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Court ruling clears way for digital TV

Johannesburg, 25 Jun 2015
Etv argued to have minister Faith Muthambi's amendments set aside, including a provision in the policy that says government-subsidised set-top will not have the capability to encrypt broadcast signals.
Etv argued to have minister Faith Muthambi's amendments set aside, including a provision in the policy that says government-subsidised set-top will not have the capability to encrypt broadcast signals.

Etv's legal application, seeking communications minister Faith Muthambi's latest iteration of the Broadcasting Digital Migration policy be amended to protect free-to-air broadcasters, has been dismissed with costs.

The free-to-air broadcaster took the minister to court over set-top box controls last month, in legal action reminiscent of its 2012 court victory. The latest matter was heard on 26 and 27 May by the North Gauteng High Court.

The broadcaster approached the court to have a provision set aside in the policy that says government-subsidised set-top boxes (STB) would not have the capability to encrypt broadcast signals. It also wants an amendment to the provision that says the control system will not be mandatory.

The judgement effectively clears the way for SA to proceed with digital migration, some two weeks after the country missed the International Telecommunication Union's 17 June deadline for migration.

In light of the court case, the Universal Service and Access Agency of SA held off awarding orders for set-top boxes until the legal matter was decided, as it was concerned the tender may have to be changed, depending on which way the court ruled.

About 65% of the 13 million homes with TV in SA rely exclusively on free-to-air broadcasting services. A turn-on date for digital TV has yet to be announced.

Etv argued Muthambi's March amendment to the Broadcasting Digital Migration policy was contradictory, as it went against previous Cabinet statements that government respects the "right of individual broadcasters to decide for themselves whether to encrypt their signals".

The free-to-air broadcaster wanted the court to set aside a provision in the policy that says government-subsidised set-top boxes (STB) will not have the capability to encrypt broadcast signals. It also wanted an amendment to the provision that says the control system will not be mandatory.

Etv COO Mark Rosin said the provisions are contradictory as one "purports to allow broadcasters the right to make their own decisions on the question of encryption", while the next provision "renders this right entirely nugatory and meaningless".

Legal argument

The broadcaster's legal argument was based on a 2012 decision in which acting judge Gerrit Pretorius ruled in the South Gauteng High Court former communications minister Dina Pule's decision to allow Sentech to handle set-top box controls was "unlawful and of no force" and set it aside. This had the effect of stalling digital migration, with broadcasters at loggerheads over controls - an impasse former minister Yunus Carrim tried, and failed, to solve.

Government's ultimate solution to the impasse was the amended policy. Under this gazette, Muthambi mandated there would be a control system to stop subsidised boxes working on non-SA networks, and this "robust" control system will benefit those who own TVs, because it will ensure they continue to receive free-to-air broadcasts. However, this control system does not amount to encryption.

Etv argued the 2012 ruling precluded the minister from making decisions on certain key critical technical issues that affect free-to-air broadcasters.

"Etv considers it essential that it be able to encrypt its broadcast signal primarily because this would prevent non-compliant STBs from receiving digital broadcast signals, thereby, ensuring a uniform and reliable viewer experience. Without a fully conformant platform, broadcasters such as etv would, in the future, likely be unable to provide broadcasts in high-definition," it said.

Muthambi's policy also met with criticism from other stakeholders, including the Right to Know (R2K) campaign, which argued including a control system would be used to "squeeze the poor and force them to pay for essential access to information".

In addition, the Democratic Alliance (DA) called the changes to the policy "dubious" and "last minute". It notes the policy is now "markedly different" from the one approved by Cabinet in 2013.

The official opposition said Muthambi's "ill-intentioned" changes would stifle competition in the free-to-air market. In a statement, the party said the changes are not in the best interest of the industry or South African viewers.

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