Bombay HC order on NTO 2.0 will infringe on free speech, says IBDF in petition to SC
The Indian Broadcasting & Digital Foundation (IBDF) has urged the Supreme Court to overturn the recent Bombay High Court order dismissing the broadcasters’ petitions against the new tariff order (NTO) and subsequent changes, in addition to grant an ex parte suspension on the implementation of the amended tariff decree (NTO 2.0).
In its 1,137-page petition, the IBDF said the Bombay HC order was flawed and liable to be overturned. He also insisted that operationalizing NTO 2.0 would require broadcasters and distribution platforms to execute over 100,000 deals, and that it would be virtually impossible to reverse the effect of said change, just in case. where his appeal would end.
The foundation also argued that TRAI will not suffer any prejudice or hardship if a provisional suspension is granted. Therefore, the IBDF argued that the balance of convenience is in favor of the broadcasters as they risk greater inconvenience if the interim order is denied.
The biggest complaint the IBDF has against the Bombay HC ordinance is that it misinterpreted Section 19 (2) by applying an additional public interest requirement when it comes to interpreting the law. of a broadcaster to freedom of speech and expression under Article 19 (1) (a).
This, the IBDF said, will restrict broadcasters’ fundamental right to speech and expression and empower TRAI to micro-manage the broadcasting industry.
“This misinterpretation of one of the most sacrosanct and most consecrated fundamental rights permeates the entire reasoning of the High Court of the Honorable Bombay in the impugned ordinance, while dismissing the petitioners’ challenge to the contested amendments which have the effect of imposing unjustified restrictions on the exercise of the fundamental right of petitioners’ members to speak and express themselves and, in effect, to micromanage the functioning of the broadcasting industry ”, it reads in the IBDF petition.
The Bombay HC had observed that television broadcasting, being a means of expression allowing citizens to express their opinions and creativity, is an integral part of Article 19 (1) (a). He also said that since television broadcasting involves the use of airwaves which are public property, reasonable restrictions may be imposed even on grounds.
Challenging this observation, the IBDF said that reasonable restrictions on the grounds of the public interest are not one of the eight grounds mentioned in the constitution. He further stated that the Bombay HC ordinance created an untenable dichotomy in which the same speech, if communicated in a newspaper, would enjoy the full protection of Article 19 (1) (a), but if this newspaper were read on the airwaves, it would invite restrictions for reasons of public interest.
“Such an absurd result cannot be based on the text of the Constitution or on the substantial body of precedents of this honorable Court which delineates the contours of the fundamental right guaranteed by Article 19 (1) (a). On the contrary, to arrive at this conclusion, the High Court of Honor ignored several decisions of this Court of Honor, including decisions of various constitutional benches ”, indicates the petition.
The petition also pointed out the problem of the incorrect reading of the Supreme Court judgment in the Ministry of Information and Broadcasting (MIB) case against the Bengal Cricket Association (CAB). Relying on the SC judgment, the Bombay HC ordinance stated that freedom of speech and expression through a medium that involves the use of public property such as airwaves may be restricted or regulated for reasons of public interest.
The IBDF, however, pointed out that there is no judgment by SC to date, which recognized a restriction on the rights guaranteed under Article 19 (1) (a), for reasons other than the eight grounds specified in Article 19, paragraph 2.
“The fundamental error of reading the public interest as a valid consideration to regulate speech and expression led the High Court to uphold the power of TRAI to regulate the prices and terms of supply of television channels. , which is certainly a right guaranteed and protected by Article 19 (1) (a) of the Constitution, ”the petition states.
The IBDF also argued that the Bombay HC order is wrong in law because it fails to recognize and address the arbitrariness of TRAI’s actions in notifying changes to the NTO. “The disputed changes are essentially aimed at making substantial changes to the way the broadcasting industry operated less than 6 months after the implementation of the 2017 regulatory regime, which has yet to be fully tested, which in itself was a tectonic shift in pricing. and the supply of channels. “
The petition lists the main provisions of NTO 2.0 that will have an impact on the activities of broadcasters. These are as follows:
(i) When setting up channel packages, broadcasters must comply with the following conditions:
(a) The sum of the à la carte rates of pay-per-view channels (MRP) forming part of a package must in no case exceed one and a half times the price of the package of which these pay-TV channels are part. [thus, e.g., if the sum total of the individual (a-la-carte) rates of 10 channels offered by a broadcaster is Rs. 12, the said broadcaster cannot offer the said 10 channels as part of a package or bouquet, whose MRP is less than Rs. 12];
(b) The à la carte prices of each pay channel (MRP), which are part of a package, must in no case exceed three times the average price of a pay channel in the package of which this pay channel is part. [In the above example, the average rate of a channel is Rs. 1.2, and thus, a broadcaster does not have the freedom to put any channel into this bouquet offering whose MRP is more than Rs. 3.6].
(ii) The MRP of a channel must not be greater than the MRP of any bouquet containing that channel [In the above example, even though there is no restriction on fixation of the MRP of a channel offered only as à la carte, however, even if the broadcaster wishes to offer a channel priced at Rs. 13 (e.g., sports channel having premium content) as part of this bouquet which is priced at Rs. 12, he is prohibited from doing so and the consumer, in the event that he/she wishes to view it, will be forced to take the said channel only as an a-la-carte offering for Rs. 13/-].
(iii) The number of packages offered by broadcasters cannot be greater than the number of pay channels offered by a broadcaster. [In the above example, even though it is mathematically permissible for the Broadcaster to offer hundreds of permutations and combinations of such 10 channels, in the form of bouquets, however, the new regime restricts the broadcaster to form only 10 bouquets and no more].
(iv) Broadcasters cannot offer any incentives on the packages they offer to the DPO, while there is no such restriction for the DPO.
(v) TRAI lowered the MRP price cap for a channel from Rs. 19 to Rs. 12. Thus, in the event that a broadcaster prices their channel at a price above Rs. 12, it is forbidden to offer such a chain as part of a bouquet.[IntheexamplegivenabovetheMRPdubouquetnotmaynotexceedRs12[IntheexamplegivenabovetheMRPofthebouquetcannotexceedRs12[Dansl’exempledonnéci-dessusleMRPdubouquetnepeutpasdépasserRs12[IntheexamplegivenabovetheMRPofthebouquetcannotexceedRs12
“At this price, even if the broadcaster, which had priced its channel at Rs.19 for a year, would be ready to offer the same channel to the consumer as part of the package which has 9 other channels, all for Rs. 12 or least, the respondent has now outlawed the same, ”the IBDF said in its petition.
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