The case against the Independent Communications Authority of SA (ICASA) by Black Earth Communications (BEC) was dismissed by the South Gauteng High Court this week.
In September 2007, BEC was one of 18 companies that had initially applied for pay-TV licences. However, ICASA only awarded licences to five companies - Walking on Water, On Digital Media, e-SAT, Telkom Media and MultiChoice Africa.
BEC did not receive a licence and applied for a judicial review of the authority's decision.
"We see no reason why ICASA should limit the number of licences in the market, or why they should call a halt to the application process,” BEC director Kubeshni Govender Jones previously said.
Non-compliance
ICASA says it refused BEC a licence to provide a satellite subscription broadcasting service in terms of the reasons document which the court duly considered.
The refusal was made, according to the document, because the applicant failed to comply with certain sections of the Electronic Communications Act (ECA).
The relevant sections state that, in considering the granting of a new commercial broadcasting service licence, the authority must take into account the capability, expertise and experience of the applicant; the financial means and business record of the applicant; the demand for the proposed broadcasting service within the proposed licence area; and the need for the proposed licence within such a licence area, having regard to the broadcasting services already existing in that area.
ICASA adds that, when handing down the judgement, Judge JP Horn said ICASA investigated all aspects of the applicant's demand and need for the proposed service.
“ICASA considered programming and local content regulations and found the applicant to be wanting in that regard. It did not take the decision lightly, but only after weighing up the various relevant factors. It certainly applied its mind to every aspect of the enquiry.”
He also said ICASA reached its decisions fairly, based on rational reasoning; and that the authority had given adequate regard to the requirements of the law and the applications before it.
“This application by BEC was dismissed with costs, which include the cost of two counsels.”
Market diversity
BEC attorney Brendan Hughes previously said ICASA's approach falls foul of the Constitution. He says BEC has a constitutional right to enter the business of broadcasting if it so chooses. "The state can only limit a person's right to disseminate information where it is reasonable and justifiable to do so.”
He added that in the case of terrestrial television and radio there are limited available frequencies and only so many channels can operate without interference, so the state has traditionally limited the number of terrestrial broadcasters.
“In the case of satellite TV, there is no frequency scarcity, so the traditional basis for permitting only a handful of licensed broadcasters is no longer reasonable or justifiable in an open and democratic society."
Jones also said the decision violates the spirit of the ECA, which calls for the inclusion of small and medium-sized enterprises (SMEs) and diversity in the market.
"I don't think you can say that you want SMEs in the market and then not give us a chance to prove ourselves. Of course, we don't have billions of rand to do this. Neither did MultiChoice when it started and neither do any of the other applicants. The reality is that if you got the licence, only then would you get the money. That was the main condition for anyone getting financing, including MultiChoice."
BEC was granted a pay-TV licence in Botswana in 2006.
Related story:
Why limit licences?
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