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The Lahore High Court (LHC) on Wednesday notified Pakistan Electronic Media Regulatory Authority (Pemra) that it had acted in violation of its own ordinance while conducting bidding for direct-to-home (DTH) licences last month, DawnNews reported.
The judgement, issued by a full bench headed by Justice Ayesha A. Malik, ruled in favour of broadcasters who had been barred from bidding on direct-to-home (DTH) licences held by Pemra, DawnNews reported.
While explaining the court's order, lawyer Asma Jahangir told Geo News: "The court ruled that sub-clause 3 of Article 13 of the Pemra Rules-2009 were against the Pemra Ordinance, 2002, and the Constitution."
Jahangir had represented the Independent Newspaper Corporation (INC), one of the plaintiffs, in the case.
Article 13(3) and (4) of Pemra Rules-2009, which the court objected to, states that, "A licensee who owns, controls or operates directly or indirectly any other distribution service licence shall not be granted a landing rights permission or broadcast media licence."
Jahangir was of the view that Pemra will now have to hold another auction as the previous one was held based on rules that LHC has now declared null.
However, when contacted, Pemra Chairman Absar Alam told Dawn.com that he has yet to see the 35-page judgement the LHC issued on Wednesday, therefore, he reserved his comments.
Court's judgement
In its order, the court stated: We are of the opinion that Section 23(2) of the Ordinance does not mandate any prohibition which would lead Pemra to conclude that it is authorised under the stated Section to oust broadcast media from distribution services and vice versa.
It further stated that the aforementioned section "is in consonance with the spirit of healthy competition and efficient economy".
It further said: "DTH Regulations have gone beyond the authorised mandate of Section 23(2) of the 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. Needless to mention that the Rules and DTH Regulations shall be made as per the intent of the Ordinance and not in conflict with the Ordinance.
Respondent's argument
According to the judgment, Pemra's counsel Salman Akram Raja argued that: "Pemra as the front line regulator has the power to restrict broadcast media license holders from operating distribution services which includes the DTH license in order to avoid undeo concentration of media ownership."
Keeping in view the Ordinance, it added, "Pemra deemed it necessary to broadcast media license holders from obtaining distribution licenses as the integration of the two media enterprises would lead to undue concentration of media ownership which in turn adversely affects diversity and plurality of content in the electronic media."
Previously on DTH licences
The LHC had stayed the DTH licence bidding process by Pemra till a decision was issued on petitions challenging Pemra rules about granting licences. The stay order had been issued on identical applications filed earlier by the INC and others .
However, Pemra had challenged the LHC stay order in the Supreme Court, which allowed the auction to take place but held that the bidding process undertaken would remain subject to a final determination by the high court.
"Let the bidding process, already fixed for Nov 23, be held and take place at the time and venue already fixed. It is however made clear that no final award of bidding or contract would be made by the petitioner (Pemra),” said the order dictated by a three-judge Supreme Court bench headed by Justice Mushir Alam.
Subsequently, Pemra held the auction of three licences for DTH programming on Nov 23 with pledged sums reaching Rs14.7 billion mark.
