The Department of Communications (DOC) will apply for leave to appeal a recent South Gauteng High Court decision that places control of set-top box controls in the hands of broadcasters.
If it is successful, it could take as long as six months before the matter is heard at the Supreme Court of Appeals, in Bloemfontein. As the issue raises Constitutional matters over the minister's powers, the matter could go all the way to the Constitutional Court, further delaying switch on of digital TV.
The initial court filing, lodged by etv last year, delayed switch on of digital TV, which was meant to take place last month. As a result of the dispute between the broadcaster and the department over the DOC's decision to have Sentech handle conditional access controls, the DOC was unable to issue the tender for the manufacture of set-top boxes (STBs).
However, the department continues to work with stakeholders in a bid to come up with a solution that will avert a lengthy court battle. Parties to the initial action have until the end of today to lodge an application with the court.
Tricky situation
The DOC's deputy DG of ICT policy development, Themba Phiri, says the department has taken the decision to file an application for leave to appeal, but is still seeking a middle path that would avoid further litigation.
Phiri explains that the South Gauteng High Court's decision complicates matters, because the department had not envisaged such a situation in the Broadcasting Digital Migration Policy. He explains the broadcasters may need to appoint an STB officer, and no provision has been made for such a role. "It just throws us out of balance."
In addition, says Phiri, the state was initially set to pay about R131 million for controls, but this may now fall away if the broadcasters handle the issue. "It's a bit of a spanner in the works."
Spill-over effects
SA is migrating to digital TV using the European DVB-T2 standard and was initially set to turn off analogue signal towards the end of this year. However, the government has since conceded that this target is not practical and is instead moving towards the International Telecommunication Union's deadline of mid-2015.
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. In January 2011, the department decided to move ahead with DVB-T2 and set November 2013 for turn-off.
Due to the migration, about 11 million homes will need set-top boxes to convert the digital signal so it can be viewed on analogue sets. The state will subsidise about 70% of the cost of the boxes for around five million homes.
Although it received more than 30 responses for a tender to produce the subsidised decoders, it could not award the deal because the specifications include building in conditional access, which was at the heart of etv's court appeal.
Conditional access is a form of encryption that is meant to stop stolen decoders from being used outside of SA's borders.
No power
Acting judge Gerrit Pretorius, of the South Gauteng High Court, ruled 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.
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 prescribe to free-to-air broadcasters how they should manage set-top boxes."
As a result, wrote Pretorius, communications minister Dina Pule did not have the 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 lawsuit, which includes the cost of two counsel.
Kathleen Rice, director of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr, on behalf of Sentech, says the state signals provider will not appeal.
Etv was not immediately able to comment.
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