Pay TV by stealth: The trouble with Kenya’s digital migration process

After purchase of the set top boxes, viewers would be unable to receive the free-to-air channels unless they continued to pay for the subscription channels. Illustration/John Nyagah  Nation Media Group

By Sekou Owino

Just before the 2013 General Election in Kenya, the media was awash with claims by politicians that the election of their respective outfits would herald a “liberation” for the country from the era of analog politics.

The assumption behind this phrase mongering was that the digital television era meant an improvement from the old ways and carried greater promise for the citizenry.

This process of changing from analog to digital broadcasting is known worldwide as digital migration. The advantages are better picture and sound quality and therefore a better experience for viewers. There is the added advantage that the move to digital broadcasting frees part of the analog spectrum to be used for alternative communications

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It is for this reason that many are somewhat lost as to why three Kenyan media companies that operate analog television broadcast outlets (Royal Media Services, the Standard Group and Nation Media Group) sought court intervention to oppose the directive by the Communications Authority of Kenya (CAK) that all analog television broadcasts within Nairobi city and its immediate environs cease with effect from 13th December, 2013 and thereafter be operated from the digital platform.

The issue that needs to be understood is that for analog broadcasters, the transition to digital broadcasting means that they cease to operate as broadcasters in the sense that they will no longer have the right to broadcast their programming directly to the viewer as they have done under the analog system.

Under the digital system, there is a middle channel between the content producer and the viewers. This middle channel is known as the digital signals distributor (DSD). It is the DSD to whom the producer of the content sends the signal for ultimate broadcast to the viewers at large.

In other words, the DSD operates as an intermediary between the producer of the content and the viewers, and the producer depends on the arrangement with the DSD to ensure that the programming is received by the viewers in the form and manner in which it was produced. It is theoretically and practically possible therefore for the DSD to censor or even decline to relay the content altogether.

On the part of viewers, the digital migration is not meant to affect them negatively. On the contrary, as stated earlier, the public should benefit from clearer pictures and sound.

However, the reality is that most of the televisions in most of Kenya’s homes are not technologically enabled to receive digital signals. Therefore, any person who needs to watch television subsequent to the migration needs to have purchased a television set that is already enabled for digital signals or have acquired a universal set top box that enables an analog television set to receive the digital signals. Of course, this comes at a cost.

This concern of an intermediary was the first complaint of the three media organisations that went to court.

They reasoned that there was a clear and present risk of interference with their freedom to broadcast their content uncensored, bearing in mind that the government has only given digital signal distributor licences to a subsidiary of a Chinese company and another company owned by the government-owned public broadcaster.

The media companies argued that this meant that they either had to go with the foreign- owned company or a subsidiary of a government agency, and that this carried risks of censorship contrary to the constitutionally established freedom of the media under article 34 of the Constitution.

The three media companies therefore petitioned the High Court to suspend the intended migration date of December 13,2013 on the grounds of risk of censorship. This can be said to have been in the primary interest of the media organisations.

However, it is also important to understand that while the risk of censorship may be a primary concern for media enterprises and journalists, the ultimate risk inherent in a media that is not free is to the general public’s freedom of information under the Constitution.

Second, the petitioners argued that the issue of the set top boxes was inimical to the public interest and that of consumers for a number for reasons. The first of these reasons was that there weren’t enough such boxes available in the country to facilitate uptake by enough consumers of television broadcast services in time for the migration date.