Black Earth Communications (BEC) - one of the 10 applicants that failed to gain a subscription broadcast licence from the Independent Communications Authority of SA (ICASA) in September - is challenging the regulator's approach.
BEC attorney Brendan Hughes says 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.
"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," he says.
"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."
ICASA in September awarded five companies - Walking on Water, On Digital Media, e-SAT, Telkom Media and MultiChoice Africa - pay-TV licences. Eighteen companies, including BEC, had initially applied for the licences, but three - Sentech, Worldspace and Multichannel TV - subsequently withdrew their applications.
BEC director Kubeshni Govender Jones says the company will shortly apply for a judicial review of the authority's decision on those grounds as well as others.
"We see no reason why ICASA should limit the number licences in the market, or why they should call a halt to the application process."
Jones says the decision violates the spirit of the Electronic Communications Act, which calls for the inclusion of small and medium-sized enterprises (SMEs) and the bringing of diversity into 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," says Jones. "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."
Hughes says the company will ask the court to uphold what BEC sees as its constitutional right to enter the business of broadcasting. "The state can only limit a person's right to disseminate information where it is reasonable and justifiable to do so."
ICASA spokesman Sekgoela Sekgoela says the authority had not received any correspondence on the matter by 21 December when it closed for the holidays. ICASA staff members return to work on Monday. He adds that ICASA cannot respond on the "basis of press releases".
BEC was granted a pay-TV license in Botswana in 2006. It plans to launch its service there in July.