MUMBAI: The hearings on TRAI’s proposed 12 minute ad cap regulation by the Telecom Disputes Settlement Appellate Tribunal (TDSAT) that began yesterday look unlikely to get over in a hurry. For the past two days it is the News Broadcasters Association (NBA) which has been presenting its case to the tribunal. Today, the NBA counsel raised the point that the TRAI had not fulfilled the laying requirements to the parliament as per section 37 of the TRAI Act which says that “the Regulations made by the TRAI have to be placed before the Parliament to seek its approval. Thus, there can be no dispute that the regulations framed by the TRAI have the force of law having been made through the process of subordinate legislation provided they are consistent with the Act and Rules.”

Any law infringing the fundamental rights of the people needs to be laid before the parliament after which it can be either annulled or amended or approved by the parliament, says a counsel. A senior broadcaster who has been following the case closely says, “If anything is a law then it has to be passed by the legislature.”
    

Therefore, the NBA said that TRAI is crossing its line by enforcing the ad cap and prosecuting channels that aren’t following it. TDSAT Justice Aftab Alam wanted to know from TRAI if they had laid it before parliament as it’s an issue that should have been dealt in the preliminary stages itself to which TRAI did not have a substantial reply.

In yesterday’s hearing, one of the points put forth by the NBA counsel was section 2(G) of The Cable Act of 1995 according to which advertisements are a part of content. At this, TDSAT wondered how a broadcaster can come under this act. Counsel for NBA today validated the position under this act by stating that permission for uplinking falls under the Cable Act bringing broadcasters under this Act. It also says that channels adhere to the programme code.

Since the Cable Act comes under the jurisdiction of the Information and Broadcasting (I & B) ministry, broadcasters fall under the purview of the I & B ministry and not TRAI.

NBA also contended yesterday that TRAI does not have the authority to regulate content and its powers are restricted only to licensing and quality of service while content regulation falls under the ambit of the I & B ministry. Neither the TRAI Act nor the Indian Telegraph Act, under which TRAI works, gives the regulator the powers to deal with content.

The case will continue tomorrow post noon when NBA will put forth more points in front of the TDSAT.