Detailed Proceeding Update-
The captioned matters were listed today i.e. 02.07.2018 before the Division Bench of Justice Sanjiv Khanna and Justice Chander Shekhar, Hon’ble Delhi High Court along with connected matters on the list being item no. 4 to 20.
The Ld. ASG Tushar Mehta opened arguments on behalf of the Respondent TRAI and at the outset stated that the Regulations in question by the Petitioners are valid on twofold grounds i.e. TRAI is competent to make Regulations on the present subject matter and that as alleged by the Petitioners, the Regulations have been made for the protection of a scarce resource i.e. Airwaves which is also a subject of a judgment of the Hon’ble Apex Court of India.
Ld. ASG Tushar Mehta stated that the provisions of the Cable Television Network Act (CTNA) would be in addition to other Acts in place such as the Consumer Protection Act and the Telecom Regulatory Authority of India (“TRAI”) Act. The Hon’ble Judge pointed that the other side’s argument to this point was that the particular amendment was made only to aid the digitization process and nowhere did it confer powers to TRAI to make Regulations on the impugned subject matter to which the Ld. Counsel stated that the scheme of the present Act is that TRAI and CTNA can coincide and coexist simultaneously. In a case there is a conflict between TRAI Act and CTNA, it is the provisions of the TRAI Act that will always prevail in the scheme brought out by the Central Government. The Ld. Sr. went onto state that while CTNA’s powers were initially confined to Operators except DTH, TRAI has powers to regulate all Operators including DTH Operators. The Ld. Sr. Counsel went on to state that TRAI has merely defined the meaning of a Clock Hour as envisaged in Rule 7(11) of the CTN Rules and all Broadcasters have to necessarily abide by the rules laid down by TRAI.
The Ld. Sr. then referred to the notifications passed by TRAI both dated 09.01.2004, one adding proviso stating that now all Broadcasting Services shall be covered under the TRAI Act read with Section 2(1)(k) of the amended Act and the other giving TRAI Recommendatory powers on Advertisement Capping. Thus, the Central Government never intended to notify such a notification and risk its powers being taken away by a reading of merely having recommendatory powers. The Ld. Sr. thereafter took the Hon’ble Judge through the notifications and Section 11 and firstly stated that none of the notifications or provision of Section 11 are under challenge. The Ld. Sr. then stated that TRAI is in fact in the particular matter relying on its powers to make recommendations as it via the Quality of Service Regulation governing capping of Ad time is merely enabling the implementation of the Rule and adding clarity to the same by introducing the definition of Clock Hour. The Ld. Sr. further stated that tomorrow if TRAI feels it needs to recommend that 12 minutes per hour is not satisfying some or all parameters, it may again recommend under recommendatory powers to change such time and the Central Government can choose to take the recommendation. Given that the legislation of Rule 7(11) is already in place, the Ld. Sr. felt that there is no fixation done by TRAI as the same has already been fixed by the Central Government.
The Hon’ble Judge while listening to the submissions made by the Ld. ASG stated that this interpretation is not what he thinks TRAI has in mind while enacting the above discussed amendments and passing the notifications as discussed in detail in the present matter. The Ld. Sr. stated that TRAI has consciously intervened to include DTH in its ambit and now it is competent to make all rules and it is applicable to all. Thus, he concluded the argument on the present subject matter by stating that the license would apply CTN through the amendments made under the TRAI Act and automatically apply to the Broadcasters such as the Petitioner by virtue of their license condition a sample of which was showcased to the Hon’ble Bench by the Respondents.
The Hon’ble Division Bench has ow listed the matter to 4th July, 2018 at 2:15 PM.