MUMBAI: The Central government must have been hoping that the courts would deliver a ruling on conditional access that would enable it to do what it had abjectly failed to do thus far - enforce CAS in recalcitrant cities like Mumbai.

In the event, a two-judge division bench of the Mumbai High Court headed by Chief Justice CL Thakker still left it to the government "to do or not to do" on whether CAS should be enforced in Mumbai or not.

While indiantelevision.com is still awaiting a final copy of the judges' order, the legal interpretation appears to be that the court is not coming in the way of the implementation of CAS. The court has clearly said though that no interim order will be passed either for or against CAS. Therefore, by extension what it means is that CAS is in force as per the latest government notification

This is significant because the ten-day grace period for CAS implementation that had been granted in Mumbai on account of the Ganesh Chaturthi festival ends today. As per the original schedule, Zone 1 in Mumbai, Kolkata and the whole of Chennai were to become CAS-delivered from 1 September.

In effect, this means that the MSOs are technically well within their legal rights to enforce CAS in the designated Zone 1 area of south Mumbai. And if the government were to abide by its own notification, it would mean that the MSOs were in fact liable for prosecution if they did not black out all pay channels not delivered through a set top box.

Of course there is the "small matter" of the Shiv Sena being opposed "tooth and claw" to CAS at this juncture so whether anyone is willing to take on the tiger is the moot point.

NEXT HEARING OF CABLE CASE IN JANUARY
Coming back to the High Court ruling, around eight petitions that were clubbed together under the "cable case" were heard today. The High Court bench, after listening to arguments from all sides, proclaimed that the various petitions will be heard in January 2004.

The court has admitted all the petitions; but proposed to take its time to hear the various arguments. Sources say that the court didn't want to pass any ruling at this stage because the process of CAS rollout is currently on and the situation is still unclear.

Today, the government's counsel and additional solicitor-general of Maharashtra SB Jaisinghani proclaimed in the court that the Central government has merely given an extension of 10 days to Mumbai's cable trade due to Ganesh Chaturthi. As far as the Central government is concerned, the government lawyer specified that CAS is already on in the notified areas of Mumbai.

The lawyers representing the multi-system operators (MSO) claimed that their clients have invested a lot of money on setting up infrastructure for the conditional access system (CAS). "The court admitted all the petitions and refused to stay the implementation of CAS in the city," says Janak Dwarkadas who represents Hinduja MSO INCableNet.

NGO Consumer Action Network (CAN) president advocate Ahmad M Abdi says: "I raised this point about the fact the CAS rollout is restricted to south Mumbai. There is no protection for the cable consumers in other zones who are being discriminated against."

BJP member of parliament Kirit Somaiya's lawyer Chaitanya Dhruve Mehta said that his client's stand has been validated because the government has gone ahead with CAS implementation. "All the petitions have been admitted and the court has decided to stand by the Central government's decision to go ahead with CAS. Post CAS, consumers will have to pay for whatever they choose to see. The minimum rate for watching free-to-air channels and certain top pay channels will be less than Rs 150 per month," adds Mehta.

CAN president Abdi adds: "The recent amendments to the Cable TV (Regulation) Networks Act 1995 state that errant cable operators violating the provisions of the act are liable for prosecution as the same has been declared cognisable offences; wherein the local police may initiate appropriate action against the errant cable operator."

Some cable operators have taken the judgment to mean that they are no longer bound by the earlier injunction on their raising rates before CAS was rolled out.

Till the copy of the order is in hand though, what all this exactly means will have to wait.