Free-to-air broadcaster etv says the Department of Communications misunderstands several issues it raised in its initial affidavit around set-top box controls.
Etv has taken the department to court in a bid to overturn minister Dina Pule's decision to appoint Sentech to handle set-top box (STB) controls. The matter, which is set to be heard tomorrow, could delay the launch of digital TV, which is planned for the end of the year.
The broadcaster has argued the minister erred in her decision to appoint Sentech, as the minister went against a previous agreement that etv and the South African Broadcasting Corporation (SABC) handle controls. Sentech has previously failed to properly encrypt signal, and using the state signal distributor would raise costs.
The department has hit back, indicating it is surprised by the application, as the parties had been in talks and had reached a level of agreement.
Missing the point
In the free-to-air broadcaster's replying affidavit, COO Bronwyn Keene-Young argues the department misunderstands the nature of the controls, and that it has not understood the issue raised in etv's initial filing.
Much of communications DG Rosey Sekese's responding affidavit shows a "fundamental" misunderstanding of the nature of controls, argues Keene-Young. Sekese focuses on protecting the state's investment in the decoders, instead of the needs and requirements of broadcasters and viewers, she adds.
The state has set aside around R2.45 billion to subsidise as much as 70% of the cost of five million boxes for the poor. Around 11 million households will need decoders to continue watching TV on analogue sets.
Risky business
Keene-Young says if there are no controls for all decoders, free-to-air broadcasters' business will be at risk, as they will not be able to make sure all viewers have a uniform experience of the digital platform.
The DOC has argued the control system only applies to subsidised boxes as the state wants to stop these from being stolen and used outside of SA. Keene-Young says the system cannot be limited to subsidised boxes, as the South African Bureau of Standards specifications make it clear the control will be universal.
Keene-Young says letting Sentech handle the system will cost free-to-air broadcasters far more than expected. "The approach of the minister and Sentech appears to be that Sentech is responsible for the STB control system and the FTA broadcasters must simply pay whatever is asked of them. That cannot be correct as a matter of logic or law.
"The key unresolved issue between etv and the SABC on the one hand and Sentech on the other relates to the identity of the party who is legally responsible for STB control, including contracting with the STB control vendor and appointing any agents necessary in relation to STB control."
SABC and etv are worried about who has the power to take decisions and sign the necessary contracts to implement control software, says Keene-Young. While the broadcasters are happy to have Sentech manage the system, they want to own the software keys and make the primary decisions, she says.
"This would give the FTA broadcasters the freedom to ensure that STB control is run properly and cost-efficiently."
Leaving Sentech to run the system will leave the broadcasters with no power to act if Sentech fails to perform, argues Keene-Young.
No legal basis
Keene-Young writes that the department's responding affidavit does not provide for a statutory backup for her decision to appoint Sentech, referring only to the International Telecommunication Union (ITU) agreements.
However, the ITU agreements do not provide any lawful basis for the department to select Sentech to handle the set-top box controls, says Keene-Young. "The reliance by the minister on the ITU agreements is misconceived."
Keene-Young adds she is unaware of any provision in the ITU agreement that deals with controls. "I, therefore, persist in my allegation that the minister had no lawful basis upon which to instruct Sentech on 10 May 2012 to assume responsibility for the STB control system."
The department and Sentech's opposition to etv and the SABC handling the control system is "legally unsustainable", writes Keene-Young.
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