ConCourt to hear encryption case

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The Department of Communications is confident the Constitutional Court will rule in its favour.
The Department of Communications is confident the Constitutional Court will rule in its favour.

The issue of technical specifications of government-subsidised set-top boxes (STBs) is still in contention, as the Department of Communications (DOC) has moved to battle the ruling in favour of encrypted decoders.

While it has been widely speculated the DOC would appeal the Supreme Court of Appeal's (SCA's) judgement that the use of unencrypted STBs is "unlawful and invalid", the department has now confirmed the case is headed to the Constitutional Court (ConCourt).

It has also been reported that pay-TV operator M-Net, a subsidiary of MultiChoice, has lodged its own appeal papers with the highest court in the land.

DOC spokesperson Mish Molakeng says while the matter is under judicial consideration, making it difficult to make further public comments, the department is confident it has a chance to get the SCA judgement overturned.

"We believe we have a strong case and we have lodged the papers at the Constitutional Court. We can't really comment further than that."

Drawn-out fight

In 2013, the African National Congress (ANC) declared encrypted STBs would be used, but Muthambi made amendments to the party's policy.

Etv approached the courts to challenge Muthambi's controversial Broadcasting Digital Migration (BDM) amendment policy that saw a change to unencrypted STBs.

The appeal court found the amendment did not follow a process of consultation and was irrational and in breach of the principle of legality.

The court also found the minister's failure to consult with Etv, the Independent Communications Authority of SA (ICASA), the Universal Service and Access Agency of SA and other interested parties rendered the process of enacting the amendment irrational.

Muthambi's policy on the use of unencrypted STBs has also been criticised by members of the ANC. Last year, ANC chief whip Jackson Mthembu called out Muthambi over the amendments, saying the use of unencrypted STBs was not the party's mandate.

The minister also faced public backlash from higher education minister Blade Nzimande, who said she defied the ANC and alliance decisions on digital terrestrial television.

Nzimande told Eyewitness News: "It's very unfortunate that it's the SCA that must reinstate what was originally the position of the ANC."

However, this week the DOC came out in full support of the minister and lambasted Nzimande for his comments.

Muthambi did not defy her party's directive by opting to use unencrypted STBs, the DOC said in a statement. "To either expressly or by implication allege minister Muthambi has gone against the ANC policy on digital migration amendments is patently untrue...The truth of the matter is that the minister of communications has been defending a Broadcasting Digital Migration policy and amendments which were approved by Cabinet."

SA missed the International Telecommunication Union's June 2015 deadline for all countries to migrate from analogue to digital television viewing.

ICASA investigates

Etv's call for encrypted STBs has been questioned and labelled as a future "business plan" for the broadcaster, which is speculated to want to move away from its free-to-air model.

The opposing views on STB encryption has attracted ICASA's attention.

In a statement, ICASA says it will launch an inquiry into the subscription television broadcasting services market.

According to ICASA: "The purpose of the inquiry is to, among others, define the relevant wholesale and retail markets or market segments in the subscription television broadcasting, taking into account the relationship, if any, and the impact from adjacent markets (ie, free-to-air broadcasting services, new technologies, and so on); and to determine whether there is effective competition in those relevant markets and market segments."

The statement adds: "The authority has observed the failure of new market entrants to commence with licensed activities in this market and noted that only two subscription broadcasters operate despite several having been licensed.

"This highlights concerns of competition in the subscription television broadcasting market which appears not to be functioning effectively."

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