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Digital TV: 'no place to hide'

Johannesburg, 26 Jun 2015
The High Court decision means government has no more excuses to stall on digital TV migration, say industry watchers.
The High Court decision means government has no more excuses to stall on digital TV migration, say industry watchers.

Yesterday's North Gauteng High Court ruling, which dismissed free-to-air broadcaster etv's application to force the state to include encryption in decoders, means government has no place to hide anymore.

This is according to industry pundits, who say the most positive aspect of yesterday's ruling is government has no more excuses and must move ahead with digital migration. The decision comes about two weeks after the country missed the International Telecommunication Union's 17 June deadline for migration.

Etv's legal application sought to have communications minister Faith Muthambi's latest iteration of the Broadcasting Digital Migration policy amended to include encryption software, in a bid to protect free-to-air broadcasters.

Judge Bill Prinsloo found Muthambi's amendments were rational, as encryption would add additional cost to the already expensive digital migration process, and that she acted lawfully when publishing the new Broadcasting Digital Migration policy. He also questioned etv for changing its mind on encryption, noting that - in 2008 - it had been against signal scrambling.

Prinsloo also noted Muthambi's version of the policy did not differ from the one proposed by her predecessor, Yunus Carrim, which he says, in any event, did not become law. Etv was ordered to pay the costs for four of the respondents, as well as two counsel each.

Muthambi has welcomed the decision, saying: "The ruling by the North Gauteng High Court will now allow the digital migration process to progress and be concluded as soon as possible so that the benefits can be realised."

Digital reality

"The most positive aspect of this ruling is that the country can now move ahead with digital migration," says World Wide Worx MD Arthur Goldstuck. "While the decision may not be in the best interests of competition, it means there are no more excuse [for government], as this is one factor that was used as an excuse to hold up the process. It takes away a huge stumbling block."

ICT commentator Adrian Schofield agrees the court ruling removes any hurdles in the way of officially launching digital TV and freeing up additional spectrum. The so-called digital dividend - which will be made available when SA turns off inefficient analogue signal - can be used to expand broadband coverage in rural areas. "Please can we now have actual rollout happening day-by-day and people switching to digital TV."

Schofield says the issue of set-top box controls, which held up migration since the end of 2012, had been an excuse for doing nothing. "To have a lengthy legal process running has given government the time to make sure it is more ready behind the scenes. This should have been done and dusted."

The court noted Muthambi was the only one of the 16 respondents to object to the hearing being held on an urgent basis.

Although there is "no more hiding for government" there are still questions as to how rollout will happen, says Schofield. He notes the state now needs to "push the button" on placing orders for decoders and indicate when they will be in the hands of the viewing public, and how long it will take the post office to distribute the boxes.

The Universal Services and Access Agency of SA, which awarded the tender to manufacture five million free set-top boxes to all 26 bidders, has been awaiting an outcome on the court case before placing orders, which in total will be worth at least R3 billion.

Sekoetlane Phamodi, coordinator of the SOS: Support Public Broadcasting coalition, says Muthambi must now deal with several key issues "lest we continue to lag behind and consumers in SA are encumbered with a technology that doesn't meet their needs".

These, says Phamodi, include detailing how consumers will be protected from cheap, grey imports that do not conform to the South African Bureau of Standards criteria, and then champion a digital broadcasting ecosystem. "It's about ensuring that government invests the many millions wisely by making sure we distribute an STB that provides an upgrade path to premium content and competitive content offerings across both the FTA (especially) and subscription markets - neither of which are available without an encryption facility."

Free TV worries

However, Phamodi is concerned the ruling further entrenches MultiChoice and the SABC's monopoly. He says the judgement has "dealt a devastating blow to the future of meaningful access to diverse and quality broadcasting services for the people of South Africa in the digital age".

Etv had argued encryption is necessary to protect broadcasters from having their content pirated. The SABC and MultiChoice countered this, saying no free-to-air broadcasters globally offer encrypted services, there are other means to protect against privacy, and encryption will add to the cost of digital migration.

Democratic Alliance shadow minister of telecommunications and postal services Marian Shinn is waiting to see if etv plans any further action. Etv declined to comment until after it had time to read the judgement.

Shinn concurs the ruling entrenches a monopoly and is concerned the ruling against encryption will deal a death blow to smaller and aspirant free-to-air broadcasters. Goldstuck also argues allowing encryption would have made it easier for new entrants to broadcast on the platform, and the ruling seems to protect vested interests.

However, Schofield notes TV can already be pirated, and there have been no indications from either the SABC or etv that anyone has been prosecuted for this. "Anyone who wants to record and retransmit has been able to do so for the past 30 years. I've never understood the argument that you need to encode free-to-air content. If it's free-to-air, it's free-to-air."

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