LAHORE: The Lahore High Court (LHC) has brushed aside rules of the Pakistan Electronic Media Regulatory Authority (Pemra) with regard to eligibility and bidding procedure for Direct to Home (DTH) licensing, and ruled that a broadcaster can also be a distributor.
“We find that rule 13(3) and (4) of the rules along with regulation(s) 2.11 and 3.23 of the DTH Regulations have gone beyond the authorised mandate of section 23(2) of the Pemra Ordinance and are inconsistent with the intent of the ordinance, hence declared to be without lawful authority, of no legal effect and are hereby struck down,” observed a three-judge LHC bench in a verdict issued on Wednesday on a petition moved by the Independent Newspapers Corporation Pvt Ltd (Jang/Geo Media Group).
Justice Ayesha A. Malik headed the bench and its other members were Justice Abid Aziz Sheikh and Justice Shahid Karim.
The judgement authored by Justice Malik said Pemra misunderstood its regulatory functions and objectives of the law while putting a blanket restriction on media broadcasters to be in the distribution business.
Court allows petition of media house in DTH licence case
The verdict declared that the impugned restriction was based on a presumption that any vertical integration between broadcast media and distribution services would result in undue concentration of ownership.
“Section 23(2) of the Pemra ordinance does not contemplate or mandate an ouster or restriction,” the bench said, rejecting an argument of the authority’s counsel that in the Pakistani market larger channels were all competitors and if they were allowed to distribute each other’s content conflict of interest between media enterprises would arise.
It said the law was aimed at enhancing the free flow of information by increasing the participation of media enterprises.
The bench ruled that while creating a regulatory framework which was geared towards encouraging diversity and plurality the lawmaker did not oust any media enterprise from integrating with another media enterprise.
It observed that Pemra had not carried out the legislative intent by defining or identifying the circumstances but simply issued a blanket ouster in the rules without setting any standards or thresholds on the basis of which it could measure, monitor or control concentration of media ownership.
The bench said Pemra, without determining the balancing requirements of the local market, sought to rely on the debates emerging in international markets which dealt with concentration issues within their own systems and under their peculiar circumstances.
“The international literature relied upon does not conclude that vertical integration between broadcast and distribution [sectors] means undue concentration of ownership,” the verdict said.
Nothing was placed before the court in support of Pemra’s contention that if broadcasters were allowed to operate DTH licence they would cause undue concentration of media ownership, the ruling said.
It held that section 23(2) of the ordinance did not leave it open for Pemra to set out a new regulatory policy but instead required it to work within the confines of the prescribed objectives.
Allowing the petition, the bench observed that the rules and DTH regulations shall be made as per the intent of the ordinance and not in conflict with it. Asma Jahangir represented the petitioner while Advocate Salman Akram Raja argued on behalf of Pemra.
Published in Dawn, December 29th, 2016
