2012 PLP 1436 (CLD)

MUHAMMAD FARRUKH IRFAN KHAN, J.

An advertisement to setup and operate cable TV network through bidding process in the area of City Daska and Union Council Nos.61-72 and 75-84 has been challenged in this writ petition on the grounds that the petitioner is already operating his cable TV network under the license issued under section 19 of the Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance, 2002 granted by the respondents No.1/Pakistan Electronic Media Regulatory Authority, Islamabad.

2. A reply was sought at pre-admission stage from the respondents in which the respondents have submitted that there is no cause of action to the petitioner as it is not one of the conditions of his license that no other license will be given in the aforesaid area and the grant of license to the petitioner cannot be considered as exclusive. The respondent's authority is lawfully empowered to grant license in the same category to other eligible persons for establishment and operation of terrestrial cable television transmission systems in the area covered by the petitioner. It is the responsibility of the respondent's authority to ensure that fair competition is facilitated and monopolies are excluded so that wider choice and compatible service is available to the public at large.

3. After having heard learned counsel for the parties and going through the record, it is noted that the license of the petitioner is granted under section 19 of the PEMRA Ordinance, 2002, which is reproduced for ease of reference as under:-- "

19. Licence to broadcast or operate. (1) The Authority shall have exclusive right to issue licences for the establishment and operation of all broadcast media and distribution services, provided that this exclusive right shall be used by the Authority in conformity with the principles of fairness and equity applied to all potential applicants for licences whose eligibility shall be based on prescribed criteria notified in advance and that this shall be done through an open, transparent bidding process. (2) .......................................................... (3) .......................................................... (4) The Authority shall have the power to determine number of licences to be issued in each category or sub-category and charge fees at such rates as the Authority may fix from time to time for the grant of a licence and for its annual renewal." (5) ..........................................................

4. The bare perusal of the above said provisions shows that authority will retain exclusive right to issue license and to determine the number of licenses to be issued in each category or sub-category. Moreover, section 23 of the law ibid rovides as follows:-- "

23. Exclusion of monopolies:-- (1) No person shall be entitled to the benefit of any monopoly or exclusively in the matter of broadcasting or the establishment and operation of broadcast [media or distribution service] or in the supply to, or purchase from, a national broadcaster' of air time, programmes or advertising material and all existing agreements and contracts to the extent of conferring a monopoly or containing an exclusively clause are, to be extent of exclusively, hereby declared to be inoperative and of no legal effect, (2) .......................................................... Thus it is embodied in the said legislation that monopoly or exclusivity of a particular person or company for the establishment and operation of broadcast media or distribution service is to be prevented.

5. The bare perusal of the petitioner's license, which is available at "Annexure-A", also reveals that the same is "non-exclusive" in nature.

6. Learned counsel for the petitioner has been unable to satisfy the Court that at any stage an exclusive right was given to the petitioner and has frankly conceded the point.

7. The scheme of the PEMRA Ordinance, 2002 is designed to provide license to the broadcaster not to be created as monopoly but with a view to provide maximum coverage of such service to the people of Pakistan in the most competitive and transparent manner depending upon the financial and organizational capability of a particular party for such distribution. This petition has therefore, miserably failed to raise any question of law where any rights of the petitioner have been tarnished or not adhered to by the respondents authority, resultantly, it is dismissed being not maintainable. Although it was a fit case for award of costs to the petitioner, however, in view of the candid admission of the learned counsel for the petitioner about the misconception of the petitioner in challenging the further grant of license, I am not making any order as to cost. The parties to bear their own costs. S.A.K./Z-7/L Petition dismissed.