Free-to-air broadcaster etv has won its court bid to prevent Sentech from handling the controversial conditional access controls in set-top boxes.
Acting judge Gerrit Pretorius of the South Gauteng High Court yesterday handed down the much-anticipated ruling and said communications minister Dina Pule's May decision to allow Sentech to handle set-top box (STB) controls was "unlawful and of no force" and set it aside.
Etv took the minister to court over her decision to have state-signals provider Sentech handle conditional access controls for set-top boxes. Its move delayed digital migration as the department was unable to issue a tender for subsidised decoders, or launch digital TV commercially, until it knew which way the court would rule.
It is not yet clear how the ruling will affect SA's digital migration plans.
Pushed back
SA is migrating to digital TV using the European DVB-T2 standard and turned on the first phase in the Karoo in September. Nation-wide commercial launch was scheduled for this month, but has been pushed into some time next year.
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.
The department has since conceded that this date is out of reach, and is instead working towards meeting the International Telecommunication Union's mid-2015 deadline.
Around 11 million homes will need decoders to convert the new signal so that it can be received by analogue televisions. The state will subsidise about 70% of boxes for around five million homes, as well as installation and aerials, at a cost of R960 a home.
However, while 37 companies bid to make the subsidised box in a tender that should have been awarded in October, the process was delayed because of etv's bid. The broadcaster argued that Pule's May decision to have Sentech assume responsibility for set-top box (STB) controls was unlawful. The broadcaster argued that only the South African Broadcasting Corporation (SABC) and free-to-air broadcasters should be responsible for controls.
No power
Pretorius said that, subject to the regulatory powers of the Independent Communications Authority of SA (ICASA), the SABC and other free-to-air broadcasters are responsible for the set-top box control system.
The conditional access system is meant to stop subsidised boxes from being stolen and used outside of SA's borders as it is a way of ensuring that only authorised users have a means to decrypt the digital signal.
In his judgement, Pretorius noted that the department argued that its decision to appoint Sentech was an executive function and not an administrative action, and could not be reviewed on procedural grounds.
Pretorius ruled that the Electronic Communications Act defines the minister's role as one limited to the development of policy, while ICASA should regulate the sector. "It is clear to me that the minister does not have the power to describe to free-to-air broadcasters how they should manage set-top boxes."
As a result, writes Pretorius, Pule had no power to prescribe or make binding decisions relating to set-top box controls. He said the fact that subscriber-owned equipment is used by the consumer does not take away the right of the licensee to prescribe the software on the equipment.
Pretorius also ruled that the department and Sentech had to pay, jointly and individually, the costs of the law suit, which includes the cost of two counsel.
Etv has welcomed the ruling as "another step forward in establishing a strong basis" from which to launch digital terrestrial TV. The department is studying the judgement and sasy it will be in a position to provide detailed comment at a later stage.
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