Free-to-air broadcaster etv has filed papers against communications minister Dina Pule over her decision to have state-signals provider Sentech handle conditional access controls for set-top boxes.
The pending lawsuit, which aims to overturn Pule's decision, because it claims it is illegal, could delay SA's digital television as etv argues the matter must be sorted out before migration can start.
The papers were filed in the South Gauteng High Court just weeks before SA is set to launch digital television in the Karoo, on 26 and 27 September. Etv intends having the matter set down for hearing on 16 October, because of the urgency involved.
Etv's notice of motion, lodged last Wednesday, argues that Pule's May decision to have Sentech assume responsibility for set-top box (STB) controls should be set aside as it is unlawful. The broadcaster argues that only the South African Broadcasting Corporation (SABC) and it should be responsible for controls.
“The question of which parties are responsible for managing set-top box controls has to be finalised well before the commencement of digital migration. Without the issue being determined, it will not be possible to have set-top boxes manufactured, let alone distributed,” argues etv COO Bronwyn Keene-Young in her founding affidavit.
Cannot be done
Keene-Young argues that the turn-on deadline cannot be met as decoder manufacturers have yet to be appointed, and the Independent Communications Authority of SA (ICASA) has yet to wrap up its digital migration regulations.
Set-top boxes will be required by about 11 million households for analogue televisions to continue picking up signal after SA switches over to digital TV. Turn-on is scheduled for the middle of next week in the Karoo, with turn-off by the middle of 2015 at the latest.
The department says the legal process has no bearing on its preparations for rolling out digital TV, only the manufacturing of STBs, which it notes are key. A spokesman says it is busy with what it can do while considering the challenge.
Government has set aside R2.45 billion to subsidise as much as 70% of the cost of the box, estimated at R400, for about five million houses. The boxes will have controls built in so that they cannot be used outside of SA's borders in the event that they are stolen and will stop grey imports from picking up signal.
Several turn-on, and -off, deadlines have been missed since Cabinet decided to implement digital TV based on the widely-used European DVB-T standard in 2006. Last January, the department decided to move ahead with DVB-T2 and set November 2013 for turn-off.
Harmful choice
Keene-Young argues that the minister's decision will mean that the SABC and etv will be forced to pay Sentech any costs it incurs, as well as additional mark-ups that it imposes. She adds that, after analogue is turned off, the SABC and etv will only be able to broadcast to those people who have acquired decoders.
“The costs paid by etv and the SABC in this regard will significantly exceed the costs to etv and the SABC if they were instead to proceed with managing the set-top box control system themselves and appoint their own software vendor.”
Etv's attorneys, Rosin, Wright, Rosengarten, argue that the broadcaster will suffer “substantial prejudice”, unless the department's decision is withdrawn.
Etv and the SABC agreed in 2008 that they would handle the issue of appointing a service provider to develop the control. The DOC had previously asked the terrestrial broadcasters to work together around the issue of conditional access and there have been various tenders for the system.
Keene-Young adds that the broadcasters will not be able to work out whether the system is appropriate, or contains additional and unnecessary features. She says Pule's decision was taken without the SABC and etv being given an opportunity to be heard over the matter.
The affidavit notes that Sentech was appointed, because it has an existing control, but that this system has previously failed. “Sentech is plainly ill-equipped to manage such a system in the present context,” writes Keene-Young.
In February, Sentech was found liable for not stopping people living in Botswana from being able to view channels broadcast in SA by the SABC. The company was ordered to pay etv sister channel, eBotswana, damages dating back almost three years, and has also been ordered to pay the Botswana broadcaster's legal costs.
eBotswana took Sentech to the South Gauteng High Court, last July, arguing that it was not sufficiently encrypting transmission of SABC channels, which was damaging the broadcasting sector in the Southern African Development Community.
World Wide Worx MD Arthur Goldstuck says the fault lines in the digital terrestrial television migration process “are so large that any misstep will set the process back even further”. He says it is essential that the department vigorously adheres to the highest standards of good governance and efficiency.
“Here we see yet another example - in a litany of examples going back to 2008 - that it is not committed to such standards.”
The responding parties are Sentech, which is cited because of the interest it has in the application; ICASA; and the SABC. No order is sought against these parties unless they oppose the court procedure, in which case an order for costs will be asked for.
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