PAKISTAN BROADCASTERS ASSOCIATION and others vs PAKISTAN

' MAQBOOL BAQAR, J.--The appellants brought under challenge the vires of Rule 15(3) of the Pakistan Electronic Media Regulatory Rules, 2009 ('PEMRA Rules'), and clause 10.4 of the licenses granted to appellants Nos. 2, 4, 6, 8 and 10, through their petition before the learned 'High Court of Sindh, whereby they also challenged the legality of the notices issued to them in pursuance of the above Rule. It was through the impugned order that the petition was dismissed by a learned Division Bench of the High Court.

2. According to the appellants, the appellants Nos. 2, 4, 6, 8 and 10, who own and operate various satellite TV channels under their respective licenses issued by respondent No, 1, were compelled by respondent No, 1 to consent to the incorporation of clause 10.4 in their licences, which clause allegedly contains an unlawful, unreasonable, arbitrary, excessive and disproportionate restriction on the maximum period of an advertisement break, during prime time i.e, between 19:00 hours to 22:00 hours of Pakistan Standard Time, to be not more than two minutes to a minimum of ten minutes programme, and further that the duration between two successive breaks shall not be less than fifteen minutes.

3. It was contended that the restriction sought to be imposed by respondent No, 1 through the said Rule in the operation of their respective TV channels by the appellants not only amount to usurpation of the managerial power to determine as to what, when and how, is to be broadcast by independent TV channels, but such restrictive clause is also excessive of and beyond the regulatory powers accorded to the respondents to regulate the media under Article 19 of the Constitution of Pakistan, 1973, and are therefore, void and unenforceable. However, through notice dated February 18th, 2010 (impugned notice No, 1, sent to appellants Nos. 1, 2, 4, 6, and 10, the owners and operators of private TV channels), respondent No, 1 alleged that there are excessive advertisement breaks during the broadcast of programmes by their TV channels. It was contended that such excessive commercial breaks are an infringement of the citizens right on quality of programmes.

4. The notice disclosed that respondent No, 1 has decided that any violation of Rule 15(3) of the PEMRA Rules shall result in the imposition of a fine of Rs,1,00,000/- and in case of repetition the fine so imposed shall be Rs,2,00,000/-. The notice also required the private TV channels licensees to broadcast advertisements in compliance with Rule 15(3) of the PEMRA Rules.

5. The above notice was followed by a public notice published in the Daily Dawn of 3rd March, 2010 alleging violation of the above Rule and inviting general public/viewers to register their complaints, suggestions or comments on the issue of quality of programmes, excessive advertisements, or any other matter relating to broadcast media at respondent No, 1 regional offices. Show cause notices were issued to appellants Nos. 2, 4, 6, and 8 on 7th April, 2010 threatening imposition of fine of Rs,1,00,000/- in terms of section 29(6) of the PEMRA Ordinance, and directing them to immediately stop airing excessive advertisements and calling upon each of them to appear for personal hearing at respondent No, 1 headquarters. Through another letter dated April 26th, 2010 (impugned notice No, 3), respondent No, 1 reiterated the contents of impugned notice No, 1.

6. Mr. Khalid Javed Khan, learned counsel for the appellants submitted that setting up a private TV channel requires a heavy capital and other substantial investment. It is about Rs,100 million to 300 million that is initially invested towards establishment of a TV channel whereas the proponent also has to pay an initial license fee of Rs,5 .Million which license is renewed on a fee payment of Rs,0.3 to 1 million. Whereas these channels are required to share 5% of their gross revenue with PEMRA, and to provide. 10% advertisement time for public service messages. The learned counsel further claimed that Government/ public bodies pay for the advertisements at 30% concessional rates, however, the only source of revenue for the private TV channels are advertisements. They receive no subscription from the viewers/ subscribers who pay a nominal amount of Rs,2200/- to their cable operators for receiving the TV transmission through the said operators. Whereas on the other hand, the Pakistan Television Corporation, in addition to making their earning through advertisements, also receives a ' substantial amount collected by way of TV license fee incorporated in every electricity bill throughout the country.

7. Mr. Khan further submitted that private TV channels are primarily business enterprises and their object is to survive and flourish in market and are fully subject to market constraints, yet not being allowed to be governed by the market forces. Whereas no such restrictions exist on print media. He submitted that Sunday Newspapers are mostly advertisement. The learned counsel also submitted that independent rating companies consistently show that channels with maximum advertisements have large viewership. He further submitted that viewers are not the consumers of TV channels, nor do they make any payment to the channels. Thus, the private TV channels do not owe any contractual obligations to the viewers. However, the survival of every channel depends upon the size of its viewership. Hence, every endeavour is made to cater to their taste and liking.

8. Mr. Khan also emphasized that advertisements are unavoidable necessity all over the world and that no channel can survive without it. He further submitted that all that the appellants are requesting is that a slot of 20 minutes in an hour be allowed to the channels for broadcasting advertisements which is the minimum duration for the channels to survive and sustain their operations. He contended that the freedom of expression of the media secured and guaranteed under Article 19 of the Constitution of Pakistan, 1973 could not be subject to restrictions and constraints other than as specifically provided under that Article, and that the removal of perceived public/viewers inconvenience on account of allegedly excessive advertising sought to be removed/mitigated cannot be said to be a legitimate State interest to be enforced through any law, rule or regulation and if at all the same may possibly be perceived as a legitimate public interest at stake, it could be redressed through less pervasive and proportionate means. Mr. Khan submitted that the restrictions purportedly imposed through Rule 15(3) are beyond the scope of restrictions envisaged in Articles 18 and 19 of the Constitution of Pakistan, 1973 and also of section 20 of the Ordinance, 2002. It is thus ultra virus, and that there is no legitimate State interest that is being achieved through Rule 15(3). PEMRA is catering to the putative discomfort that is allegedly felt by viewers when there is advertisements break. This is not a valid State interest warranting State interference which seriously jeopardizes the sustainability and operational ability of appellant's channels.

9. The learned counsel further contended that if allowed to cater for public taste, the State would embark upon a paternalistic path and start determining the contents of the programmes and once allowed to regulate commercial speech, this being a slippery slope, would eventually stifle even core free speech and public discourse. In support of his contentions, Mr. Khan relied on the judgment reported as R v. Central Independent Television Plc (1994)3 ALL ER 641 at 651. He termed Rule 15(3) as arbitrary and unreasonable, and submitted that it is liable to be struck down on that ground also, and relied upon the case of The Chairman, Railway Board, Lahore and others v.

Messers M. Wahabuddin and Sons (PLD 1990 SC 1034 at 1041-(Para 8). The learned counsel submitted that it is not just the core free speech that is protected under the Constitution but commercial speech also is entitled to protection by the Court and relied upon the case of Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (447 US 557). He submitted that the appellant channels are disadvantaged vis-a-vis PTV which does not observe the limits provided under Rule 15(3) and is currently the second largest recipient of advertisements revenue of about Rs,1700 million, which is in addition to about 340 million monthly received by it from TV license fee through electricity bills. He submitted that the Government is subsidizing PTV for it to remain viable yet denying the private TV channels their life line by curtailing the duration of advertisements. He relied upon the case of Government of NWFP through Secretary and 3 others v.

MEJEE Flour and Central Mills (PVT) LTD Mardan and others (1997 SCM R 1804). Concluding his arguments, the learned counsel pleaded for a consensual resolution to be evolved after sympathetically considering the contentions of the appellants so that the issue which according to him is an existential issue be decided amicably.

10. On the other hand, Mr. Kashif Haneef, the leaned ASC for the respondents, at the outset objected to the maintainability of the petition. He submitted that the petition having been filed upon issuance of a show cause notice only, is not maintainable. He also submitted that in terms of the notice the appellants were required to show cause against the imposition of the fine under Rule 15(3) of the PEMRA Rules. He further submitted that since in terms of section 30A of the PEMRA Ordinance, the appellants have a remedy by way of an appeal, in case respondent No, 1 decides against the appellants in pursuance of the proceedings initiated through the impugned show cause notice, the petition was/is not maintainable on this ground also. Mr. Kashif Haneef further submitted that the petition before the High Court suffered from laches as the impugned clause was/is contained in the relevant licences since inception. However, it was only when the respondent No, 1 issued the impugned notices against violation of law and the terms of the license, that the appellants, to preempt the legal course, filed the petition before the High Court, and thus, the same was/is liable to be dismissed for suffering from laches as well. He submitted that the appellants did not approach the High Court with clean hands, rather they filed the petition with a mala fide intent to obstruct the course of justice, and prevent the respondent No,1 from carrying out the mandate of law, and fulfilling their duty under the statute. The learned counsel urged the Court to dismiss the appeal.

11. No doubt freedom of speech goes to the very heart of a natural right of a civilized society to impart and acquire information about their common interests. It helps an individual in self accomplishment, and leads to discovery of truth, it strengthens and enlarges the capacity of an individual to participate in decision making, and provides a mechanism to facilitate achieving a reasonable balance between stability and social change.

12. The concept of freedom of media is based on the premise that the widest possible dissemination of information from diverse and antagonistic sources is sine quo non to the welfare of the people. Such freedom is the foundation of a free government of a free people. Any attempt to impede, stifle or contravene such right would certainly fall foul of the freedom guaranteed under Article 19 of the Constitution of Pakistan.

13. However even the core free speech, which propagates social, political or economic ideas, promotes literature or human thought, though fully protected, is subject to reasonable restrictions contemplated under Article 19 of the Constitution. Whereas the advertisements/ commercial speech; where the object and purpose is restricted to mere promotion of sales of goods and services, or stimulation of purchase thereof, and where the acquisition of the article to be sold constitutes the only inducement to its viewer, does not receive the same protection as social or political speeches and is subject to higher degree of regulations than non commercial speech.

14. In Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, 447 US 557, 564, the US Supreme Court held that though commercial speech is constitutionally protected form of expression, its inherent nature make it prone to more limitation than others form of speech.

Earlier in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc, 425 U.S. 748, 96S. CT 1817, 48 L. Ed 2d 346(1976) as well, while emphasizing "the.Consumers interest in the free flow of commercial information", the US Supreme Court though voided a statute prohibiting pharmacist from advertising the price of prescription drugs, but held that due to "common sense 'difference", commercial and non commercial speeches receive different degree of protection and can thus be regulated in some ways. Through Board of Trustees of State University of New York v.

Fox, 492 US 469 the US Supreme Court modified Central Hudson test and held that withinthe context of commercial speech government officials are not required to choose least restrictive alternative for their regulations, Court must only find that there is a "reasonable fit" between the government's end and means chosen to meet those ends, illustrating that approach, the Court sustained a ban by a State University of most private commercial enterprises on the campus, upholding action against a woman who desired to paddle "Tupperware" at meetings held in dormitory room. It was held that a government restriction on commercial speech is valid even if it goes beyond the least restrictive means to achieve a worthy interest of the government.

' In Metro Media Inc v. City of San Diego, 459 US 490 restriction on commercial billboards for a combination of aesthetic and traffic safety reasons survived the central Hudson test and cities were allowed to make an exception for on site advertising. It was explained that billboards are designed to distract the drivers and limiting such rights directly advance substantial government intent.

15. In Central Hudson Gas and Electric Corporation (supra), the US Supreme Court, with a majority of 8-1, overruled the Court of Appeal of New York decision in favour of a prohibition, and held that since it restricted all promotional advertising regardless of its effect on electricity use (for dampening the sale whereof the ban was in fact imposed), (emphasis supplied), it violated the First and Fourth Amendments. However, the reason, rationale and grounds elucidated by the Court for its decision may be of some relevance to the case in hand.

' The Court thus held that: "Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted (emphasis supplied) governmental regulation, and laid down prescription for determining the validity of the restriction on such speech as follows: ' For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, or it provides only ineffective and remote supi)ort for the Government's purpose and whether it is not more extensive than is necessary to serve that interest, as the State cannot completely suppress information when narrower restrictions on expression would serve its interest as well. And found that the link between the advertising prohibition and the state's interest in ensuring fair and efficient rates is too tenuous and speculative to justify the advertising ban, and the prohibition against advertising.

' It was held that the distinction between commercial speech and other forms of protected speech does not justify the suppression of commercial speech in order to influence public conduct through manipulation of the availability of information. And that a state cannot lawfully seek to suppress information about a product in order to manipulate a private economic decision that the state cannot or has not regulated or outlawed directly, (emphasis supplied) and that they (the Court) have reviewed the regulation with special care as the same entirely suppress commercial speech in order to pursue a non-speech related policy. The Court opined that where the perceived harm associated with greater electrical usage is not sufficiently serious to justify direct regulation, surely it does not constitute the kind of clear and present danger that can justify the suppression of speech.

' The Court further held that the Commission's order suppresses speech that in no way impairs the State's interest in energy conservation.

' On the other hand, the judgment proceeded to allow the State to implement more carefully drawn restrictions. Their lordship also permitted the Commission to attempt to restrict the format and content of Central Hudsons' advertising and to impose reasonable "time, place, and manner" restrictions" (emphasis supplied).

16. Undoubtedly no one can be deprived of his fundamental rights. Such rights being incapable of being divested or abridged. The legislative powers conferred on the State functionaries can be exercised only to regulate these rights through reasonable restrictions, and that too only as may be mandated by law and not otherwise. The authority wielding statutory powers conferred on it must act reasonably (emphasis supplied) and within the scope of the powers so conferred.

17. It is certainly not easy to define "reasonableness" with precision. It is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However, factors such as the nature of the right infringed, duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that "reasonable" implies intelligent care and deliberation, that is, the choice of course that reason dictates. For an action to be qualified as reasonable, it must also be just right and fair, and should neither be arbitrary nor fanciful or oppressive.

18. However, in examining the reasonableness of any restriction on the right to freedom of expression it also should essentially be kept in mind as to whether in purporting to exercise freedom of expression one is infringing upon the aforesaid right of others, and also violating their right to live a nuisance free life, as to whether one's right to time and space is being violated. It should also be kept in mind that none can be forced to listen or watch that he may not like to, and that one cannot be invaded with unsolicited interruptions while eagerly watching or listening to something of his interest. The State is not supposed to remain oblivious of such violation/invasions and cannot detract from its obligation to regulate the right to speech when it comes in conflict with the right of the viewers or listeners. It was perhaps keeping in view, inter alia, the foregoing that the framers of our Constitution, though secured the right to free speech, but have not left the same unchecked, and have provided for reasonable restriction as postulated under Article 19 of the Constitution. Indeed the State has a compelling interest in regulating the right to speech when it comes in conflict with the rights of other individuals, or other societal interests.

19. It is indeed true that freedom of expression being a natural fundamental right cannot be suppressed unless the same is being exploited and/or is causing danger to, or in it lies the imminent potential of hurting public interest, or putting it at stake directly, and also that the anticipated danger should not be remote, conjectural or far fetched. It should rather have proximate and direct nexus with the expression.

20. However it may be kept in mind that in a civilized and democratic society, restrictions and duties co-exist in order to protect and preserve the right to speech, it is inevitable to maintain equilibrium, and for that to place reasonable restriction on this freedom in the maintenance of "public order" and unless the restriction strikes a proper balance between the freedom guaranteed by Article 19 of the Constitution and the social control permitted thereby, it must be held to lack the attributes of reasonableness. Government should therefore strike a just and reasonable balance between the need for ensuring the right of people of freedom of speech and expression on the one hand and the need to impose social control on the business of publication and broadcasting.

21. The restrictions under challenge in the present proceedings are contained in Rule 15 of the PEMRA Rules, 2009 and in clause 10.4 of the licenses issued by respondent No, 1 in favour of appellants Nos. 2, 4, 6, 8 and 10. Rule 15 prescribes as follows:

(1) Programmes and advertisement content.- (1) The contents of the programmes and advertisements which are broadcast or distributed by the broadcast media or distribution service operator, shall conform to the provisions of section 20 of the Ordinance, these rules, the code set out in the Schedule-A and terms and conditions of the licence.

(2) The programmes shall also conform to the provisions of the Motion Pictures Ordinance, 1979 (XLIII of 1979), the rules and code of conduct made thereunder, whereas the advertisements shall also conform to the TV Code of Advertising Standards and Practices in Pakistan and Advertisement Code issued by the Authority.

(3) During a regular programme a continuous break for advertising shall not exceed three minutes and duration between two such successive breaks shall not be less than fifteen minutes.

(4) The licensee shall maintain a record and register of the programmes being broadcast or distributed by him and shall, for a period of not less than forty-five days, preserve such programmes.

' Whereas clause 10 of the license stipulates as under: ' Clause 10.4. The maximum period of an advertisement break during Prime Time, that is, between 1900 to 2200 hours Pakistan Standard Time, shall not be more than 2 minutes to a minimum of ten minutes of programme."

The above noted rule and clause merely regulate duration of advertisements broadcast by television channels, and the spacing between advertisements slots and programme contents. The same in no way prohibits or even restricts the contents of any broadcast, nor even relate to such content, either commercial or otherwise, and therefore in no way may be described as being invasive on the right to free speech and freedom of expression. On the contrary the above regulations protect time and space for core free speech and public discourse, and thus facilitate and secure propagation of social, political and economic ideas and furtherance of literature and human thought, and also the transmission of entertainment. The above provision also protects and safeguards the viewer's right to optimum viewing experience and quality programme being infringed, as the duration of advertisement is inversely proportional to the quality of the viewing experience. But presently content feeds are on television interspersed with advertisements, often repeated several times. Broadcasters attempt to lengthen commercial breaks by putting more advertisement to maximize revenue irrespective of whether the viewer is willing or unwilling. This frequency and volume of advertising causes lack of continuity in programming and significantly reduces the quality of viewing experience. The duration of advertisement, their placement, either with or in between programmes, and the frequency of their occurrence are closely linked to the quality of consumers viewing experience.

22. Indeed the viewers watch television in expectation of content feeds and not advertisement. But they have no option of skipping advertisement; this adversely affects the quality of transmission. It is also a matter of fact that once television is in home it is difficult to protect unwilling viewers from encountering advertisement they don't want to watch other than by keeping the television set turned of all the time. Viewers want to enjoy the programme content and pay for it to the cable operators and bear the cost of their television set and for other necessary gadget required, they also pay for the electricity consumed in watching TV and take out time for watching programme of their interest, pursuit and pleasure, but are also exposed to the advertisements.

23. It was to meet the above situation and to regulate rather enable the television broadcasters to achieve the goals as set out in the preamble to the PEMRA Ordinance, 2002 (such as improvement of standard of information, education and entertainment and widening the choice for news current affairs etc) and to meet the mandate of the provisions of subsections (3) and (5) of section 19 of the PEMRA Ordinance, which provides for prescribing terms and conditions governing the transmission .Permitted under the licence issued under the said provision, and also to devise a code of conduct for programmes and advertisements for compliance by the licensees, that the subject rule was framed, and clause 10.4 which is in conformity with the said rule, was incorporated.

The said rule has been framed also under the mandate as contained in section 39 of the PEMRA Ordinance, 2002, which empowers respondent No, 1-authority, to make rules to carry out the purpose of the Ordinance, more particularly to prescribe terms and conditions of the license issued under the said Ordinance. The subject rule and clause are also in conformity with the provision of Article 18 of the Constitution, whereby, though a right to conduct a lawful business has been protected, but it has also been provided that qualification for the same may be prescribed by law, and has also been made permissible to regulate any trade or profession by a licensing system.

24. Since, as noted earlier, the subject regulations protect time and space for core free speech from being invaded and encroached by excessive advertisements, and thus facilitate and secure propagation of social, political and economic ideas and furtherance of literature and human thought, and also ensure that the viewer's right to optimum viewing experience and their right to choice in that regard is not transgressed, the same rather than impeding free speech, protects such freedom. Even otherwise, on account of its inherent nature, jurisprudence has conferred a subordinate position to commercial speech and provided to it a limited measure of protection.

25. It is in order to create a balance between freedom of speech and social control, that quantitative regulation is widely prevalent the world over. In India rule 7(11) of the Cable TV Network Rules, 1974 permits a maximum of ten (10) minutes for commercial advertisements in an hour, which is equivalent to the ceiling under challenge. The ceiling under question also meets the criteria as laid down by Central Hudson Gas and Electric Corporation (supra) as the same directly serves the purpose of the PEMRA Ordinance as laid down in its preamble and the relevant provisions as discussed earlier. The same, as discussed above also .Protects time and space for core free speech and also works for the benefit and in the interest of the viewers/consumers and the enforcement thereof is inevitable to mitigate the situation as discussed in para 23 herein before. It may be recalled that in Central Hudson case the US Supreme Court has in fact permitted the concerned authority to restrict the content of advertising and to impose reasonable time, place and manner restrictions.

26. The main emphasis of the learned counsel for the appellants has been that limiting the duration of advertisement breaks would result in revenue losses for the appellants whose only source of income is advertisement fee and that such would make the sustenance of their business almost impossible. In the first place, we have noted from the eleven statements of the proposed contents submitted by the appellants along with their licence applications, (one of which statement is annexed to the appellant's memo of appeal and the remaining are annexed to the concise statement of respondent No, 1), that for one of the channels the time proposed for advertisements is nine percent (9%), such time sought for four other channels is twelve percent (12%), for the other four it is fifteen percent (15%) and it is just for two channels that the time sought for advertisements is twenty percent (20%) whereas the time prescribed through the subject rule and clause 10.4 comes to 16.67%. Furthermore the time restriction under challenge has been in vogue since the year 2002, firstly through sub-rule 4 of rule 24 of the PEMRA Rules, 2002 and thereafter under the present rule and therefore it cannot be said that while preparing their feasibility and evaluating the viability of their business the appellants would not have taken into account the above time restriction and especially when, they have themselves proposed the duration of advertisement breaks, which are overwhelmingly in compliance with the said regulations. In fact, as noted earlier, in relation to majority of channels the advertisement breaks/slots proposed were shorter than permissible under the relevant rule. It is also crucial to note that alofg with their applications and the said proposals the appellants have also submitted their respective feasibility reports and therefore, it now does not lie in their mouth to seek immunity for violating the statutory quantitative restriction on the pretext that the same would result in financial losses to them.

27. It is also wholly misconceived and untenable to plead that the appellants were compelled to accept clause 10.4 as a term of their respective licences, as in the first place, the said clause is compliant of the relevant law and rules under which they applied for the licences, and secondly although the licences were granted to the appellants between April 2004 to Jan 2008, however, at no point in time till they received the impugned notice, the appellants raised any objection to the impugned clause and it was only after they have been served with the impugned notice dated 07.04.2010, that the appellant No, 1, the representative of the other appellants, objected to the impugned regulations.

28. The appellants have applied for and obtained licences under the PEMRA Ordinance, 2002, rules framed where- under and in consonance therewith, prescribe the subject quantitative regulations, and the licences which they so obtained also contained such restriction, they cannot now seek to violate the same on the pretext that compliance therewith would cause losses to them, more so when, as stated above, the appellants planned their broadcast business and submitted their feasibility to PEMRA for their licences, the above regulations were in vogue. In fact, as noted earlier also, the time regulation as contained in rule 15 of the PEMRA Rules, 2009 are in force since before the framing and enforcement of the said rules, as sub-rule (5) of rule 24 of the PEMRA Rules 2002 also prescribed similar restriction. They must therefore have found the launching of their channels feasible and viable with the subject quantitative regulations and thus agreed to abide by such restriction, which also was/is incorporated in their respective licences by way of clause 10.4. Even otherwise, absolutely nothing has been placed before us to show or even slightly suggest that complying with the subject regulation and honouring their contractual obligation would result in any loss to them at all. In any event, the statutory requirement and contractual obligation as herein cannot be made subservient to the commercial interest of a business enterprise.

29. The learned counsel has also submitted that the TV channels are not being treated fairly as unlike the TV channels the print media/newspapers are free to print and publish as many advertisements as they wish. However, in so arguing, the learned counsel has ignored the fact that newspapers and TV channels are two different mediums, firstly, unlike newspapers, TV channels for their transmission have to use airwaves which constitute public property, whereas the right guaranteed by Article 19 of the Constitution though secures right to receive and disseminate information but does not guarantee use of public property, which can be availed only if the law permits and to the extent and in the manner prescribed thereby. Since there is a paucity of airwaves/frequencies, it is imperative for the State to ensure that the same are used in the best public interest, and the interest of the viewers/listeners being paramount, have precedence over the interest of 0 broadcasters. There is another distinguishing aspect of the matter in as much as a reader or a subscriber of a newspaper has a choice to either read or ignore any or all the advertisements the newspaper may carry, whereas a television viewer does not have such a choice. He is in fact a captive audience and has either to watch the advertisement which .Intrudes into his viewing pleasure and causes disruption, or to switch off the television. The television viewer in our country, more often than not, do not even get a respite by switching over to some other channel as, and perhaps by design, almost all the channels have synchronized transmission of advertisements, and therefore cannot avoid watching advertisements by even switching over. We may observe here that increasing the duration of advertisement may therefore cause depletion in the number of viewers, adversely impacting the amount of revenue generated per viewer. As regards the contention that though Pakistan Television Corporation (PTV) is financed and funded through the televisions fee charged by the Government, but no such support is extended to the appellants, suffice to say, that PTV is a national strategic organization with its own dynamics and no parallel, in the present context, can be drawn between it and the appellants.

30. In view of the foregoing, we are of the opinion that the learned High Court has rightly upheld the legality and propriety of the subject regulations and thus declined to interfere in the matter.

31. The petition before the High Court was also liable to be dismissed for suffering from laches as the appellants have challenged the restrictions that were in vogue since the year 2002, as late as on 17.06.2010. The petition was also not maintainable as it was filed against a show cause notice validity issued under the mandate of law, and that too without availing the opportunity of hearing offered thereby. Furthermore the appellants had also bypassed the remedy of appeal available under section 38 of the PEMRA Ordinance. The appeal in these circumstances is dismissed.