SA's second satellite television provider and the Independent Communications Authority of SA (ICASA) are at loggerheads over an issue involving the broadcasting of adult content.
TopTV says, in light of ICASA's “glaring departure from the regulated process”, it has the mandate to air Playboy TV and plans to launch three 24-hour subscription adult channels “this month still”.
In a move that sparked a public outcry by, among others, the Film and Publication Board (FPB), the pay-TV provider in September submitted an application to ICASA for the additional channels designated for pornographic material.
TopTV, under its holding company On Digital Media (ODM), revealed last week it had concluded an agreement with Playboy TV, whereby TopTV would provide carriage for three Playboy channels “in the near future”.
While the FPB said yesterday it would fight TopTV's plans to air pornographic material to the bitter end, TopTV says it will go ahead regardless, because it is within its rights to do so.
Senior manager of regulatory affairs at TopTV Thato Mahapa says the channels are by default already authorised, and “we hope to launch this month still, should we complete all our internal launch prerequisite arrangements”.
Mahapa says the channels were automatically approved when ICASA failed to provide a decision to grant or reject the application within the 60-day period allocated by the Subscription Broadcasting Regulations. “Consequently, the channels are now authorised. We will provide further details, including the launch date, as part of [our] comprehensive press release.”
In black and white
Section 3 of the Subscription Broadcasting Services Regulations of 2006, made by ICASA, outlines the rules as they pertain to the authorisation of channels.
According to section 3.4 and 3.5: “(3.4) Within 60 days of receipt of an application made in terms of this regulation, the Authority shall issue a certificate authorising or refusing to authorise the channel. (3.5) If, upon the expiry of the 60-day period contemplated in 3.4, the Authority has not issued such a certificate, the channel shall be regarded as having been authorised.”
These clauses are preceded by an unequivocal assertion that a subscription broadcasting service licensee may not add a channel to its service without authorisation from ICASA, and following a valid application in writing to the same.
TopTV says it followed the required procedure and “corresponded extensively with ICASA”.
“Unfortunately, we never received any substantive response to any of the issues that we raised [with the Authority]. We pointed out the glaring departure from the regulated process and its consequences, and ICASA chose to ignore what we highlighted to them.”
ICASA confirmed that ODM submitted its application in writing, and says it does not wish to deal with the merits and demerits of the application, saying “this will be the subject matter for public hearing”.
ICASA spokesperson Paseka Maleka says: “The authority did receive an application for authorisation of three video channels from ODM and is currently considering same. Indeed the authority received a letter from ODM indicating that, in its view, the 60-day period within which the authority was required to decide on the matter had lapsed and the channels are deemed authorised.”
Maleka says the 60-day period does not apply in this case, because it was not a straightforward application. “In terms of the regulations, we do have to reject or authorise the application within 60 days, but that period doesn't apply here, because there is another issue over and above this. The authority has questions that affect the 60-day period and ODM was issued with a letter saying there will be a public process.”
As far as ICASA is concerned, says Maleka, ODM is not authorised to broadcast the three additional channels. “And it is within the authority's rights to institute further engagements on matters of a regulatory nature to ensure that decisions taken are lawful, reasonable and procedurally fair; and the ODM case is no exception.”
He concludes that it will be “unfortunate” if the operator opts to disregard the public consultation process that is “currently under way and which [ODM] is very much aware of”.
Legal logic
Director in media and telecommunications at Cliffe Dekker Hofmeyr Kathleen Rice says, on strict interpretation of the Subscription Broadcasting Services Regulations, ICASA had a clear obligation to either reject or authorise TopTV's application within the 60-day period. “There is a clear deeming provision that should they fail to do so, the operator is within its rights to consider their application authorised.”
She says there is no provision for an extension of the period in the regulations, which states “the Authority 'shall' issue a certificate...” and “...the channel 'shall' be regarded as having been authorised” as opposed to 'may'.
“There is no leeway in terms of the regulations. What ICASA should have done is formally refuse the application, with written reasons for this, and taken the public process from there.”
The bottom line, says Rice, is that if ICASA did not either reject or authorise the channels within the designated period, TopTV can correctly regard them as being authorised. She says in a case like this: “Failure to provide the decision is fatal.”
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