OTT Platforms, Netflix, Disney+, Hotstar, Prime Video
The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) recently said that over-the-top (OTT) platforms are not TV channels and prima facie, are outside the purview of Telecom Regulatory Authority of India Act (TRAI Act). [All India Digital Cable Federation vs Star India Pvt Ltd]
Chairperson Justice Dhirubhai Naranbhai Patel and member Subodh Kumar Gupta observed that prima facie, OTT platforms are not TV channels and do not require any permission or license from the Central government.
The Court was hearing a plea filed by All India Digital Cable Federation (AIDCF) against STAR India Pvt Ltd alleging that STAR’s act of streaming the ICC Cricket World Cup matches for free on mobile devices through Disney+ Hotstar was discriminatory in nature and violated TRAI guidelines.
It was contended that STAR was charging cable operators for broadcasting their channel, STAR Sports, whereas its Disney+ Hotstar app was availalble for download for free and it was allowing customers to view the matches for free.
Therefore, the petitioners sought a direction to restrain STAR from streaming the matches on the Disney+ Hotstar app or to provide the TV channel free of charge.
The petitioners contended that though OTT platforms are not mentioned in the definition in regulation 2(r) of “distribution platform”, the sub section should be read with other definitions.
They argued that the tribunal has all the powers, jurisdiction and authority to hear the matter and decide the same as STAR was using internet and, therefore, fell within the definition of Telegraph as defined under the Indian Telegraph Act.
The respondents argued that looking at regulation 2(r), OTT platforms were not covered as the definition was exhaustive.
They also informed the tribunal that TRAI has initiated a separate consultation process to determine whether OTT platforms should fall under the TRAI Act.
The respondents further highlighted that the petitioner has filed a writ petition before the Delhi High Court, where similar issues are being addressed and TRAI is a party to that case. However, in the current broadcasting petition, TRAI has not been included as a respondent.
They pointed out that OTT platforms do not require a license from the central government and are fundamentally distinct from TV channels. They argued that OTT platforms are regulated by the Information Technology Act of 2000 and the 2021 rules, rather than the TRAI Act of 1997 and its associated regulations.
After hearing the parties and considering the issues raised, the tribunal admitted the broadcasting petition.
However, as far as interim relief was concerned, the tribunal observed that, prima facie, OTT platforms are not covered by the definition of ‘distribution platform’ under regulation 2(r) of TRAI Regulations.
Furthermore, considering the provisions of the Information Technology Act and the corresponding rules framed in 2021, along with the provisions of the TRAI Act, the tribunal determined that there was no prima facie case with the petitioner.
It also noted that the balance of convenience was not in favor of this petitioner and no irreparable loss would be caused to the petitioner if the stay is not granted.
“It is always open for the petitioner to maintain separately a list of consumers who have subscribed to the Star Sports channel on the petitioner’s platform as the same contents are being made available through video streaming on the said OTT platform, thus no irreparable loss will be caused to the petitioner if the stay, as prayed for, is not granted,” the TDSAT said.
The tribunal thereafter directed the petitioner to file their rejoinder affidavit before the next date of hearing and adjourned the matter to December 18.
AIDCF was represented by Senior Advocate Meet Malhotra along with advocates Tushar Singh, Ravi S S Chauhan, Akshra Arshi, Pallak Singh and and Nikhil Sabri.
STAR was represented by Senior Advocates Mukul Rohatgi and Maninder Singh along with advocates Ruby Singh Ahuja, Sidharth Chopra, Swikriti Singhania, Ranjeet Singh Sidhu, Srishti Kumar, Kritika Sachdeva and Varun.
