TDSAT hearing on ad cap to continue tomorrow

NEW DELHI: The News Broadcasters Association (NBA) contended before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) that the Telecom Regulatory Authority of India (TRAI) did not have powers to regulate advertisements since there was no provision in law giving it the power to deal with content.

Commencing his arguments in the long-delayed petitions challenging the 12 minute ad cap sought to be imported by TRAI, senior counsel Abhishek Manu Singhvi told TDSAT chairman Justice Aftab Alam and member Kuldip Singh that the powers of TRAI with regard to broadcasting other than standards of quality were only recommendatory and it could not make regulations or pass implementable orders.


Furthermore, neither the TRAI Act nor the Indian Telegraph Act 1985 under which it functioned gave powers to TRAI to deal with content.

He said that Section 2(G) of the Cable Television Networks (Regulations) Act 1995 was clear that advertisements fell under content.

The hearing, which commenced today, will continue on a day-to-day basis. The main petitioners are the NBA and TV9. TDSAT had in the previous hearing (31 October) disallowed interventions by some broadcasters that included Viacom 18, Star India and Zee TV.

At the outset, Singhvi also contended that the Supreme Court had itself held that advertisements were the cornerstone of free speech and economy since they gave the financial clout to enable free speech. The apex court had also said that anything curbing the ‘financial spine’ is an inroad into the freedom granted by Article 19(1)(a) of freedom of speech and expression. He said there could not be talk of free speech and expression without talking of the financial spine behind this.

He said that while broadcasting was brought under the ambit of TRAI in January 2000, it was only on 9 January 2004 that an empowering notification was brought in with regard to broadcasting, but it only gave the Authority powers to make recommendations and not pass regulations.  

TRAI on 22 March 2013 passed a notification with regard to advertisements, he added.

The implementation with regard to content lay with the Information and Broadcasting Ministry which could do so under the 1995 Act. TRAI only had powers with regard to licensing and quality of service.

At this stage, Justice Alam wondered if granting of license also included abiding by the rules under which the license was issued and this covered both the Broadcast and Advertising Codes.

Singhvi said that in any case, the Uplinking and Downlinking Guidelines only referred to giving permission and not licenses. License had not been defined under the Guidelines.

Senior TRAI counsel Rakesh Dwivedi interjected to say that the Uplinking and and Downlinking Guidelines were clear that the Broadcast and Advertising Codes had to be adhered to, adding that this had not been challenged by anyone.

However, Singhvi said that the Codes were only mentioned under the Cable TV Networks Rules 1994. He said the Rules were brought in when the Cable TV Networks (Regulation) Ordinance was brought in 1994, which was subsequently replaced by the Act of 1995.

Singhvi said that it could also not be said that advertisements were per se bad or pervasive as they could be very creative, adding that the only all pervasive instrument was the remote control.

At this stage, Justice Alam expressed the view that advertisements could be very annoying when one was watching a serious programme.

Singhvi said both the programmes and the advertisements were the lifeblood of the TV channels. He also added that there was no need to interfere as long as the advertisements did not make any incursions into Article 19(2) of the Constitution (which refers to reasonable restrictions on Fundamental Rights).

In any case, TRAI could not arrogate to itself the power to regulate advertisements and content which fell in the domain of the union of India.

He admitted that section 11(2) of the Telegraph Act said TRAI could perform such duties as were assigned to it by the government, but said regulating content had never formed part of this.

In any case, he said a major part of the powers of TRAI were derived from the TRAI Act or the Indian Telegraph Act which related to telecom and not broadcasting. These powers generally related to quality of service.

The legislature never thought it fit to pass a law giving powers relating to content to TRAI, he added.

At another stage, the judge also wondered if the 1995 Act which applied to cable TV could be extended to broadcasters.

Singhvi said that no broadcaster could transmit his signals without resorting to either the 1995 Act or the Uplinking and Downlinking Guidelines.

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