INDEPENDENT NEWSPAPERS CORPORATION (PVT) LTD vs FEDERATION OF PAKISTAN Ss

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INDEPENDENT NEWSPAPERS CORPORATION (PVT) LTD VS FEDERATION OF PAKISTAN Ss. 23, 39 & 2(1)---Pakistan electronic Media Regulatory Authority Rules, 2009, Rr. 13(3) & 13(4)---Pakistan electronic Media Regulatory Authority (Eligibility Criteria and Bidding Procedure for Direct to Home (DTH) Distribution Service Licensing) Regulations, 2016, Reglns. 2.11 & 3.23---Constitution of Pakistan, Art. 199---Vires of Rr.13(3) & 13(4), Pakistan electronic Media Regulatory Authority Rules, 2009 and Reglns. 2.11 & 2.23 of Pakistan electronic Media Regulatory Authority (Eligibility Criteria and Bidding Procedure for Direct to Home (DTH) Distribution Service Licensing) Regulations, 2016---Media ownership concentration and exclusion of monopolies---Legislative intent, nature and scope ofS. 23 of the Pakistan electronic Media Regulatory Authority Ordinance, 2002---Rules/delegated legislation cannot go beyond the statute---Role of PEMRA as a frontline regulator---Scope---Petitioner challenged the legality of Rr.13(3) & 13(4) of the Pakistan electronic Media Regulatory Authority Rules, 2009 and Reglns. 2.11 & 3.23 of the PEMRA (Eligibility Criteria and Bidding Procedure for Direct to Home (DTH) Distribution Service Licensing) Regulations, 2016; on the ground, inter alia, that the same went beyond the scope of S. 23 read with S. 39 of the Pakistan electronic Media Regulatory Authority Ordinance, 2002---Validity---Impugned Rules and Regulations ousted broadcast media licence owners from owning, controlling or operating distribution service licence and vice versa, meaning thereby that it totally prohibited "vertical integration"---Scope of S.23(2) of the Pakistan electronic Media Regulatory Authority Ordinance, 2002 was to provide PEMRA with its regulatory objectives so that it could regulate the electronic media and achieve its stated purpose which was diversity and plurality in content---To accomplish said stated purpose, maximum participation of stakeholders was required for grant of a licence---Section 23 of Pakistan electronic Media Regulatory Authority Ordinance, 2002, did not envision any prohibition on broadcast media operating distribution services or vice versa but to the contrary it required all media enterprises to compete in the media market with each other and with new media entities---Intent of S.23(2) of the Pakistan electronic Media Regulatory Authority Ordinance, 2002 was for PEMRA to ensure that ownership conglomerates were not formed given that the regulatory objective was to prevent undue concentration of media ownership in a given market---Use of the word "and" in S.23(2) ofthe Pakistan electronic Media Regulatory Authority Ordinance, 2002 separated two distinct regulatory objectives being "fair competition and prevention of undue concentration"; and whether the said word "and" was read disjunctively or conjunctively, it would not change the intent of the law--- Pakistan electronic Media Regulatory Authority (PEMRA) was required to regulate vertical integration of all media enterprises so that they did not form concentrated ownership and under S.23(2) of the Pakistan electronic Media Regulatory Authority Ordinance, 2002; Legislature delegated the authority to PEMRA to define the circumstances, which could cause such undue concentration in any market and PEMRA could set out a regulatory environment within which the Legislature's intent was effectuated---Pakistan electronic Media Regulatory Authority, in the present case, defined such circumstances to mean a total restriction on vertical integration between broadcast media and distribution services which restriction was based on the presumption that any vertical integration between broadcast media and distribution services would result in undue concentration of ownership---Section 23(2) of the Pakistan electronic Media Regulatory Authority Ordinance, 2002 did not mandate such an ouster or restriction and required ownership concentration to be regulated so that it did not become undue, meaning thereby that some element of concentration was permissible---Impugned Rules and Regulations were enacted by PEMRA without setting any standards or thresholds on the basis ofwhich it could measure, monitor or control media ownership---Effect of the impugned Rules and Regulations was that by restricting two specific media enterprises from vertically integrating and allowing other media enterprises to vertically integrate, undue concentration of media ownership was left unregulated because it was seen only in the context of integration between broadcast media and distribution services and not in the context of the relevant market, which was illogical and is not in furtherance of the objectives or purpose of the law---High Court observed that S.23(2) of the Pakistan electronic Media Regulatory Authority Ordinance, 2002 did not leave it open to PEMRA to set out a new regulatory authority but instead required it to work within the confines of the prescribed objectives and in the present case, PEMRA abdicated from its functions as a regulator and instead transgressed into the domain of the Legislature, which is not permissible---High Court further observed that if the intent of the law was to prohibit vertical integration it would not have required PEMRA to define the circumstances, which created undue concentration of ownership and the Legislature would have prescribed the restriction in the stated section---High Court held that Rr.13(3) & 13(4) of the Pakistan electronic Media Regulatory Authority Rules, 2009 and Reglns. 2.11 & 3.23 of the PEMRA (Eligibility Criteria and Bidding Procedure for Direct to Home (DTH) Distribution Service Licensing) Regulations, 2016 were enacted without lawful authority and were struck down---Constitutional petition was allowed, accordingly.

INDEPENDENT NEWSPAPERS CORPORATION (PVT) LTD vs FEDERATION OF PAKISTAN Ss — 2017 PLD 289 LAHORE-HIGH-COURT-LAHORE

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