ITV

Tag: Rakesh Dwivedi

  • TDSAT-Ad cap: TRAI done; amicus curiae takes over

    TDSAT-Ad cap: TRAI done; amicus curiae takes over

    MUMBAI: The Telecom Regulatory Authority of India (TRAI) finally wound up its arguments on 25 November on broadcasting advertising cap regulations. Speaking for the third consecutive day, TRAI counsel Rakesh Dwivedi elaborated on Article 14 of the Constitution that talks about the fundamental right to equality.

    His point was that all channels are at a par. Although free-to-air (FTA) channels don’t get subscription revenues like others, they are benefited in some other way and thus they should also be treated as those that receive payments. Dwivedi also submitted data alleging that channels had grossly (highly) violated the ad regulation.

    With that the TRAI concluded its side of arguments and the first Amicus Curiae took over. Madhavi Divan started with the history of television and brought up many points like how TV was licensed, a few judgements, the Cable TV Networks Act, the TRAI act, the convergence bill that never saw the light of day as well as the fact that there was a bill to establish an independent authority. She argued that broadcasting services fall under the TRAI Act because originally they were planning to bring it under an independent act, which never happened.

    She also stated that duration of advertisements does not come under content. She read out a few important points from a book that gave insight in to the setting up of TRAI, how cable operators came into existence and other details about the industry. The bench wanted to know from her who is the enforcer of violation of the duration of advertisements. Divan said she would be attending to that tomorrow.

    Once she concludes her arguments in a day or two, the second amicus – Aman Ahluwalia would speak on the subject.

    The ad cap issue hearing appears to be entering its last round. It is just a matter of time – some say within two to three weeks that TDSAT will be ready to announce its verdict.

  • TDSAT & Ad cap: TRAI continues arguments

    TDSAT & Ad cap: TRAI continues arguments

    MUMBAI: Continuing to present its side to the Telecom Disputes Settlement Appellate Tribunal (TDSAT), the Telecom Regulatory Authority of India (TRAI) put forth its arguments to the bench consisting of Justice Aftab Alam and member Kuldip Singh.

    It started off continuing on yesterday’s argument trail saying that the law does not state that if the laying requirements are not fulfilled then it becomes void. That is, TRAI cannot execute its regulation on channels. That broadcasters are covered by both the Cable TV Networks Act and the TRAI act is a parliamentary mandate and there is nothing illegal in what it is doing. There are several precedents where a subject matter could be covered by more than one statute,  TRAI counsel  Rakesh Dwivedi stated.
        

    TRAI also claimed that it has a clear parliamentary mandate exercised through the central government to regulate advertisements. It contested the broadcasters’ arguments that TRAI has just a recommendatory role, by highlighting that it has an additional function under section 11 (1) (a) of the TRAI  Act and that does not mean its plenary functions under section (11) (1) (b) are taken away. Therefore, apart from its recommendatory function under (a), its powers also remain under (b). Both the sub clauses complement each other and there is no clash, the counsel stated.

    Reiterating that it has the authority, it said that what it is aiming to do is in perfect accordance with the powers the ministry and it has under section 7 (11) of the Cable TV Act. Likewise, the counsel, said it is not as if the government is seeking to have a higher allowance for advertising air time and is in disagreement with the limit of 12 minutes that the TRAI is seeking to impose.

    To support its argument, the counsel also read out various preceding judgments. According to the TRAI, broadcasters are licensees under the Telegraph Act and so the regulator has full power to ensure compliance within the licence term.
    Singh asked if TRAI can direct Google on the duration and number of ads it can run. To this, the TRAI counsel replied by saying: ‘I am the regulator and I will decide who, when and how much to regulate.

    Coming to the point raised yesterday about a statement TRAI had made in 2004 that “there should not be any regulation at present on advertisement on both FTA and Pay channels” it said that much water had flown under the bridge since it made its statement and the situation was different today. So, it can deem it appropriate to regulate since an expert opinion at one point of time does not mean that it will stay forever, the counsel stated.

  • TDSAT hearing on ad cap to continue tomorrow

    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.