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Friday, Dec 24, 2004

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ESPN moves Supreme Court against Kerala court order

By Our Legal Correspondent

NEW DELHI, DEC. 23. The sports channel, ESPN, today moved the Supreme Court challenging an interim order of the Kerala High Court directing it to telecast the three India-Bangladesh one-day cricket matches, being played in Bangladesh, through Doordarshan. The first match was played today and the remaining matches are to be played on December 26 and 27.

Acting on a writ petition, the High Court directed on Wednesday that the matches be telecast on Doordarshan and that the advertisement revenue be shared in the ratio of 80:20 between ESPN and Doordarshan.

The special leave petition is directed against this order. It is likely to be heard by a vacation Bench tomorrow.

ESPN said that the High Court order was contrary to law as it had failed to consider the legal submissions advanced by it.

In view of the provisions of the Telecom Regulatory Authority of India (TRAI) Act, the High Court could not have entertained the writ petition as the remedy should have been preferred before TRAI.

The High Court could not have substituted its own views to that of TRAI, entrusted with statutory powers to deal with issues pertaining to the broadcast and distribution of television channels. Further, in view of the provisions the Copyright Act, the High Court could not have directed the petitioner to part with its valuable intellectual property rights to Doordarshan.

It must be noted that TRAI had only recommended providing access to the public broadcaster (Doordarshan) for events such as cricket matches to be held in India and not outside the country. While so, it was not open to the High Court to pass a direction that exceeded even TRAI's recommendations and consequently trampled upon the intellectual property rights of the "rights holder."

ESPN submitted that it had been granted the rights for five years by the Bangladesh Cricket Board for a consideration of nearly Rs. 50 crores and giving the live telecast feed of matches to any other channel would infringe on its exclusivity. The order passed by the High Court would encourage cable operators to stop honouring their contracts with ESPN on the ground that the matches were being telecast on Doordarshan, which was free to air.

It would also have a debilitating effect on the business and revenue of the petitioner and consequently on ESPN-Star Sports, which is the rights holder.

"The petitioner while down-linking uses C-Band frequencies which do not require any licence from any authority," it said and sought quashing of the impugned order and an interim stay of its operation for the future matches as it would be put to hardship if the order was implemented.

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