Broadcasters are waiting for the outcome of etv's urgent application against the communications regulator to suspend the implementation of the digital TV migration regulations.
Last week, the commercial free-to-air television broadcaster lodged an urgent interdict with the Gauteng High Court. It wants to stop the implementation of the regulations that govern the conversion of the country's analogue broadcasting signal to digital. The conversion process started on 1 November last year and is now scheduled to end on 30 April 2012.
Pay-TV services MNet and MultiChoice, which have been cited among the respondents, have indicated they would not oppose the urgent interdict. Communications minister Siphiwe Nyanda's office could not say if it would oppose the application or not.
Other parties cited as respondents, including national signal distributor Sentech, the South African Broadcasting Corporation, Orbicom, Electronic Media Network and Trinity Broadcasting, have not made their official positions clear. However, lawyers working for them have said the recommendation is not to oppose the urgent interdict.
“This is really a fight between etv and ICASA [the Independent Communications Authority of SA],” says Karen Willenberg, head of regulatory affairs for MNet. “It would not be useful for us to oppose the urgent interdict now. We are disappointed that it looks as though a delay may now occur and we are ready for the switch to digital.”
Expensive exercise
Various lawyers representing the other respondents, who are still mulling their positions, agree with Willenberg's statement and also point out that etv has been opposed to the regulations for some time.
“I am not surprised that etv has taken this position; they have been concerned about the regulations and have been consistent in pointing out that they are sloppy,” one lawyer says.
Another says etv is facing the same dilemma over the conversion from analogue to digital that its counterparts in other countries are facing.
“For free-to-air TV stations, the conversion is a pure cost exercise. Etv has often stated it does not see the business case in the conversion,” the lawyer says.
Lawyers also say the issues can be solved fairly quickly if etv and ICASA are prepared to meet, but if they are not, then the roll out of digital terrestrial TV could be delayed by up to several years.
“In a worst case scenario, we are seeing a court case that could run for a year and then, if etv wins, another year for ICASA to rewrite the regulations. This means we will be right out of our timeframe to implement DTTV and there will be a corresponding increase in costs and other factors,” a third lawyer says.
2015 deadline
The International Telecommunications Union has given SA until 2015 to convert its terrestrial broadcasting system (terrestrial broadcasting covers TV signals that are not transmitted via satellite or cable) to the digital format as part of a global trend.
Should SA not meet this deadline, it would have no basis to seek protection from broadcast signals transmitted from neighbouring countries from interfering with its analogue transmissions.
In her founding affidavit, etv chief operating officer Bronwyn Keene-Young attacked the regulations that were published by ICASA on 3 July. She said they were characterised by: “Procedural unfairness; a failure to consider relevant information; errors of law; irrationality; unreasonableness; and acting under unlawful dictation.”
Keene-Young also targeted the Joint Spectrum Advisory Committee, which is being set up in terms of the regulations, for not having a clear manner in which to reach a decision.
“Given that the committee is a consultative forum for all broadcasters and signal distributors affected by the regulations, as well as ICASA, this deficiency is significant,” she says in her affidavit.
Etv also bemoans the fact that the regulations essentially force it into a commercial agreement with Sentech, whose tariffs are unregulated.
Keene-Young also points out that the regulations have been introduced on a retroactive basis. This means they were in force for eight months before they were finalised, and that technically etv and other broadcasters could be in contravention and face fines of up to R500 000, she notes.
She also accuses ICASA of ignoring etv's recommendations when the regulations were being drafted. Keene-Young says ICASA failed to hold public hearings when the final draft was drawn up, even when there were substantial differences with the earlier versions.
The High Court is due to hear etv's urgent application on 15 September.
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