Arguments on feed share inconclusive

Uncertainty looms on the live telecast of the third India-Sri Lanka match, as arguments on Nimbus' petition seeking quashing of the Sports Broadcast Signal Ordinance 2007 remained inconclusive in the Delhi high court.

A Bench, comprising Justice Vikramjeet Sen and Justice J P Singh, did not pass any order on whether or not to stay the Ordinance that makes it mandatory for private sports broadcasters to share feed of important sporting events with the public broadcaster.

Posting the matter for hearing on February 15, the Bench said: "We are saying nothing on this."

Appearing for Nimbus, senior advocate Harish Salve raised questions over Section 3 of the Ordinance, which says that no television broadcaster shall carry live telecast of the cricket matches unless it shares live feed with Prasar Bharati.

Salve contended that Article 19 (1)(a) which talks of freedom of speech and expression also includes telecasters' rights to educate, inform and entertain its viewers.

Ridiculing the clause, Salve said one day Prasar Bharati would say that news of national importance cannot be broadcast unless it is shared with it.

Referring to Section 6 (2) of the ordinance, which says that no judicial order would supersede it, Salve questioned how the government can say that no legal proceedings shall continue.

"You (government) cannot tell the court that you can't pass any order. Courts can't be told that don't maintain petition."

Justifying its stand to bring the Ordinance, Additional Solicitor General P P Malhotra said the Ordinance has been brought to protect the interest of general public as it is their right to be educated, informed and entertained enshrined under Article 19(1)(a).

Right to telecast includes right of the citizens who are entitled to be informed and entertained which can't be taken away, the ASG said.

Malhotra contended that they (Nimbus) entered into an agreement with BCCI despite knowing that the uplinking guidelines was very much in place since December 2, 2005.

He further said that airwaves are public property, which should be controlled by public authority. This is what we have done as per the apex court's order. The ordinance has validated all actions taken under the guidelines.

Defending the clause which talks of sharing live feed with Prasar Bharati, the government said it has exclusive right to grant license on certain terms and conditions.

The government also defended the clause of the ordinance, which seeks to supersede the judicial order, with the ASG explaining that the guideline is deemed to have come into effect from November 11, 2005.

"They were law on this day."

Prasar Bharati's counsel Dushyant Dave said that at the time of receiving bidding applications for award of contract, the BCCI had clearly said that media rights holder/owner will have to share simultaneous live feed with Prasar Bharati which was later ostensibly changed.

Dave also said that Nimbus had provided live feed to the public broadcaster during India-New Zealand match during March-April last year, which Nimbus is now claiming that the arrangement was for one series only.

Nimbus Communications also challenged the Sports Broadcast Signal Ordinance 2007, which makes it mandatory for private broadcasters to share live feed of matches of national and international importance with Prasar Bharati.

Nimbus, which has exclusive telecast rights for the cricket matches, is seeking quashing of the Ordinance on the ground that its jurisdiction can be exercised across the country. If it has trans-border impact, then it would be without the authority of law and cannot be enforced.

The sports broadcaster also contended that the Ordinance was violative of its intellectual property rights and fundamental rights under Article 19 (1)(a) of the Constitution, guaranteeing freedom of speech and expression.

Referring to Section 6 of the Ordinance, the channel said any declaration which overruled the order passed by the court was illegal and null and void.

The channel had accused Prasar Bharati of promoting its commercial interests under the garb of public interest. It is also contended by Nimbus that the constitution of a committee, which would look into the encryption of signals, by the government was a clear admission that there was a lacunae in the Ordinance.