TDSAT stays TRAIs action against ad cap

NEW DELHI: The Telecom Regulatory Authority of India (TRAI) has been left toothless by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). In an order passed today, the regulator has been forbidden from taking any ‘coercive action’ against news channels for not abiding by the agreement relating to ad cap.

The petition filed by the News Broadcasters Association (NBA) challenges the constitutional validity of the regulations of TRAI enforcing the ad cap. The petition has been listed for a hearing on 11 November and will be presided by TDSAT chairman Justice Aftab Alam and member Kuldip Singh.

The tribunal added that while the news channels will maintain weekly records of the advertising time per hour on a weekly basis, they will not be required to submit this to the regulator. Unlike the current practice, the records will only be submitted to TDSAT at the time of the hearing of the case.

Counsel A J Bhambani for the NBA said that a delegation of the Indian Broadcasting Foundation (IBF) had submitted a formula to the regulator but that did not preclude the broadcasters from challenging the validity of the regulations.

He also said that this was only a compromise reached between the broadcasters and the regulator and could not form the basis of penal action since it was not a regulation or legal provision.

Speaking after TRAI Counsel Saket Singh had presented his arguments, Bhambani said there were many members who were common to both the IBF and the NBA, and therefore the IBF had submitted a ‘proposal’ on 29 May 2013, which the TRAI accepted. But this could not be construed as a regulation.

But TRAI had begun prosecutions on the basis of this proposal and not on the basis of any law, he stressed.  He said that TRAI had in fact submitted on 11 June before TDSAT that no action would be taken.

Even otherwise, he said that TRAI was only empowered by its own act to make ‘recommendations’ on issues like advertisements and not bring about or enforce regulations and resort to prosecution.

When Singh sought to interrupt to say that 20 of the 24 members of NBA were following the formula, Bhambani pointed out that one news channel had recently been forced to retrench a large number of staff.

Earlier, Singh stressed that the proposal submitted by IBF had been worked out by a group that had the NBA president as one of its members.

He also stressed that action had been taken only against those broadcasters who had violated the agreed formula more than 20 times.

He said the proposal had made it clear that with effect from 29 May, the ad time per hour would not be more than 30 minutes. From 1 July, this would be reduced to 20 minutes per hour while GECs will cut this down to 16 minutes. This will be in force until 30 September, following which the 12-minute rule will be enforced from 1 October. TRAI had agreed as it felt this was the best way forward, Singh added.

However, Justice Alam said that the proposal could be treated as a law and acted upon for prosecution of television channels. Furthermore, it could not preclude the channels from challenging the constitutional validity of the regulations.

Referring to a point made by Singh, Justice Alam also said it would be unfair to ask for commitments from the channels when they were challenging the validity of the law and TRAI’s status quo in the matter. “This is arm-twisting,” he observed.

When Singh sought to stress that the channels were violating their own agreement, Justice Alam said “We feel we will test the constitutional validity of your order.”

He added that TDSAT felt that before taking any action against the channels, TRAI would have either informed the tribunal or at least given a warning to the channels.

Referring to Singh stressing that the GECs were abiding by the agreement, Justice Alam said there was need to draw a line between news channels and GECs.

Singh also proposed that TRAI would withdraw the complaints if the channels gave an undertaking before the tribunal about adherence.

Meanwhile, in its order yesterday on a mention by the NBA counsel, TDSAT said, “Even while the appeals are pending, 14 complaints have been filed by the TRAI against different broadcasters for violation of the standards of quality service (Duration of Advertisements in Television Channels) (Amendment) Regulations 2013 that came into force on 22 March 2013.”

TDSAT further noted that Singh had admitted that “Not only the complaints have been filed but as a matter of fact, cognizance was taken in those complaints at 2 p.m. today.”

TDSAT had listed the matter for today and observed, “In view of the fact that the validity of the regulation is under consideration before the tribunal and having regard to the manner in which the matter has been proceeding, we are somewhat surprised at the sudden and drastic action taken by the TRAI.”

“When we expressed our displeasure over the way the matter has been sought to be precipitated, Singh requested that the matter be taken up tomorrow at 2:30 p.m. so that he may get proper instructions in the matter.  We suggest that Singh should get instructions as to whether the TRAI is willing to withdraw the complaints filed during the pendency of the appeals before the tribunal or at least till an interim order is passed on the issue after hearing both sides.”

When the law was invoked by the authority in May 2012, it was disputed by television broadcasters which had also challenged the jurisdiction of TRAI in this regard before TDSAT.

With the news channels having obtained a stay from the TDSAT against any coercive action by TRAI, it remains to be seen how the IBF representing GECs will react and whether it will move TDSAT or any other court for similar stay.

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