and therefore, the distinction made by the
Tribunal between re-transmission and making available TV signals is not
appropriate since the same definition applies to agents appointed by MSOs.
Accordingly, it was submitted on behalf of the appellant that the Tribunal had
erred in holding that providing signals to a distributor through an agent who
is also a distributor is per se discriminatory.
According to the appellants discrimination in cases of overlap of functions
should be established on case to case basis and if in a given case if it is
found that the agent is conducting itself in a manner prejudicial to
competition then clauses 3.4 and 3.6 which provides for redressal would apply.
In order to consider the above arguments we quote hereinbelow the relevant
provisions of the Interconnection Regulations dated 10.12.2004 :
2. DefinitionsIn this regulation, unless the context otherwise requires:
(b) agent or intermediary means any person including an
individual, group of persons, public or body corporate, firm or any
organisation or body authorised by a broadcaster/multi system operator to make
available TV channel(s), to a distributor of TV channels;
(h) cable service means the transmission by cables of programmes
including re- transmission by cables of any broadcast television signals;
(i) cable television network means any system consisting of a set
of closed transmission paths and associated signal generation, control and
distribution equipment designed to provide cable service for reception by
(j) distributor of TV channels means any person including an
individual, group of persons, public or body corporate, firm or any
organisation or body re-transmitting TV channels through electromagnetic waves
through cable or through space intended to be received by general public
directly or indirectly. The person may include, but is not limited to a cable
operator, direct to home operator, multi system operator, head ends in the sky
(m) multi system operator means any person who receives a
broadcasting service from a broadcaster and/or their authorised agencies and
re-transmits the same to consumers and/or re-transmits the same to one or more
cable operators and includes his/her authorised distribution agencies.
(n) service provider means the Government as a service provider
and includes a licensee as well as any broadcaster, multi system operator,
cable operator or distributor of TV channels.
3. General provisions relating to non- discrimination in interconnect
3.1 No broadcaster of TV channels shall engage in any practice or activity
or enter into any understanding or arrangement, including exclusive contracts
with any distributor of TV channels that prevents any other distributor of TV
channels from obtaining such TV channels for distribution.
3.2 Every broadcaster shall provide on request signals of its TV channels on
non- discriminatory terms to all distributors of TV channels, which may
include, but be not limited to a cable operator, direct to home operator, multi
system operator, head ends in the sky operator; multi system operators shall
also on request re-transmit signals received from a broadcaster, on a non-
discriminatory basis to cable operators.
Provided that this provision shall not apply in the case of a distributor of
TV channels having defaulted in payment.
Provided further that any imposition of terms which are unreasonable shall
be deemed to constitute a denial of request
3.3 A broadcaster or his/her authorised distribution agency would be free to
provide signals of TV channels either directly or through a particular
designated agent or any other intermediary. A broadcaster shall not be held to
be in violation of clauses 3.1 and
3.2 if it is ensured that the signals are provided through a particular
designated agent or any other intermediary and not directly. Similarly a multi
system operator shall not be held to be in violation of clause 3.1.and 3.2 if
it is ensured that signals are provided through a particular designated agent
or any other intermediary and not directly.
Provided that where the signals are provided through an agent or
intermediary the broadcaster/multi system operator should ensure that the
agent/intermediary acts in a manner that is (a) consistent with the obligations
placed under this regulation and (b) not prejudicial to competition.
ANNEXURE A EXPLANATORY MEMORANDUM xxxxxxxx xxx xxxx xxx Discriminatory
3. In India, competition for delivery of TV channels is not only to be
promoted within the cable industry but also from distributors of TV channels
using other mediums like direct to home (DTH), head ends in the sky etc. It is
important that all these distribution platforms are promoted so that they
provide consumers with choice. It would be very important that at this stage
vertical integration does not impede competition.
Vertically integrated broadcaster and distribution network operators would,
in the absence of strong regulation, have the tendency to deny popular content
to competing networks or to discriminate against them.
4. One method of checking these practices is to stop at the source any
chance of anti- competitive behaviour by ruling that vertical integration will
not be allowed. This route could, however, impede investments and in the long
run adversely affect competition. The only DTH platform today has a degree of
vertical integration. There is another pay DTH platform which is awaiting
approval from the Government that also has a degree of vertical integration.
DTH is the platform most likely to provide effective competition to cable
operators. Restriction of vertical integration could therefore, lead to a
situation where the DTH roll-out could be affected and hence competition. It is
for this reason that the alternative route has been looked at; controlling
anti-competitive behaviour wherever it manifests itself. These issues are dealt
with in the following paragraphs.
5. Generally, TV channels are provided to all carriers and platforms to
increase viewership for the purpose of earning maximum subscription fee as well
as advertisement revenue. However, according to some opinions, if all platforms
carry the same content, it will reduce competition and there will be no
incentive to improve the content. Some degree of exclusivity is required to
differentiate one platform from the other.
6. Exclusivity had not been a feature of Indias fragmented cable
However, the roll-out of DTH platform has brought the question of
exclusivity and whether it is anti competitive to the forefront. Star India Ltd
and SET Discovery Ltd do not have commercial agreements to share their contents
with ASC Enterprises on its DTH platform and at present are exclusively
available on the Cable TV platform. ASC Enterprises claims that the future
growth will remain impacted by the denial of these popular contents. Space TVa
joint venture of Tatas and Star, is also planning to launch its digital DTH
It has applied for licence to the Government for the same. The DTH services
have to compete with Cable TV. If a popular content is available on Cable TV
and not on the DTH platform, then it would not be able to effectively give
competition to the cable networks.
Must provide through whom?
11. There is high cost involved in the distribution of TV channels if the
market is fragmented. To reduce the distribution costsbroadcasters/ multi
system operators should be free to provide access in the manner they think is
beneficial for them.
The must provide of signals should be seen in the context that
each operator shall have the right to obtain the signals on a
non-discriminatory basis; but how these are provided - directly or through the
designated agent/distributoris a decision to be taken by the
broadcasters/multi-system operator. Thus the broadcaster/multi system operator
would have to ensure that the signals are provided either directly or through a
particular designated agent/distributor or any other intermediary.
Quality of TV Channel Signals
13. Some cable operators had apprehended that in case TV channel, signals
are provided through cable and not directly then the quality of transmission
could deteriorate and accordingly it was suggested that agents must provide
services through IRDs. The Authority through this regulation has framed the
principle of non- discriminatory access, which also includes non-discriminatory
access in terms of quality of signals. Operators can seek relief if it is found
that the quality of their signals is being tampered with.
Safeguards for Broadcasters
14. In this context it must be recognised that certain basic criteria must
be fulfilled before a service provider can invoke this clause. Thus the service
provider should be one who does not have any past dues. Similarly, provisions
for protection against piracy must be provided.
However, the content provider must establish clearly that there are
reasonable basis for the denial of TV channel signals on the grounds of piracy.
Discrimination in providing TV channel signals
17. In case any distributor of TV channel feels he/she has been
discriminated on terms of getting TV signals compared to a similarly based
distributor of TV channel, then a complaint must be filed with the broadcaster
or multi system operator, as the case may be. In case the complainant is not
satisfied with the response, he/she may approach the appropriate forum for
We do not find any merit in the civil appeal for the following reasons :
Firstly, we do not find any error in the judgment which has held that in
providing signals to a distributor through an agent who is also in turn a
distributor is per se discriminatory. We agree with the contention of Mr.
Rohtagi learned senior counsel that in the case of overlap of functions to be
performed by each entity under the Interconnection Regulations like a
Distributor, MSO, agent/ intermediary, one has to go by the facts of each case
and the terms of Agreement between the broadcaster and his agent cum
distributor. Every contract under the Interconnection Regulations has two
aspects. One concerns the commercial side whereas the other concerns the
technical side. There is no difficulty for the commercial side. If the
broadcaster appoints an agent on the commercial side to collect the statistics
of the number of subscribers or for distribution of Decoders there is no
dispute. On the commercial side when an agent is appointed by the broadcaster
that agent need not be from the Operation Network. Such an agent normally is
not a technical service provider. The difficulty arises when the broadcaster as
in the present case appoints or enters into an agreement with a distributor,
who in turn is an MSO and who in turn has his own business because in such a
case such an agent-cum-distributor is also a competitor of the MSO who seeks
signals from the broadcaster. We are living in a competitive world today. If
under the Interconnection Regulations an MSO is entitled to receive signals
directly from a broadcaster, if directed to approach his competitor MSO then
discrimination comes in. The reason is obvious. The exclusive agent of a
broadcaster has his own subscriber base. His base is different from another MSO
in the same territory. If that another MSO has to depend on the Feed to be
provided by the exclusive agent of the broadcaster then the very object of the
Interconnection Regulation stands defeated.
We are satisfied that even technically the quality of signals receivable
through the Decoders is different from the quality of signals receivable
through cable feed. In the present case the broadcaster has appointed Moon
Network as its Distributor for the territory of Agra. In the present case the
Agreement provides that Moon Network Pvt. Ltd. will operate on principle to
principle basis and will not be an agent of Star India Pvt. Ltd.
(Broadcaster). In that Agreement it is expressly provided that Moon Network
Pvt. Ltd. would not be entitled to use any other medium except ground cable.
Under the Distribution Agreement the Broadcaster has appointed the Moon Network
Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It
is important to note that under the Interconnection Regulations exclusivity of
contracts stands eliminated.
Notwithstanding such regulations the broadcaster in the present case has
appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive
distributor of the subscribed channels through the cable network owned and
operated by Moon Network Pvt. Ltd. in the territory of Agra. (See clause 1.1).
This is where the difficulty comes in The object of Interconnection Regulation
is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in
competition with Moon Network Pvt. Ltd.
and if it is to depend on the Feed provided by its competitor and if the
quality of the signals available through that Feed is poorer than the quality
of the signals available through Decoders, then the Tribunal is right in
holding that the above arrangement is per se discriminatory. It is important to
bear in mind that Sea T.V. Network and Moon Network Pvt. Ltd. are in turn MSOs.
When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor
with a direction to distribute the signals through the infrastructure of Moon
Ltd. then the quality of the signals receivable by Sea T.V. Network may not
be the same as the quality of signals through Decoders. In this connection
fudging of data (voice and picture) is possible. Even the speed of
data-transmission to Sea T.V. Network could get affected.
In such cases it is the subscribers of Sea T.V. Network who would be
adversely affected. The picture quality would be affected. The reason for this
is also obvious.
Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the
broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to
distribute the majority thereof to its own subscribers and the balance could be
transferred through the cable to Sea T.V.
Network. The quality of the signals receivable by Moon Network Pvt. Ltd.
directly from the broadcasters would certainly be better than the quality,
speed etc. of the signals receivable by Sea T.V. Network. It is for this reason
that Sea T.V. Network refused to take signals through the feed. Therefore apart
from competition, the business of Sea T.V. Network to the above extent is also likely
to be affected because of the poor quality of signals through the feed. In such
an event the subscriber base of Sea T.V. Network would shift and become part of
the subscriber base of Moon Network Pvt.
Ltd. in Agra.
Secondly, keeping in mind what is stated above, we may examine the scope of
the said Interconnection Regulations. There is a basic difference between
making available T.V. channels and re-transmission of T.V.
channels. We have quoted the definition and provisos from Interconnection
Regulation. Under clause 2(b) an agent is a person authorized by a broadcaster
to make available T.V. channels to a distributor of T.V. channels. In that
definition we have a broadcaster, an agent of the broadcaster and a
distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network
(which Agreement was not placed before the Tribunal) Moon Network Pvt. Ltd.
is a distributor of T.V. channels. It is not an agent. In fact, the contract
indicates that the relationship between Star India Pvt. Ltd. and Moon Network
Pvt. Ltd. is not based on principal-agent relationship.
In other words the Star India Pvt. Ltd. has given distribution rights
exclusively to Moon Network Pvt. Ltd.
for the territory of Agra. This was never disclosed to the Tribunal. Before
the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star
India Pvt. Ltd.
It is for this reason that Sea T.V. Network is asked to approach Moon
Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network
is made to depend for the signals on the feed to be provided by Moon Network
Pvt. Ltd. Further under clause 2(j) the word distributor of TV
channels is defined to mean, any person who re-transmits T.V. channels through
electromagnetic waves through cable. When signals are provided through Decoders
the matter comes under the expression make available T.V. channels in
terms of clause 2(b)of the Interconnection Regulations. Clause 2(b) is
applicable because the broadcaster makes available the T.V. channels to its
distributor namely Moon Network Pvt.
Ltd. On the other hand between Moon Network Pvt. Ltd.
and Sea T.V. Network clause 2(j) would apply because after receiving signals
through the cable from the broadcaster the distributor (Moon Network Pvt. Ltd.)
re-transmits the T.V. channels through the Feed to Sea T.V. Network.
Therefore, there is vital distinction between what is received by an
agent-cum-distributor from the broadcaster and what is subsequently
re-transmitted by that agentcum- distributor to other MSOs/Cable Operators like
Network. In our view the Tribunal, has therefore, correctly drawn a
distinction between what is called as making available of T.V.
channels and re-transmission of T.V. channels under the above two clauses.
Keeping in mind the above distinction it is clear that although a broadcaster
is free to appoint its agent under the proviso to clause 3.3 such an agent
cannot be a competitor or part of the network, particularly when under the
contract between the broadcaster and the designated agent-cum- distributor
exclusivity is provided for in the sense that the signals of the broadcaster
shall go through the cable network owned and operated by such an agent-cum-
distributor which in the present case happens to be Moon Network Pvt. Ltd.
In the circumstances there is no merit in this civil appeal.
Before concluding we may once again reiterate that the Appellate Tribunal in
the present case has correctly interpreted the scheme of Interconnection
However, in cases of functional overlap we are of the view that in every
matter the Tribunal will examine the written contracts between the parties and
ascertain actual prejudice/discrimination and not decide the matter on
conceptual basis. In the present case we insisted on the appellants for
producing the written Agreement with which clarity has emerged. But for
examination of such contract it would not be proper to decide matters on per se
For the aforestated reasons we find no merit in this civil appeal and the
same is accordingly dismissed with no order as to costs.
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