Brief historical background of TOR No. B
in Category Terms of Reference No. B
Brief historical background:
1. Unlike privately-owned print media such as newspapers and magazines, electronic media such as Radio and TV commenced their existence in Pakistan in 1947, and in 1968 respectively, as State-owned entities, entirely subject to Government control.
2. This pattern was established by the colonial British government for all areas of South Asia in general and not only for those areas which eventually became part of an independent Pakistan. Due to its ability to transcend the requirement of print literacy, Radio broadcasting was viewed by the occupying British power as a powerful instrument to influence public opinion and, if not Government-controlled, potentially disruptive of the stability required for the continuation of colonial rule.
3 Onwards of 1947, this colonial mind-set was inherited, without change, by the first, and by successive Governments in both Pakistan and India: It is notable that even in India, where there was no dictatorial military intervention into the political domain after Independence, All-India Radio and Doordarshan TV commenced as State-owned entities and remained monopolies controlled by the Government-of-the-day until about the mid-1990s when private TV channels and Radio stations began operations and were permitted to be established. State-owned electronic media continue to exist in India as of 2013.
4. In Pakistan, the first-ever attempt to permit a fully privately-owned FM Radio Station and TV channel system to be established was made during the second Government of Prime Minister Mohtarma Benazir Bhutto in the 1993-96 period. However, this attempt represented a blatant misuse of discretionary Executive power and violated all norms and principles of equity and transparency. On the basis of a summary moved by the Ministry of Information and Broadcasting in 1995, approval was afforded by the “competent authority” without inviting bids or tenders from the public or interested parties to one particular private party to establish and operate the first-ever FM radio channel and the first-ever private TV channel system (known as the Multi-Modal Distribution System, MMDS) in the country, on the basis of exclusivity and in perpetuity.
5. On learning of this unprecedented action that violated the fundamental rights of citizens to have fair and equal access to the air-waves, Javed Jabbar and Dr. Mubashir Hassan, as private citizens, submitted a Constitutional Petition under Article 184 (c) to the Supreme Court calling for a cancellation of this
discriminatory contract and requested the Court to direct the Federal Government to establish a system and a process by which licenses for private electronic media could be obtained by citizens through an open, transparent and fair process.
6. After listening to the Petitioner/s in person, and to the Legal Counsel of the Respondents, a Bench of the Supreme Court headed by the then-Chief Justice, Mr. Justice Sajjad Ali Shah admitted the Petition for regular hearing in May 1996. A total of three hearings were held on the Petition. The Hon’ble Court had rendered an initial opinion that the Petition raised important issues of public interest for the first time. The Petition was subsequently overtaken by events but remains pending in the Supreme Court for final disposal.
7. In November 1996, after the dismissal of the second Government of Prime Minister Mohtarma Benazir Bhutto, the Caretaker Government established by President Farooq Leghari and headed by Prime Minister Malik Meraj Khalid promulgated the Electronic Media Regulatory Authority Ordinance (EMRA) on 14th February, 1997. This represented the first-ever law in Pakistan which would enable all eligible citizens and entities to have equal opportunity to obtain licenses for private radio and TV channels.
8. However, the elected Government of Prime Minister Nawaz Sharif which took office in the second half of February 1997 did not convert the EMRA Ordinance into an Act of Parliament by 14th June, 1997 i.e. by the four months’ deadline under which an Ordinance, if not converted into an Act, automatically lapses. No similar legislation to replace the lapsed EMRA Ordinance was introduced by the Government up to its removal on 12th October, 1999.
9. A Citizens’ Media Commission of Pakistan was established in December 1997to conduct advocacy for the establishment of free and independent electronic media. The date on which the EMRA Ordinance was promulgated i.e. 14th February was observed in 1998 and 1999 as “Electronic Media Freedom Day”. The Commission also conducted a number of activities across Pakistan to mobilize public support and to pressurize the Government to introduce private electronic media.
10. The military-led Government of General Pervez Musharraf commenced its tenure with a pledge to introduce private radio and TV stations in Pakistan. During the year 2000, the original EMRA Ordinance was circulated for public opinion and, with some major and minor amendments, was approved, in principle, by the Cabinet on two occasions in 2000 under a new title of “Regulatory Authority for Media Broadcast Organizations (RAMBO) Ordinance”.
11. However, this version was not formally promulgated.
12. Eventually, in March 2002, with a new title i.e. “Pakistan Electronic Media Regulatory Authority Ordinance (PEMRA)”, the Government promulgated the law that remains in force as of May 2013. The original Ordinance was amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007 (Act No.II of 2007).
Major and minor changes in laws 1997 & 2002/2007
13. Whereas the original EMRA Ordinance of 1997 contained 20 Clauses, the PEMRA Act, 2007 contains 40 Clauses. 21 new definitions were added in the Preliminary section, three previous definitions were amended. Several of the new Clauses in 2002/2007 had been included in the 2000 version and other new clauses also appropriately took note of new technological developments since 1997, and also reflected changed objective conditions.
14. The interim draft law known as the RAMBO Ordinance, 2000 had already incorporated some positive improvements and amplifications of some provisions contained in the original EMRA Ordinance, 1997. In some functional and explanatory respects, the PEMRA laws, 2002/2007 aptly improved and explained certain operational aspects to reduce the scope for misinterpretation.
15. However, the PEMRA laws/Rules as of 2007/2013 have certain fundamentally different provisions from the original EMRA Ordinance of 1997. While the previous law also reflected the dominant role of the Federal Government in constituting and overseeing the Authority, the PEMRA law 2002/2007 expands the role, presence and potentially coercive powers of the Federal Government over PEMRA. This dimension weakens, if not completely erodes the capacity of PEMRA to be an authentically independent body.
16. Some of the major changes, for the worse, made in the original EMRA law as presently reflected by the PEMRA law of 2002/2007 are as follows:-
(i) Whereas the EMRA Ordinance, 1997 in Clause 4 (2) stated: “the Chairman of the Authority shall be a retired Judge of the Supreme Court of Pakistan”, the PEMRA law 2002/2007 in Clause 6 (2) states: “The Chairman of the Authority shall be an eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics, or law”.
(ii) On the face of it, apart from substituting the desired background of impartiality which is normally associated with a Judge of the superior Court. While it should be noted that individuals of integrity and impartiality can also belong to sectors other than the Judiciary. The new provision theoretically calls for a Chairman whose professional credentials and reputation possess relevant and positive attributes.
(iii) In actual practice, however, from its inception in 2002 to date in 2013, a period of 11 years, PEMRA has had five Chairmen who have almost always been directly associated with the Federal Government and its various entities. Never has a single professional from the private sector been appointed to the post of Chairman, PEMRA. To point out this fact is not to undervalue or disrespect the professional credentials of the past Chairmen of PEMRA. While being associated with the Federal Government or its Corporations, a couple of these individuals have possessed both technical, specialist knowledge of fields related to media and communication such as telecommunication, as also information and media. The same applies to Executive Members of the Authority. Yet, there has also been an instance where individuals who served with distinction in the Police Service of Pakistan and in the Secretariat Group of Pakistan were appointed as Chairmen. There have also been instances where individuals appointed to serve as Regional Directors of PEMRA were also from the Police Service of Pakistan. Even where, as in the present instance in 2013, the Chairman of PEMRA is an individual with a long association with the Information Sector in his capacity as an official of the Government of Pakistan, the extensive past association with the Government accentuates and deepens the State-centric aspect of the Chairman’s office at the expense of the desired perception of credible independence, for the occupant of the post of Chairman, and independence for the Authority itself.
17. Whereas the original EMRA Ordinance, 1997 provided for the Authority to comprise, in addition to the Chairman, six Members of which only two were, in an ex-officio capacity, to represent the Government in their capacity as Secretary, Ministry of Information and Media Development and Secretary, Ministry of Communications, the PEMRA laws of 2002/2007 increase the total number of Members of the Authority from six to twelve.
(i) Of these twelve Members, the law in place now increases the presence of the Federal Government two-fold i.e. from two ex-officio Members to four ex-officio Members. These two additional Members being Secretary, Interior Division and Chairman, Federal Board of Revenue Note: The third ex-officio Member is the Chairman, Pakistan Telecommunication Authority in place of the original Secretary, Ministry of Communications. The fourth ex-officio Member remains the Secretary, Ministry of Information and Broadcasting.
(ii) Sub-Clause 4(A) of Clause 6 of the PEMRA Laws of 2002/2007 also provide for two additional Members to be appointed by the Federal Government on a need basis on the recommendations of the Chairman. As the Chairman has historically been a former senior official of the Government, this additional provision reinforces the dominance of the Government in determining the composition of the Authority.
18. In Clause 6, sub clause (3), the number of non-official citizens to be appointed as Members is increased from the number of four as in the original EMRA Ordinance, 1997 to five, including two women.
19. Whereas the original EMRA Ordinance, 1997, in Clause 5 dealing with the Tenure of Members, in Explanation (2) stated: “the Chairman and non-official Members shall not be eligible for reappointment”, the PEMRA laws 2002/2007 in Clause 7 (1) state that the “Chairman and Members shall be eligible for reappointment for a similar term or as the Federal Government may determine: provided that the Chairman and a Member shall retire on attaining the age of 65 years”.
The aim of limiting the tenure of the Chairman and Members to one term only as in the original law was to prevent the power to reappoint from being misused by the Government to influence the policies and actions of the Chairman and Members. By offering the inducement and option for reappointment, the Government has acquired the power to influence the Chairman and Members to take actions in support of the Government-of-the day.
20. The negative facet of the power of the Federal Government to act on its own authority to the detriment of the independence of PEMRA by unduly prolonging the period in which the body remains without a confirmed, full-time Chairman is glaringly evident in how during 2011 and 2012, for two whole years, the regulatory forum was headed by an “Acting Chairman” who was actually the Executive Member, PEMRA. Regrettably, it fell upon the Hon’ble Supreme Court to declare in its Order of 20th December, 2012 that : “No Chairman of PEMRA has been appointed in accordance with the provisions of the PEMRA Ordinance and particularly Section 6 thereof. Consequently, Dr. Abdul Jabbar is restrained from acting or representing himself as the Chairman or the Acting Chairman of PEMRA”. Such negligence by the Federal Government is an injustice to the regulatory sector itself while also being an injustice to the individual forcibly asked to serve as Acting Chairman and to bear the brunt of a restraining Order duly issued by the Hon’ble Supreme Court.
21. in the original EMRA Ordinance 1997, in Clause 10 dealing with Exclusion of Private Monopolies, in sub clause (3) unqualified emphasis had been placed on the need to ensure that, while granting a license, undue concentration of media ownership is not created in any city, town or area and the country as a whole so as to discourage (but not prohibit) cross-media ownership i.e. common ownership by one and the same group, of newspapers, TV channels, Radio stations etc.
22. However, within about three years of the enforcement of the PEMRA Ordinance 2002, the interpretation of this cautionary provision began to be made in a deliberately liberal and flexible manner so as to enable owners of existing media such as newspapers, magazines etc. to also become automatically eligible for obtaining licenses for TV channels and Radio stations without regard to whether such enablement of cross-media ownership would lead to strong dominance by two or three private groups.
23. This de facto change was belatedly given a kind of de jure validation when in 2007; the PEMRA (Amendment) Act was adopted by Parliament. Clause 23 dealing with Exclusion of Monopolies, sub clause (2) reads as follows:
“(2) In granting a license, the Authority shall ensure that open and fair competition is facilitated in the operation of more than one media enterprise in any given unit of area or subject and that undue concentration of media ownership is not created in any city, town or area and the country as a whole:
Provided that f a licensee owns controls or operates more than one media enterprise, he shall not indulge in any practice which may impede fair competition and provision of level playing field.”
24. Perhaps the most important word in TOR No.B is: “independently” which is used to pose the question as to whether PEMRA as a body has been able to truly function independently under the PEMRA Ordinance.
25. Given the above facts which reflect the basic changes made in the laws and the rules to vest greater control in the Federal Government over the composition and the operation of the Authority, PEMRA, even to begin with, had extremely limited scope to be a truly independent body.
26. One other indicator of how the theoretical independence of PEMRA was curbed and prevented, is how arbitrarily the regulatory authority was moved from the purview of the Ministry of Information and Broadcasting to be placed in the Cabinet Division in 2005, and then two years later, moved back to the Ministry of Information and Broadcasting.
27. Yet another revealing indicator of how both civilian-led and military-led Governments have tended to be authoritarian and disregardful of the norms and processes of consultation is the fact that in May-June, 2007, a civilian Prime Minister reportedly completely by-passed the Cabinet before new amendments were introduced to the PEMRA law of 2002/2007.
28. One vital requirement for true independence of a regulatory body is that such a body should be consistent in its consultative practices rather than be whimsical and arbitrary. Prior consultation with all stakeholders before making changes to the laws, policies, rules and regulations is obligatory because it is incumbent for regulatory public forums to take note of the views and recommendations of all stakeholders. Such prior consultation does not necessarily prevent a regulatory body from taking steps which, in its considered view, are in the supreme public interest. If such steps taken by a truly independent regulatory body are in conflict with the views of one or more stakeholders, such actions taken in the genuine public interest become valid and acceptable because they have been undertaken only after all relevant views and opinions have been noted.
29. At this point, it may be useful to refer to elements of consensus on desirable levels of independence of regulatory bodies as expressed in a special workshop on the subject of “Reforming and Enhancing Regulatory Mechanisms for Electronic Media”, held in Kuala Lumpur, Malaysia in 2007 on the eve of the 4th Asian Media Summit attended by over 500 delegates of over 70 countries from around the world representing all principal segments.
30. For example, this important meeting (as described in Dawn in June 2007) agreed “that the regulatory body should also be neutral and impartial to the extent that it is “agnostic” rather than of fixed and declared “ideology” (i.e. not as in religious ideology!). The “agnostic” option is meant to convey that in a rapidly changing technological and social environment it is better for a regulatory body to concede. “I do not know” rather than say: “I know it all”. This particular view came from the Chairman of the Australian Broadcasting Commission, which co-exists with as many as 16 different official and professional regulatory bodies, representative associations and forums which have an interface of one kind or another with the regulation and operation of electronic media in Australia.
It was noted that communications technology is evolving at a blistering speed, and that there will always be a gap between new technology and law-making. But at the same time all participants agreed this should not allow corporate interests or partisan, or Government interests, to prevail over the public interest. Five other principal points also evoked agreement. The need for regulatory bodies to ensure prompt access for the public through multiple forums and not just one, to handle complaints against media for the chief executives and directors of regulatory bodies to continuously enhance their individual knowledge and professional capacities without letting seniority become an obstacle to new learning. That, because regulation is inevitable, such regulation will have to take place in 4 forms: Self-regulation (singular as well as collective). Social (by viewers and listeners; and by civil society) By the State, (through Governments accountable to Parliament And on the global level, through codes for trans-national broadcasters that regulation is about enablement, and not about coercion and restriction. That both the media and regulatory authorities acknowledge that the values of responsibility, fairness, balance and accuracy are larger values than freedom of expression alone.”
Developmental mandate of PEMRA:
31. The developmental mandate of PEMRA is expressed in the Preamble to the
PEMRA laws, 2002/2007:
“WHEREAS it is expedient to provide for the development of electronic media in order to:-
(i) improve the standards of information, education and entertainment;
(ii) enlarge the choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, music, sports, drama and other subjects of public and national interest;
(iii) facilitate the devolution of responsibility and power to the grass-;.00ts by improving the access of the people to mass media at the local and community level; and
(iv) ensure accountability, transparency and good governance by optimizing the free flow of information;”
Assessment of fulfillment of developmental mandate of PEMRA:
32. Despite the foregoing facts and factors listed in this Report that, from the Inception in 2002 to date in 2013 have prevented PEMRA from being authentically independent of the negative facets of Government-control, it is clearly evident that in certain functional respects, there has been a notable degree of fulfillment of the developmental mandate.
33. In a fairly short period after its creation in 2002, PEMRA commenced establishing and extending its physical and administrative infrastructure both at its headquarters in Islamabad and through its Regional Offices in the four Provinces. The annual report of PEMRA for the year 2002 (at Annexure-4) describes the several steps taken in the very first year of its existence.
34. By way of updating the record, and for the specific benefit of the Commission, PEMRA has provided an 11-page statement (at Annexure-5). This statement includes measures taken by the body to create a regulatory framework. This framework after being updated from 2002 now comprises:
i. PEMRA Rules, including a Code of Conduct for Electronic Media 2009;
ii. PEMRA (Council of Complaints) Rules 2010;
iii. PEMRA (Distribution Service Operations) Regulations 2011;
iv. PEMRA (TV Broadcast Operations) Regulations 2012;
v. PEMRA (Radio Broadcast Operations) Regulations 2012.
In addition, after consultation with stakeholders, content regulations were also formulated in 2010. But the Hon’ble Supreme Court has set these regulations aside vide its Order dated 15-01-2013 due to the fact that there was no full-time Chairman of PEMRA in the period when these Regulations were prepared.
35. Covering the diverse sectoral and technical categories of electronic media, PEMRA has to date, issued 89 licenses for satellite TV channels of which 54 are for entertainment channels, 29 for news and current affairs, 4 for education and 1 each for health and agriculture. In the same period of the past 10 years, the body has issued 181 FM Radio licenses across the country. 36 are non-commercial licenses issued to the educational institutions and Government organizations concerned with awareness-raising and developmental activities. Further, 26 foreign channels have been issued permissions for landing rights i.e. the right to be distributed by Cable TV.
36. To facilitate access by viewers throughout the country, a total of 3364 licenses have been issued to Cable TV Distributors. Of these 60% are claimed to be for services based in small towns and in rural areas. 5 licenses have also been issued for the Multi-Modal Distribution System (MMDS) and two licenses for the PTV mode.
37. PEMRA claims that it has thus facilitated access by over 15 million households or about 75 million people/viewers to a wide choice of channels and options. This enables about 85% of all TV homes in urban areas and 60% of all TV homes in rural areas to view a choice of TV channels every day. Through FM Radio, about 78 million people are able to listen to a choice of radio channels.
38. By its own estimate, PEMRA claims that it has enabled a cumulative investment in the electronic media sector of US$ 3 billion, creating direct employment opportunities for over 200,000 people and indirect benefits through such employment to about 700,000 people. The forecast for growth in new investment in the electronic media sector is an increase of about US$ one billion during 2013.
39. Giving detailed figures for each category of actions taken with regard to complaints by the public about violations of the law and rules committed by the licence-holders and Cable TV Operators, fines imposed and fines recovered as well as closures enforced on illegal FM Radio channels etc., PEMRA states that during the past ten years, as an example of its efficiency, 70,250 complaints have been duly rectified out of a total of 70,500 received. However, the Commission did not have the opportunity to examine a representative sample of complaints received and the responses given by PEMRA. Precise figures of all categories of actions taken are contained in the Annexure referred to above.
40. Apart from reiterating that PEMRA has fulfilled its duty to provide the ix. With access to a wide choice of electronic media in less than PEMRA’s viewpoint on different aspects of its work and of how it is misperceived is reflected in the following elements:
(a) “PEMRA is wrongly seen as a “Thaanedaar” whereas we are a Regulator, not a coercive or force-based power.
(b) The basic issue is that in the content of electronic media, PEMRA cannot dictate such content.
(c) In addition to the PEMRA Code, the media themselves need to
Formulate and enforce their own Code if the ideal of self regulation is to be achieved.
(d) PEMRA goes through different stages of corrective action when licence-holders cross lines: e.g. issue warnings, make direct interventions, outright suspension of a licence.
(e) It appears that the holders of licenses for electronic media want no external regulation they want to exercise unbridled freedom.
In TV and Radio channels, in the volume of Indian content shown and in other aspects, there seems to be a willful disregard of rules & regulations by broadcasters.
(g) With regard to the controversy on the screening of drama serials from Turkey dubbed into Urdu: in principle, PEMRA has no objection as it is reported that content from Turkey is cheaper than local programming. So the people have the right to choose what they want to see. The size of audiences viewing Turkish serials dubbed into Urdu has grown. Is it fair to deprive people of what they want to see? The United Producers Association has the right to object because of the adverse impact that this has on local productions. But surely there will always be a large audience for good quality local productions.
(h) If stakeholders want PEMRA to be closed down, we do not mind! But surely, there has to be an entity of some kind to regulate electronic media.
(i) Every time we issue a warning or a notice to a TV channel or FM station, the recipients immediately obtain stay orders from the High Courts and continue their violations.
(j) There should be separate forums to handle legal cases of electronic media. As stated on pages-59/60 of Part One of the Report by the Commission: As of March 2013, 72 cases are pending, 70 of them in two High Courts, one in the Supreme Court, one in the Muzaffarabad High Court. 45 cases are pending in the Sindh High Court, 20 in the Lahore High Court, 5 in the Islamabad High Court, and such cases have been pending since 2009 and 2010, 2011, 2012 and the first weeks of 2013.
(k) We have requested the Hon’ble Courts to accelerate the hearings of such cases and to set up special Benches but await the announcement. There is a lack of sufficient case law in Pakistan to provide precedents and guidance. New conditions, new technologies are rapidly evolving and new laws and constantly updated knowledge are required.
(l) We have noticed that several eminent lawyers are reluctant to handle cases in which the owners of TV channels are respondents.
(m) Whereas it is said that PEMRA is always ready to conduct raids against cable TV distributors for allegedly airing pirated content from Indian sources and Hollywood movies, PEMRA has failed to stop the continued and increasing sale in the markets throughout Pakistan of illegally imported DTH (Direct-To-Home) set-top boxes from India. It is estimated that there are already in 2013, about 1.5 million such illicit devices installed in as many TV homes across Pakistan which are freely able to access dozens or hundreds of Indian and other foreign channels. This failure by PEMRA to prevent the broadcast of unlicensed content is reportedly inflicting substantial losses on both cable TV operators and on the proprietors of licenced satellite TV channels who are members of the Pakistan Broadcasters’ Association and who have invested large sums to launch and sustain their channels.
PEMRA’s view about this charge is that the responsibility to prevent smuggling and sale of illegally imported DTH units is the responsibility of the Customs Service and the Federal Board of Revenue and that PEMRA has neither the mandate to control smuggling of goods into the country nor does it have the resources to deploy the force necessary for such a task.
(n) PEMRA experience shows that Cable TV Operators/Distributors cause more problems than Members of the Pakistan Broadcasters Association! They operate more than the legally-allowed five of their own in-house CD channels. The area covered by these 3364 cable operators/distributors is very large and difficult to monitor. On a long-term basis the introduction of digital transmission technology in place of the existing analogue transmission technology could be a viable option.
(o) Three media firms had submitted bids to introduce DTH (Direct-to-Home) transmission system but the matter became disputed and is presently sub juice. So we will have to wait for the final legal verdict.
(p) The current PEMRA budget is based on revenue of Rs.700 million per year and expenditure of about Rs.667 million per year. The total staff strength is about 560 persons, with 200 of them at the Head Office in Islamabad.
(q) The Government elected in 2008 has never asked us to close down any TV channel. In fact on one occasion, the then-Secretary, Ministry of Information and Broadcasting asked us to consult the Ministry before taking drastic action against any TV channel.
(r) With regard to the issue of financial independence: while we do not receive any funds from the public exchequer, PEMRA does deposit all revenue in the Treasury. This is related to the question of who is, or should be, the Principal Accounting Officer of PEMRA i.e. Secretary, Ministry of Information and Broadcasting as the PAO of the controlling Ministry. Or should the PAO be the Chairman, PEMRA in reflection of the claim that PEMRA is an autonomous regulatory body independent of the Government PEMRA would certainly benefit if it obtains complete operational fiscal autonomy.
(s) PEMRA has taken note of unsupported and possibly unverifiable allegations that some TV channels were temporarily “purchased” in advance of the Elections 2013.
(t) A couple of media houses are reported to have received large grants in the form of advertising contracts from overseas sources. It is said that one such grant is about 20 million. Some part of this amount may be for paid advertising, or sponsorship of a programme. The actual facts are not conveyed to the public or to PEMRA. It is also said that all or part of this amount is received by an entity which is part of the media group and is used to sponsor non-advertising campaigns. Any attempt by PEMRA to probe such matters immediately leads to claims that there is an attempt to curb freedom of the media and there is always the recourse to obtaining a stay order if an inquiry is held.
(u) Seven licenses were revoked for failure to commence broadcast.
(v) Section 30 of the PEMRA law that deals with “power to vary conditions, suspend or revoke the liecence” in case of violations is not often applied and when PEMRA attempts to apply this section, the offenders immediately get relief from the Courts.
(w) In the name of religion, there are examples where an entity without Obtaining a licence from PEMRA continues to telecast in the name of “Q-TV”. Despite the notice for suspension issued by PEMRA, this channel continues to be telecast on the basis of a judicial stay order.
(x) PEMRA has to manage the difficulties of relationships with Cable TV Operators and PBA, while PBA has once gone to the Sindh High Court against the Cable Operators. PEMRA drafted a paper to reconcile the two parties and called for a meeting but PBA did not participate. So the matter is pending.
(Y) PBA complains about underhand payments and incentives given to Cable TV Operators by some parties in order to place particular channels in the first 10 or 20 slots and thus discriminate against other channels which do not make such payments.
(z) PEMRA is of the view that channels of a similar genre e.g. sports, News, entertainment, etc. be grouped together in slots by Cable TV Operators so that all have a fair chance.
(aa) Whenever PBA members have exceeded the time permitted for advertising per hour by PEMRA i.e. 12 minutes of commercials spread over 60 minutes, stay orders have been obtained to prevent PEMRA from enforcing such limits. PEMRA has tried in vain to prevent channels from running commercials after every single ball in a cricket match: to no avail I”
41. Emphasizing that PEMRA does function as a body independent of any Possible negative effect of being under the control of the Government or a particular Ministry, PEMRA states that, unlike APP, PBC, and PTV in which the Secretary, Ministry of Information and Broadcasting is the Chairman of these three entities, in the case of PEMRA, the same Secretary is simply an ex-officio Member of the Authority and not its Chairman.
42. To reinforce its claim to be independent of Government control, PEMRA points out that it is not dependent on receiving financial support from the public exchequer and is thus not beholden to the Ministry of Finance. PEMRA states that it generates all its revenue from the licence fees, licence renewal fees and other charges applied by it to organizations seeking PEMRA facilities and services.
43. In summary, and without prejudice to the need to separately list and assess the qualitative and other dimensions of whether PEMRA has fulfilled its developmental mandate, the Commission is of the opinion that between 2002 and 2013, PEMRA has certainly facilitated the transformation of the electronic media landscape of Pakistan. From a paucity of wholly State-owned channels e.g. PBC, PTV and dominantly State-owned channels e.g. Shalimar TV Network (STN), the country now has a vast and varied range of channels and choices. To a significant and positive extent, virtually all the administrative and technical support infrastructure required to facilitate the inception and continued operation of 161 FM Radio channels and 89 satellite TV channels has been ensured by PEMRA.
Flaws and failures in PEMRA’s performance:
44. A principal stakeholder in the electronic media sector i.e. the Pakistan Broadcasters’ Association (PBA) began its comments to the Commission with the strong statement to the effect that: “PEMRA has not been able to fulfill its developmental mandate, its regulatory function independently”.
45. PBA goes on to make the following statements and allegations:
(i) “It (PEMRA) is used as a tool by Government to tame and control the media. It has failed to stop illegal Indian DTH units that hurt cable operators and air Indian channels and escape tax revenue for Pakistan. There are an estimated 1.5 million illegal Indian DTH boxes in Pakistan and not a single raid has been conducted by and through PEMRA. Yet many raids have been conducted against cable operators by PEMRA. Cable operators screened illegal content because they have to compete with DTH.
(ii) PEMRA uses undue pressure also against cable operators as well as channels and tries to influence them and their editorial policies.
(iii) PEMRA also has done nothing to develop media and iii fact has done many things to hurt the media industry.
(iv) Some members of PBA have considered legal action against PEMRA regarding the grant of a license to URDU 1.
(v) Also PBA has written to President, Prime Minister, Leader of the Opposition, Chief Election Commissioner and Chief Justice of Pakistan that appointing of Chairman PEMRA should be done like Chief Election Commissioner and with consultation of industry stakeholders like PBA.
(vi) Also PEMRA should be mandated to increase its transparency in all areas and post on website on weekly basis its findings as to who has paid what license fee, and who hasn’t, so that its ability to man oeuvre and use discretion to favour or suppress cable operators or channels is curtailed
(vii) PEMRA should also undergo operational audits quarterly by independent third party companies like Ferguson’s and KPMG and others firms. The results should also be posted on its website within one week of the report.
(viii) Lastly, Members of PEMRA should be independently selected and must include a representative from PISA, Pakistan bar Council, representatives from PFUJ and Pakistan Advertisers’ Society, and members of Parliament nominated by the Leader of the House and the Leader of the Opposition. Such a body will have trust from the general public and its decisions will be given due regarded in courts also.
(ix) The Commission must also recommend that no Government employee or an employee of any State-owned or controlled corporation should work in any senior position in PEMRA, i.e. at present there are several DGs working in PEMRA on deputation basis from other Ministries or from Ministries of Communications or from PTCL.
(x) Most importantly, PEMRA because of politics has not been able to get subscription revenue started in Pakistan even though it is part of the PEMRA Ordinance and law (i.e. a minimum of Rs.2 per channel per subscriber through cable operators). This lack of subscription revenue causes at times an undue bias towards ratings and advertisers. In most parts of the world, including India, media gets 40-50 percent of its revenue from subscription fees paid by viewers.
(xi) Related to this, the other most important point is that PEMRA has given approximately 125 channel licenses (besides the 5 channels of PTV which are not covered by the PEMRA law) in Pakistan, knowing that most cable operators can show approximately only 80 channels (including 5 in-house CD channels). The answer to this conundrum is within PEMRA as it has openly acknowledged and set its own target that by 2012-2013 it will bring in reforms that will help cable operators to update their cable. systems so that the number of channels shown can be increased and channels also will be able to gain more subscription revenue.
(xii) This system is called Digitization of Cable (which includes Conditional Access) and already India has implemented it to a large degree but not a single reform has come from PEMRA regarding it.”
46. “The viewpoint of the Cable Operators Association of Pakistan (COAP) which Was represented in its meeting with the Commission by a 13-member delegation led by its Chairman, on TOR No.B was expressed in a letter addressed to the Secretary of the Media Commission dated 22nd February, 2013 (at Annexure-6).
In Para-2 of this letter in particular and in other Pares up to the concluding Para No.8 in general, the COAP is extremely critical of leading TV news channels, their proprietors, leading anchors and journalists and strongly condemns the dominant influence of corruption and vested interests in shaping the content of media.
47. Notably, there is no reference by name to PEMRA in this written submission to the Commission though there is an emphatic condemnation of irregularities and calls are made for comprehensive reforms.
48. During the meeting with the Commission, office-bearers and members of COAP made the following observations:-
(i) “We, Cable Operators/Distributors are major stakeholders of the electronic media sector of Pakistan and we thank the Court and the Commission for this opportunity to present our viewpoint.
(ii) Though there are about 3159 licensed operators/distributors, the actual fact is that, when the unlicensed small scale loop-holders/sub-distributors are included we estimate that there are about 15,000 to 16,000 Cable TV Operators/Distributors in total.
There is clearly an over-saturation of numbers. The Islamabad High Court has issued an order to PEMRA suspending the issuance of any more licenses to cable operators.
(iii) Many TV news channels do not pay their Reporters, thus encouraging corrupt practices. Some tickers running on screen inform us that they have changed their staff!
(iv) As PEMRA has become a revenue-generation body, how can it regulate effectively? When revenue becomes the prime aim, it becomes easy to indulge in corrupt practices.
(v) PEMRA has never performed independently and is vulnerable to too much official, political pressure e.g. from the ruling party or coalition, with their own biases. It is only seemingly autonomous but not actually so with about 617 staff members, PEMRA is overstaffed and oversized.
(vi) With the high rates of fees which PEMRA charges from us, Cable TV Operators, frequently being revised upwards e.g. in one category, starting with about Rs.700,000 in 2002 to Rs. 1.7 million in 2007, it seems that PEMRA is running only on the fees extracted from cable operators.
(vii) Why is it that PEMRA never raids the office of a TV channel? Whereas it is always ready to raid cable operators!
(viii) PEMRA places no effective curbs on the content of so-called entertainment for example, the programmers which show reenactment of crimes and thus actually encourage some abnormal viewers to indulge in copy-cat behavior in real life. In some cases, some channels are allowed to get away with very permissive content. The records maintained by PEMRA about actions taken against TV channels are false and misleading.
(ix) PEMRA has never closed any TV channel that is already functioning. Whereas because most cable. TV operators are small and scattered; PEMRA is quick to act against us cable TV operators.
(x) TV channels hire expensive lawyers and they are given a chance to appear on TV, defend TV channels, get free publicity and then obtain stay orders from the Courts.
(xi) PEMRA has added a new licence category meant for only in-house CD channels of cable TV operators. In the B-1 category, we pay an annual fee of Rs.35000/- for one channel. For two CD channels, the license fee is Rs.450001- per channel. Whereas, for example, a leading TV channel like Geo Entertainment whose estimated annual income from advertising is Rs. 150 crores (Rupees 1.5 billion), PEMRA charges that TV channel an annual fee of only Rs.700, 000/- But cable TV operators of Karachi are forced to pay amounts ranging up to Rs.4.5 million per year plus Rs.850, 000 is charged as annual renewal fee. PEMRA also has raised charges to cable TV operators from Rs. 10 per claimed subscriber to Rs.24/- per subscriber. PEMRA also imposes an automatic growth table to assess the increase in the number of household subscribers for each cable TV operator.
(xii) Whenever the Government wants to put pressure on a particular TV channel, PEMRA is used to pressurize us to change the positioning of a particular channel or to drop it for some time.
(xiii) Due to the small, cottage-industry scale of our sector, many cable operators are not well-educated or highly educated persons.
(xiv) The Islamabad High Court has rendered a decision, and not just a stay order preventing PEMRA from issuing new licenses for cable TV operators in order to protect the precious investments already made and to prevent further saturation.
(xv) Any future license process for cable TV operators should be through open, public bidding. This rule is followed by PEMRA only for FM Radio licenses but not for selling licenses for cable TV distribution or for TV Channels. No public hearing is held about licenses for Cable TV. IHC’s order also states that all cable licenses should be reissued. Yet, 256 licenses were issued by PEMRA AFTER this order by IHC but they were cleverly backdated.
(xvi) For cable TV operators, PEMRA has become worse than the police force.
(xvii) Whereas print media owners have been given TV channel licenses while allowing cross-media ownership, cable TV operators are not allowed to be given licenses for TV channels except in one or two cases, e.g. the Metro TV channel. Please remember that when CNN began, CNN was a cable TV operator.
(xviii) There is enormous disparity and discrimination by PEMRA in the renewal fees. E.g. for owners of TV channels, it is Rs.700000/- per year, for radio channels, Rs.400000/- per year whereas for a cable TV distributor, it can be Rs.2.2 million.
(xix) In Balochistan, due to local factors of violence and insecurity, many national TV news channels are banned in the Baloch parts of Balochistan because of non-coverage by these TV channels of the situation in that region. Yet the TV channels do not protest publicly. Cable TV operators there face threats from both sides i.e. the extremist elements and the official authorities who want us to distribute the national channels e.g. PTV, which the extremists do not want us to show.
(xx) In Khyber-Pakhtunkhwa, 7 to 8 “Head-end” network operators’ offices were blown up due to news bulletins telecast by some TV channels.
On the average, only about 20% of households pay fees to the local cable TV distributors. 80% refuse to pay.
(xxi) Cable operators in Karachi contribute Rs.80 million to Rs.90 million to PEMRA every year which is far more than what the owners of TV channels pay to PEMRA.
(xxii) In the two decades i.e. 1980s and the 1990s, before PEMRA, a limited kind of cable TV distribution business had already started by distributing through local cable connections: pirated, smuggled tapes, VHS tapes of banned Indian films or films from Hollywood e.g. in Kharadar, Karachi in 1982-83.
(xxiii) Because there is no advertising revenue from Balochistan for the TV channels, there is total apathy towards the situation in Balochistan.
(xxiv) The number of Indian films and Indian content being shown in the in-house CD channels by the cable TV operators is going down because of the illegal and widely available DTH set-top units numbering over 1.2 million being easily available and showing hundreds of Indian and global channels. We have made complaints about this and the fact that the payments are being remitted to Singapore: yet no action has been taken by PEMRA or by HA.
(xxv) The excessive issuance of licenses for TV news channels has made it virtually impossible for cable TV operators to show 30 news channels at the same time.
(xxvi) The excessive use of “breaking news” by the TV channels and their hysteria is actually damaging the nation’s psyche, also due to the undue coverage of violence and terrorism. The behavior on screen of some TV anchors is revelatory.
(xxvii) PBA could play a potentially useful role to improve the conditions.
(xxviii) Whereas PTA has a reasonably low scale of charges, PEMRA uses
Multiple and variable criteria to extract revenue. It wants as much as 5% of gross advertising revenue earned by cable TV operators from our in-house CD channels and has even put pressure on illegal CD channel operators to obtain such revenue.
(xxix) Province-wise, there is an inconsistency between Punjab and Sindh in the issuance of licenses for loop-holder licenses.
(xxx) Whereas there is a limitation of only four channels per media group, yet another channel is supposed to be launched soon by the leading media group of the country while relying on an order of the Supreme Court.”
49. Stakeholders and media professionals from sectors other than PBA made the following critical comments about PEMRA:
(i) “PEMRA has not rendered a truly effective role as a regulator of electronic media.
(ii) PEMRA failed to introduce and enforce a revenue generation model and system for TV and FM radio channels by which at least 30 to 40 per cent of their commercial income would come from viewers and listeners. By making TV channel license-holders totally dependent on advertising revenue, PEMRA has facilitated excessive commercialism of electronic media, with all the attendant distortions. This failure has also enabled advertisers to play an unhealthily dominant role in shaping programme content; timings of telecast and use of an audience ratings system to lower content standards. There are several examples of countries which could have been applied in Pakistan to ensure that the commercial advertising element does not become the dominant factor.
(iii) From the viewpoint of channel owners, it seems that cable TV operators have a special covert relationship with PEMRA, commencing at the highest level of the body and covering other field operational levels as well. PEMRA allows cable TV operators to be extortionists, virtually blackmailing owners of TV channels by positioning various TV channels according to the degree to which channel owners are willing to accept the demands of cable TV operators.
(iv) One of the reasons why PEMRA has a special relationship with some cable TV operators is in order to ensure that verbal or secret instructions from the Government to favour or disfavor certain TV channels are conveyed by PEMRA to cable TV operators so that partisan and corrupt objectives are achieved PEMRA has allowed cable TV operators to become very strong bodies both in the Provinces and at the national level by using them and sometimes, by helping to divide them.
(v) The decision to allow cable TV operators to run their own 5 to 6 in-house CD
channels is a major cause of corruption because pirated Indian and Hollywood content, including very permissive content, is allowed to be screened without any effective checks and balances by PEMRA.
(vi) Some cable TV operators who are known as “loop-holders and who directly take fees from subscribers receive the TV signals from “Head- end” operators who download the signals from satellites and redistribute to “loop-holders” e.g. one “Head-end” provider may distribute signals to 400 or 500 “loop-holders “. A few months ago, two leading channels such as KTN and Geo TV were dropped by certain cable TV distributors as a kind of retaliation and PEMRA did not take any corrective steps.
(vii) PEMRA has done little or nothing to ensure that regional language TV channels receive a fair share of advertising revenue, whether this is from Government sources or from the private sector. While it is not PEA/IRA’s duty to ensure fair distribution of advertising to TV channels, a regulator does have the moral and professional duty to pinpoint gross imbalances and encourage fair and balanced distribution of advertising. Regional language channels contribute about 18% of the content accessible to viewers. Yet they receive only 2% of the total advertising revenue.
In 2013, there are eight Sindhi language channels, five Punjabi/Seraiki channels, two Pashto language channels and one Balochi language channel. This does not include the regional language channels and programmes of PTV. With regard to Codes of Content and Codes of Conduct, we (TV channel owners and FM Radio licensees) discussed in. 2009 a draft with a Committee chaired by Justice (R) Fakhruddin G. Ebrahim and submitted the same to PEMRA and then asked them for some changes. The key problem was about the mechanism to implement actions concerning violations of the Code. PBA wanted self-regulatory implementation. Whereas PEMRA wanted a shared process.
(viii) PEMRA has also failed to introduce a fair, credible and truly independent viewership assessment system (or: a ratings system). The existing method: imposed by advertisers and private firms specializing in audience measurement are narrow, heavily urban-centric, imbalanced and inaccurate.
(ix) The TV audience measurement system used in Pakistan is actually quite absurd because it provides a kind of minute-to-minute rating system which is very misleading. Whereas in India, ratings are released only once a week. While TV channels in general suffer as a result of this imbalanced system, regional language channels suffer the most. PEMRA has taken no action to correct such injustices.
(x) The intention of PEMRA to charge TV channels as much as of 5% of their gross revenue to provide free income to PEMRA is a gross, crude attempt without justification of any kind because a regulatory body is not supposed to become rich at the expense of the sector which it regulates. PEMRA is not meant to be a profiteering organization but one that is to serve the public interest. With regard to the rule by which 10% of the programme time of TV channels is to be devoted for public service broadcasting: on some occasions, PEMRA has tried to force TV channels to run advertisements inviting applications for job vacancies in the public sector!
(xi) A glimpse of the professional background of the persons who have served as Chairmen of PEMRA shows that while their respective individual backgrounds and qualifications are respectable and credible in their own spheres, not more than one or two have possessed direct, first-hand experience of the media sector in general or of the electronic media sector in particular e.g. from PTV or with an overseas broadcasters. Thus, PERM4 has not been able to benefit from the specialized knowledge and experience of a truly professional broadcaster and regulator as its Head.
(xii) PEMRA has indiscriminately over-issued licenses for TV channels and FM radio stations. This excess is most evident in the TV news channels sector where far too many channels are operating. The most negative result is that, due to cut-throat competition for higher viewers’ ratings and income from advertising, the standards of news and current affairs have suffered.
(xiii) What is the justification for PEMRA giving approval for landing rights to foreign TV channel such as URDU1 which reportedly does not even broadcast from or in its own location i.e. Dubai/UAE? The actual owners of URDU] are said to include Indian nationals. Has PEMRA conducted due diligence to ascertain the bona fides of the actual ownership of URDU] TV channel? By permitting this Channel to be freely viewed throughout Pakistan, PEMRA is promoting a `full-scale invasion” by Indian and foreign (Turkish) TV dramas at the expense of Pakistan’s own productions and TV channels.
50. Despite the existence of a category in the PEMRA law by which community-based TV channels and FM Radio stations are to be established, PEMRA has failed to fulfill an important part of its developmental mandate by omitting to issue licenses to community-based organizations and non-governmental organizations.
51. PEMRA is reported to have responded to applications from reputed capacity-building, grass-roots organizations such as SPO (Strengthening Participatory Organization), www.spo.pk.ore and SPDI (Sustainable Development Policy Institute) with the statement that licenses will not be issued to NGOs and particularly those that receive funding from overseas sources. To exclude NGOs which render valuable public service is by itself discriminatory. To exclude all entities which receive foreign funding is to ignore the fact that the Federal Government of Pakistan itself receives substantial foreign aid I All funds provided by overseas sources to NGOs in Pakistan are subject to monitoring and approval, in principle, by the Economic Affairs Division of the Federal Government. As to whether the receipt of foreign funds by Pakistani NGOs makes them vulnerable to potential negative foreign influence over media content there are sufficient safeguards in place in the PEMRA law and rules and in other laws that could be applied to prevent any TV channel or FM Station operated by an NGO to act as a conduit for the covert agenda of overseas countries or agencies.
52. In any case, PEMRA permits TV channels and FM stations to sell their time to overseas entities such as VOA (Voice of America) and permits collaboration with. BBC to disseminate content within Pakistan Further, several multinationals whose proprietorship is foreign-based and which remit large sums of profits from Pakistan to overseas headquarters are permitted to profitably market their products and services in Pakistan while competing against Pakistani enterprises which do not have the same advantages enjoyed by multinational foreign corporations Thus, the discrimination against NGOs by PEMRA deprives the public from benefitting from electronic media content which is driven by public service ideals and not driven by the commercial considerations that dominate all channels.
53. It is reported that PEMRA insists on considering applications only from joint Stock companies registered with the Securities & Exchange Commission of Pakistan. This policy excludes several dozens of highly reputed civil society organizations which are registered as associations, societies, Trusts etc. from being able to operate TV and Radio channels that would serve the public interest cause in many diverse ways.”