a part of the ORDER .......... clearing doubts about the Dishtv Sun deal.... Is it real or Sham?
.........The learned Senior Counsel appearing for the respondent tried to argue that they were offering all the channels as a package. However, he was unable to re**** the above averment in their affidavit nor was he able to point out anything in the pleadings to suggest that all their channels were part of a package and were not being offered on a-la-carte basis. Thus, at least at this stage we are unable to accept the contention of the respondent that the petitioner has to accept all the channels of the respondent as a package. The respondents relied on alleged agreement entered into with Dish TV in November, 2006 to say that they had offered all the said channels to the said DTH operator as a bouquet. In response to this averment, the learned counsel for the petitioner submitted that the said agreement appears to be sham, particularly, for the reason that till today even though about four months have elapsed, Dish TV is not showing any of the channels of the respondent except one or two channels which viewers of Dish T.V. are able to see because they become available on DD’s Free-to-Air channels network and as both parties i.e. DD and Dish TV are using the same transponder.
At this stage it is difficult to say whether the alleged agreement of the respondent with Dish TV is real or sham. However, we cannot lose sight of the fact that the argument that Dish TV is still not showing any of the channels of respondent inspite of alleged agreement of November, 2006, has not been controverted by the counsel appearing for the respondent. Therefore, for present purposes we can take it as correct that Dish TV is not showing any of the respondent’s channels on its DTH platform. This casts a doubt about the argument that another DTH operator i.e. Dish TV has taken the entire bouquet of respondent.
The learned counsel for the respondent also argued that the petitioner is carrying bouquets of channels of other broadcasters and therefore, petitioner should have channels of respondent also in bouquet only. In our view, this argument is totally misconceived. The arrangement of the petitioner with each distributor is a matter of negotiation between the parties and whatever may be the arrangement with a particular party it cannot be said that same arrangement has to be with another party. Moreover, the respondent has not given any concrete instance in this behalf except making a bald statement. The respondent is offering its channels on a-la-carte basis as per affidavit quoted above, which leaves no scope for such an argument. This argument is therefore, rejected
The whole order can be read in the TDSAT website.