The Telecom Appellate Tribunal ( TDSAT ) has, in the case of WWIL (Wire and Wireless (India) Ltd vs. M/s MSM Discovery Pvt. Ltd, judgment dated 7th January* ), finally recognised the unreasonable terms imposed by the broadcaster on the content aggregator / carrier ( technically called Muti system operator - MSO ) while arriving at an understanding for transmitting signals to telecast channels of that broadcaster.
The Tribunal has pronounced against the broadcaster’s high handed conduct, as quoted here -
“…As per the Regulation 3.1 the distributor of the TV channel is prevented to engage in any practice or activity or understanding or arrangement to give exclusivity in its contracts with any distributor of TV channels which prevents any other distributor to obtain such channels for distribution. Exclusivity has not been permitted as a feature of India's fragmented cable TV market by regulation. Exclusivity creates an inherent defect of being an agent of the broadcaster as an MSO who will not permit any other MSO to compete with it, thereby eliminating the competition at all. The learned counsel has quoted the Apex Court Case No.(2007) 4 SCC 656 Star India Private Limited vs Sea TV Network Ltd. The Apex court has approved the principle which has been enshrined in Clause 3.1 of the Interconnect Regulations.
6. Taking cognizance of this regulation and from the proceedings between the petitioner and the respondent, it is evident that imposing a minimum guaranteed sum on the petitioner by the respondent in the event of deactivation/discontinuation of signals to other MSOs exactly from the date of the event, is as good as giving exclusivity of the contract and eliminate the process of competition amongst various other TV channel distributors if any, as MSOs/LCOs in the impugned area…..”
For the broadcaster, it is a common practice in the broadcasting industry, to flex muscle on the MSOs by –
· Imposing minimum amount as guaranteed annual subscription which would be beyond the fee calculated towards actual subscriber base which the MSO has in that area of operation.
· Restrict one MSO’s area of operation while granting another MSO license to operate in the entire territory. By playing one against the other they can offer exclusive rights to the tougher one and then dictate their milking terms.
· Such arm twisting methods not only create conflict of interest amongst the MSOs, not allowing them to co-exist, more so ruin their chances of creating cartels and joining hands for mutual gains.
On the other hand the broadcaster soon buys out the larger MSO to form a vertical alliance of broadcasting and carrier services. In effect, now they can nurture their own alliance partner, not allowing any other MSO to operate, virtually making it impossible for the other MSOs to function in that territory.
Such anti-competitive practices came in the realm of negotiable commercial terms in the contract, as earlier viewed by the Telecom tribunal. Dictating unreasonable terms and creating an exclusive arrangement with a service provider, although curbed by the interconnect regulations, were more often not interfered with by the Tribunal. The tribunal would be more inclined generally to direct the parties to settle their commercial terms.
However, the latest judgment, in the case of WWIL, is a sigh of relief for the MSOs and local cable operators who were at the mercy of the broadcaster to give them signals – on the thumb rule of might is right !. Parties sometimes also use litigation as a route to avoid their obligations where an issue is a grey area and besides winning or loosing, parties like to buy time to perform and/or disrupt business activities. Such pronouncements which lay down the law clearly, enforcing Regulations, have the advantage of avoiding unnecessary litigation between parties.
* http://www.tdsat.nic.in/07.01.2009/P_No.215(C)_of_08.htm
Wednesday, January 14, 2009
Monday, December 8, 2008
A RESOLVE, BETTER LATE THAN NEVER - Illegitimi non carborundum
To,
The Indian Intelligensia,
Friends, I dedicate the title of this article, to our political class who are patholigically incapable of owning mistakes which had disastrous consequences !!
For those who haven’t encountered this phrase, Illegitimi non carborundum is a mock-Latin aphorism jokingly taken to mean "don't let the bastards grind you down".
I know, this phrase originated during world war II and was used by a US Army general as his motto during the war. In the context of the horrifying carnage in mumbai, I could have used this title in a positive spirit to say that we must not fear and blah blah…but ironically, I can’t be sitting back and fooling myself when time and again it is clear that our own polity, wearing the mask of administrators, are our biggest enemies. Did you get that very apt sms saying “ Don’t be afraid of those who came by boat, be afraid of those who came by vote..” ?.
Visualising India
Volumes after dusty volumes would be written in the history of india about the repeated failures of our governance system ( the lack of it really…) and the unique absence of formula for setting up security for our citizens, having a workable criminal justice system !How many of us know that the criminal justice system does not work?.Unless under compelling circumstances or unless one has a malafide intent to accuse someone of criminal charges, would any of us actually choose to pursue a remedy in law with true faith in the criminal justice system and/or the enforcement agencies ??When majority of us are absolutely sure that the entire criminal justice system cannot provide real remedy, wouldn’t criminals ( small or hardened ) not know that ? And then they make mickey out of the existing authorities.
Apparent questions and obvious answers
If the states cannot enforce law and order then shouldn’t there be any system of giving power to the centre?,
what about accountability? ,
Shouldn’t certain laws relating to crime and security be centralized?,
Do we need to review crimes that should not be bailable anymore?,
In light of this, review interpretation of entries in the state and concurrent list of the constitution ?.
Rude awakening to real issues at hand
Creating communal divide by political parties is showing remarkably successful results!!.
Isn’t it threatening the security of the state and therefore ought to be declared / defined as a crime ?.
When it suits the government, for the sake of enlarging their vot bank, they can make some very stringent laws. For eg; Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989.
Why is calling a SCST “chamar” made a crime in law and enforced by this special draconian Act ?.
How reliable is our legal system ?.
In our country, the legal route is chosen by many to let the issue whither away and die a slow and prolonged death. Its not just the law but also the enforcement agencies involved along the chain who contribute to this. Laws drafted and are a obvious failure need to be reviewed in this situation so that they are enforceable and executable AND on the other hand enforcement agencies should respect the law and be accountable for lapses.
When we are faced with this pathetically frustrating system we realize that we are thE poor common man suffering – till it does not happen to us we don’t speak up !! and we see how, despite a justice system, the poor common man puts the blame on his destiny when he encounters a bad officer or a judge. Why isn’t he more confident of getting the result which the law provides ? isn’t it always a mystery and left to the hands of the lawyer, officer and judge he has to deal with?. When good officers and judges simply do their duty they are looked at as heroes. But since they are rare to find, yes they are heroes.
Just making laws does not help !! For instance, arguing whether POTA should be there or not is of no consequence.
Stepping ahead towards a new century
How will there be enforcement of criminal laws?
There are 3 types of evidence which are allowed to be admissible –1. Eye witnesses2. Direct evidence3. circumstantial evidence which can be traced back to chain of events.
Enforcement should be done with a known formula. It should envisage the result to be achieved, keeping realities in mind. Thus, what is a real solution should be known alongwith the length of time it “should” take to be achieved so that –• Eye witness can be used effectively and efficiently• Judges do not keep changing and delaying the prosecution • The rules of evidence are given EFFECT to.• There should be fall back options for difficulties known that could hamper enforcement – how to counter the same ( instead of giving excuses and playing blame game later ).
According to Common Wealth Human Rights initiative director Maja Daruwala: “This time it was Taj and terrorists. But on a daily basis, how many people in Delhi alone get murdered, maimed, robbed and raped ? Is the police able to prevent and investigate such cases and come to a quick solution?. The fact is that ordinary security is not available. Had supreme court directives on police reforms been obeyed, they would have removed police from political control, giving it operational responsibility.”
We need to move on to help us survive and sustain in today’s times. People will bend towards real development, even if its through the hands of corrupt politicians. And real development means having a comfortable environment first. When the foundation and political will to progress in every way is strong, other requirements of law and order etc will also fall in place. If the system is dependable, people will respect the system and be more law abiding. The same indians transform overnight when they travel abroad. Don’t we feel its easier to commute and deal with the system in a FOREIGN country – then don’t we respect their laws?. How have they effectuated this?. Look at the development in a country like Malaysia – reputed to be muslim dominated, having a corrupt political system …somewhere there needs to be Honest “political will” to change for the better.
sharing vision – going to the root of the matter
Integrity in the nation will come when we value what we possess. Security is valuable. In a family home when children feel a sense of security ( both mental and physical ) and are brought up well groomed with good nurturing, that’s when they develop a sense of respect for their providers (parents).We are dealing with humans. So, if we have an insensitive environment – that’s a reflection of what we have fed into the system. Do we know or care about what is the foundation of our constitution?. Does it translate our voice into rights it gives us on paper?.The common people are hardly aware of their fundamental rights or even the object behind the constitution. It is meant to be a manual for administration. I asked our maids if they knew about the “samvidhan” and they said “yes, neta logon ka kitab”. They did not know it is meant to be their tool to safeguard their rights!! Many educated people also remain unaware.
Don’t these so called administrators know that only about 7% people speak english. So, in these 60 years, have they made any effort for the common man to know what the samvidhan is all about?. Not even in their bhashans during elections !! So we need to be more concious of our rights and spread this awareness as one of the social cuases, corporates can pursue this as part of their corporate social responsibility.
If we have been party to accepting and/or reasoning it by chanting the good old mantra – “ we are going through the developmental process” - the same is soon becoming stale…isn’t it actually stinking already ?? Why is it that in a place like America, you have their citizens so involved and emotional about the presidential speeches?.As I see it, there is a sense of attachment with and pride of the nation – they value that. Ok, we value our heritage and weight of such old history…what else? Hello! We are just living in the past…blaming colonialism, nehrus etc etc still…
We also really need to hit at people’s heart to get unity and co-ordination, to see them satisfied with the progress.
Even in the case of terror on mumbai, its taj and oberoi hotels – it was the united and wounded voices that have appealed for this harmony – thank god! Somewhere we have not lost total sensitivity although terror attacks in delhi, jaipur, ahmedabad etc were not less scary. Did we feel so emotional about the parliament being attacked?. Frankly, many of us were wishing for a neat end of the occupants of that building, planned by rescue operation of …...
The politicians are sensitive to public opinion, for obvious reasons. So, lets use it positively. We the people should not be selfish and divided in condemning and taking stands. There should be loud and clear opinion of the people to whom the constitution really belongs, protects their fundamental rights, life and liberty. Today we have got it to a level of such frustration that the next level can only be a civil disobedience and rebellious flouting of laws/taking it in their hands by even the elite and privileged class because EVERYONE wants their home to be safe…
Now we can’t afford to let this be left to drawing room analysis and mere presciption of solutions over a drink. We need enough sustained inertia to mobilise the concerned authorities.
At this poignant event, let the indian government ( presently, a cemetry - of expired human resources ) decide whether they want to face international terror with the desired urgency and preparedness or face the nation and the natural civil disobedience in the offing !!
Suggested measures for a NEW PM- Diversification of portfolio required to deal with these issues
Disaster Management
Beggars & crime
Governance body – identifying issues and implementing solutions
Planning for foreseable crimes – war over internet, biological warfare.
pamsanghi@gmail.com
The Indian Intelligensia,
Friends, I dedicate the title of this article, to our political class who are patholigically incapable of owning mistakes which had disastrous consequences !!
For those who haven’t encountered this phrase, Illegitimi non carborundum is a mock-Latin aphorism jokingly taken to mean "don't let the bastards grind you down".
I know, this phrase originated during world war II and was used by a US Army general as his motto during the war. In the context of the horrifying carnage in mumbai, I could have used this title in a positive spirit to say that we must not fear and blah blah…but ironically, I can’t be sitting back and fooling myself when time and again it is clear that our own polity, wearing the mask of administrators, are our biggest enemies. Did you get that very apt sms saying “ Don’t be afraid of those who came by boat, be afraid of those who came by vote..” ?.
Visualising India
Volumes after dusty volumes would be written in the history of india about the repeated failures of our governance system ( the lack of it really…) and the unique absence of formula for setting up security for our citizens, having a workable criminal justice system !How many of us know that the criminal justice system does not work?.Unless under compelling circumstances or unless one has a malafide intent to accuse someone of criminal charges, would any of us actually choose to pursue a remedy in law with true faith in the criminal justice system and/or the enforcement agencies ??When majority of us are absolutely sure that the entire criminal justice system cannot provide real remedy, wouldn’t criminals ( small or hardened ) not know that ? And then they make mickey out of the existing authorities.
Apparent questions and obvious answers
If the states cannot enforce law and order then shouldn’t there be any system of giving power to the centre?,
what about accountability? ,
Shouldn’t certain laws relating to crime and security be centralized?,
Do we need to review crimes that should not be bailable anymore?,
In light of this, review interpretation of entries in the state and concurrent list of the constitution ?.
Rude awakening to real issues at hand
Creating communal divide by political parties is showing remarkably successful results!!.
Isn’t it threatening the security of the state and therefore ought to be declared / defined as a crime ?.
When it suits the government, for the sake of enlarging their vot bank, they can make some very stringent laws. For eg; Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989.
Why is calling a SCST “chamar” made a crime in law and enforced by this special draconian Act ?.
How reliable is our legal system ?.
In our country, the legal route is chosen by many to let the issue whither away and die a slow and prolonged death. Its not just the law but also the enforcement agencies involved along the chain who contribute to this. Laws drafted and are a obvious failure need to be reviewed in this situation so that they are enforceable and executable AND on the other hand enforcement agencies should respect the law and be accountable for lapses.
When we are faced with this pathetically frustrating system we realize that we are thE poor common man suffering – till it does not happen to us we don’t speak up !! and we see how, despite a justice system, the poor common man puts the blame on his destiny when he encounters a bad officer or a judge. Why isn’t he more confident of getting the result which the law provides ? isn’t it always a mystery and left to the hands of the lawyer, officer and judge he has to deal with?. When good officers and judges simply do their duty they are looked at as heroes. But since they are rare to find, yes they are heroes.
Just making laws does not help !! For instance, arguing whether POTA should be there or not is of no consequence.
Stepping ahead towards a new century
How will there be enforcement of criminal laws?
There are 3 types of evidence which are allowed to be admissible –1. Eye witnesses2. Direct evidence3. circumstantial evidence which can be traced back to chain of events.
Enforcement should be done with a known formula. It should envisage the result to be achieved, keeping realities in mind. Thus, what is a real solution should be known alongwith the length of time it “should” take to be achieved so that –• Eye witness can be used effectively and efficiently• Judges do not keep changing and delaying the prosecution • The rules of evidence are given EFFECT to.• There should be fall back options for difficulties known that could hamper enforcement – how to counter the same ( instead of giving excuses and playing blame game later ).
According to Common Wealth Human Rights initiative director Maja Daruwala: “This time it was Taj and terrorists. But on a daily basis, how many people in Delhi alone get murdered, maimed, robbed and raped ? Is the police able to prevent and investigate such cases and come to a quick solution?. The fact is that ordinary security is not available. Had supreme court directives on police reforms been obeyed, they would have removed police from political control, giving it operational responsibility.”
We need to move on to help us survive and sustain in today’s times. People will bend towards real development, even if its through the hands of corrupt politicians. And real development means having a comfortable environment first. When the foundation and political will to progress in every way is strong, other requirements of law and order etc will also fall in place. If the system is dependable, people will respect the system and be more law abiding. The same indians transform overnight when they travel abroad. Don’t we feel its easier to commute and deal with the system in a FOREIGN country – then don’t we respect their laws?. How have they effectuated this?. Look at the development in a country like Malaysia – reputed to be muslim dominated, having a corrupt political system …somewhere there needs to be Honest “political will” to change for the better.
sharing vision – going to the root of the matter
Integrity in the nation will come when we value what we possess. Security is valuable. In a family home when children feel a sense of security ( both mental and physical ) and are brought up well groomed with good nurturing, that’s when they develop a sense of respect for their providers (parents).We are dealing with humans. So, if we have an insensitive environment – that’s a reflection of what we have fed into the system. Do we know or care about what is the foundation of our constitution?. Does it translate our voice into rights it gives us on paper?.The common people are hardly aware of their fundamental rights or even the object behind the constitution. It is meant to be a manual for administration. I asked our maids if they knew about the “samvidhan” and they said “yes, neta logon ka kitab”. They did not know it is meant to be their tool to safeguard their rights!! Many educated people also remain unaware.
Don’t these so called administrators know that only about 7% people speak english. So, in these 60 years, have they made any effort for the common man to know what the samvidhan is all about?. Not even in their bhashans during elections !! So we need to be more concious of our rights and spread this awareness as one of the social cuases, corporates can pursue this as part of their corporate social responsibility.
If we have been party to accepting and/or reasoning it by chanting the good old mantra – “ we are going through the developmental process” - the same is soon becoming stale…isn’t it actually stinking already ?? Why is it that in a place like America, you have their citizens so involved and emotional about the presidential speeches?.As I see it, there is a sense of attachment with and pride of the nation – they value that. Ok, we value our heritage and weight of such old history…what else? Hello! We are just living in the past…blaming colonialism, nehrus etc etc still…
We also really need to hit at people’s heart to get unity and co-ordination, to see them satisfied with the progress.
Even in the case of terror on mumbai, its taj and oberoi hotels – it was the united and wounded voices that have appealed for this harmony – thank god! Somewhere we have not lost total sensitivity although terror attacks in delhi, jaipur, ahmedabad etc were not less scary. Did we feel so emotional about the parliament being attacked?. Frankly, many of us were wishing for a neat end of the occupants of that building, planned by rescue operation of …...
The politicians are sensitive to public opinion, for obvious reasons. So, lets use it positively. We the people should not be selfish and divided in condemning and taking stands. There should be loud and clear opinion of the people to whom the constitution really belongs, protects their fundamental rights, life and liberty. Today we have got it to a level of such frustration that the next level can only be a civil disobedience and rebellious flouting of laws/taking it in their hands by even the elite and privileged class because EVERYONE wants their home to be safe…
Now we can’t afford to let this be left to drawing room analysis and mere presciption of solutions over a drink. We need enough sustained inertia to mobilise the concerned authorities.
At this poignant event, let the indian government ( presently, a cemetry - of expired human resources ) decide whether they want to face international terror with the desired urgency and preparedness or face the nation and the natural civil disobedience in the offing !!
Suggested measures for a NEW PM- Diversification of portfolio required to deal with these issues
Disaster Management
Beggars & crime
Governance body – identifying issues and implementing solutions
Planning for foreseable crimes – war over internet, biological warfare.
pamsanghi@gmail.com
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