- Says executing service shall be tantamount to contempt of court
- Raises questions over functioning of PEMRA, observes Authority was being run illegally over years
A due-diligence report compiled by the legal adviser hired by the Pakistan Electronic Media Regulatory Authority (PEMRA) has termed the process to launch Direct to Home (DTH) services by the previous management as ‘illegal’, and asked the Authority to call fresh bids while keeping the already shortlisted applicant companies intact as per the new prescribed process.
After assuming the charge, newly-appointed PEMRA Chairman Absar Alam had initiated the process for legal due diligence to avoid anomalies, if any, in the postponed DTH process on December 17 last year.
The PEMRA had, in its 107th meeting held on December 4, decided to defer the DTH bidding to give new head Absar Alam reasonable time to fully understand the project, its criteria, procedures, guidelines and other important legal aspects.
The due diligence report (or legal opinion) – compiled by Justice (r) Ijaz, a copy of which is exclusively available with Pakistan Today – raises serious questions over the functioning of PEMRA over years, observing that the Authority had been running illegally and in violation of the rules since 2011.
“That in light of the various orders of the Hon’ble Supreme Court in CP 105/2012 and the recommendations of the Media Commission, the DTH licencing regime is unconstitutional and/or illegal, along with attracting consequences of contempt of court, etc. While, in fact, the Authority has not undertaken any steps, at its end, vis-a-vis the recommendations of the Media Commission,” details the report provided to the members of the Authority for their perusal.
The report also puts blame on the PML-N government’s handling of PEMRA affairs, stating that the appointment of Pervez Rathore as its acting chairman was also in violation of the rules.
“That appointment of Pervez Rathore was, prime facie, illegal, while even the so-called restoration by the Hon’ble Supreme Court was not upon merit and the previous orders of the Hon’ble Supreme Court were still in field,” the report reads.
The report also questions the so-called appointment of acting PEMRA chairman Kamaluddin Tipu, observing that how a member of the Authority could exercise powers of the chairman, despite the fact that he himself had applied for the post/position of chairman. It recommends scrapping the DTH process, since carrying it may attract consequences of contempt of court.
The report also blames the PEMRA for failing to curb illegal Indian DTH, and asks the Authority to pursue the matter with an “iron fist”, so as to change the hue of the market, from its current brown field status. In this regard, assistance of all agencies of the state may be considered.
The report asks the Authority to form an in-house committee of all wings of the PEMRA, to assist it for the conduct of an in-house technical due diligence on the report of the consultant and/or other policy areas, deemed necessary.
The report also requires the Authority to seek suitable amendments in the Rules of 2009 in order to prescribe all the relevant fees for DTH, calling for clarifying the number of channels and/or thematic channels, rather than ‘channel’ that the Authority may permit.
“In order to clarify the issue of international content for the DTH licencees, rather than just Pakistani content,” the report says, asking the Authority to accordingly reformulate and re-notify the DTH regulations, so as to strike a balance between ‘common value auction’ and ‘private value auction’, vide the ‘linkage principle’, in order, to be rid of the “winner’s curse” and simultaneously incorporate the “prestige factor”.
The report also urges the PEMRA to reformulate and re-issue the terms & conditions of the licence and also reformulate and publicly announce a tentative timeline for the proposed DTH licencing regime.
The Authority has also been asked to decide whether a proposal needs to be taken up with the federal government to seek suitable amendments in section 25 of the Ordinance of 2002 and also decide whether rule 13 of the Rules of 2009 requires any amendment.
“The Authority may consider the possibility of putting in place some sort of a safeguard and/or limitation vis-a-vis over the top services – a preliminary examination of the PEMRA law, discloses that a case may be made out, whereby the market in Pakistan, could possibly be regulated in this regard – if that were possible, the prospective DTH licencees, could part with phenomenal amounts for the licences”.
The report also asks the PEMRA to consider publishing the instant due-diligence report & legal opinion, subsequent to necessary amendments, in order, to allay any public fears.
IRREGULARITIES:
The report also raises questions over the hiring of an international legal consultant for DTH licencing regime.
It says, “That the manner in which the international consultant was hired is illegal and, therefore, amounts to mis-procurement. As such, considering the nature of the contract to be awarded, the appropriate procedure prescribed by law and suited to the said contractual services, was not followed/adopted. In fact, the PPRA laws do specifically bind the Authority.”
The report also says that the advertisement for hiring of international consultant was only published in one newspaper, while it is not clear from record whether the said advertisement was also published on the PPRA website.
“That ex-post facto approval regarding the contract to be executed between the Authority and the international consultant was illegal, including the changes therein, despite the fact that this was pointed out by the management on numerous occasions. In this respect the crucial marks to be awarded in the technical and financial sides too were changed,” adds the report.
The report also raises questions on the way the licencing matters were rushed by the acting chairman after the appointment of Absar Alam as the PEMRA chairman, noting that the matters were especially rushed along close to the appointment and/or assumption of office by the now incumbent chairman. “Un-due haste is the consistent theme of the DTH licencing regime,” the report concludes.