The Court of Appeal has finally made its
ruling on the digital migration issues. Unfortunately, the actual
ruling is not yet available online, but on reviewing the earlier ruling that led to the appeal and the media reports on the same, one can be sure that some earth-shaking precedent has been set by the Court of Appeal.
You may wish to go through our earlier discussions on the real issues behind digital migration,
just to get up to speed with the issues. But in summary, the
government has been trying to migrate TV viewers from the current
analogue system onto the newer and better digital TV system.
The
market structure for digital TV transmission required that one or two
players are licensed as Broadcast Digital Signal (BSD) distributors
while the rest generate the TV content to be relayed by the digital
signal distributors. The regulator, Communication Commission of Kenya,
now Communication Authority of Kenya (CAK) had already issued the
signal distribution licenses to Signet (subsidiary of KBC) and PANG (a
Chinese firm) towards this objective.
With
the two signal distributors in place, the government through CAK
ordered that all analogue transmission be switched off and their
corresponding digital content be channelled through the two entities,
Signet and PANG. The three leading media houses objected. To drive the
point home, they switched off their analogue transmission without
offering their content to the digital distributors and subsequently
petitioned the courts accordingly.
The High Court dismissed their petition,
forcing the media houses to move to the Court of Appeal. In a fairly
surprising judgment to both contenting parties, the Court of Appeal
seems to have granted the media houses all their prayers and gone
further by finding that the regulator, CAK as currently constituted is
not the body expected to regulate broadcasting matters. The
constitution requires an independent body. CAK, given the heavy
presence of government appointees on their board is considered not to
have met the threshold of independence.
Whereas
that may be true, the other finding is rather perplexing. The Court of
Appeal found that given the heavy investment the media houses have made
in the sector, they are entitled to being issued with a digital signal
distribution license to distribute their digital content. In a classic
biblical case of those who have being given more, the court seems to
have tilted towards competition in favour of incumbent players at the
risk of stifling competition.
OVERSTEPPING MANDATE
From the media reports,
it seems the court went further and ordered that the regulator issues
the media houses with the said signal distribution license while
revoking the one issued earlier to PANG. This has caused a stormy debate
on one of the local ICT online forums, with analysts wondering whether the court had not overstepped its mandate by getting entangled into procurement issues.
Whereas
there are genuine concerns about having all TV content being
transmitted by the government-owned broadcaster, there is also little
comfort in knowing that all your TV content is being transmitted by
commercial, private sector entities. A monopoly is a monopoly – whether
government-owned or commercially owned, it will eventually exhibit its bad manners.
Consumer Federation of Kenya (COFEK), one of the interested parties in the petition felt the consumer will benefit from
the postponed migration date that has now been pushed to September.
This supposedly gives consumers time to save funds in order to buy the
requisite Set-Top Boxes (STB).
It
remains to be seen if this will happen, but experience shows that if
analogue TV broadcast remains available as an option, the incentive to
incur STB costs -however small they may become- will disappear and users
will continue in their comfort zone of being analogue. A deliberate
“switch-off” of analogue signals is likely to be the biggest incentive
to switch-over from analogue to digital TV.
So
who really won from the recent ruling? Definitely the media houses,
and they won big time. Specifically, they have won the rights to be
awarded a digital signal distribution license, thus avoiding the need to
transmit their content through the existing Signet or PANG
distributors. How or if this distorts the broadcast market will be a
debate for another blog.
Ironically, the second winner
is the regulator. By finding the regulator not independent as currently
constituted, the Court of Appeal has raised the bar and set new
standards for what it takes for a regulatory agency to be considered
truly independent. There are technocrats within the regulatory body who
would prefer to work under a less politically charged environment,
often precipitated by the majority government appointees. A more
independent regulator would eventually benefit the user as well since
decisions taken would be more balanced to all interested parties as
opposed to being biased towards political expediencies.
Perhaps
the formation of the next board of the Communication Authority of Kenya
may now follow the Judicial Service Commission (JSC) format; whereby
board membership is contributed from stakeholder bodies representing
Government, ICT Professionals, ICT industry, Media, Consumers,
Information Security professionals amongst others. But as the
government heads to the Supreme Court to protest the current ruling, the
digital migration game is certainly far from being over.
Mr Walubengo is a lecturer at the Multimedia University of Kenya, Faculty of Computing and IT. Twitter : @jwalu
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