Johannesburg - A further hold-up in the digital migration process - already years behind schedule - is “a bullet that could have been dodged” if there had been proper consultation on the policy changes announced by Communications Minister Faith Muthambi last month.
Civil society and interested parties agreed on Tuesday with e.tv’s claim in its court challenge to the policy that Muthambi had failed to consult them.
The fact that the changes had been made “pursuant to a process that was not procedurally fair” is one of the grounds on which e.tv is basing its challenge, according to its founding affidavit, lodged in the Pretoria High Court.
Lara Kantor, e.tv group executive for regulatory strategy, argued in the affidavit that while Muthambi’s predecessor, Yunus Carrim, had invited public comment on amendments he proposed to make to the policy, these had never been implemented.
Instead, Muthambi gazetted her own, directly opposite, changes last month, critically specifying that the 5 million government sponsored set-top boxes to be distributed to the poor would not be able to receive an encrypted signal.
Kantor argued that while Muthambi had acknowledged in public that she had an obligation to consult and claimed to have done so widely, e.tv was not aware of such a process and, as a key interested party, had never itself been consulted on the minister’s proposed amendments.
This made her decision to enact the amendments concerned “procedurally unlawful, procedurally unfair and procedurally irrational” under the Electronic Communications Act and Promotion of Administrative Justice Act, Kantor argued.
Sekoetlane Phamodi, co-ordinator for the SOS: Support Public Broadcasting Coalition, said his organisation, which represents trade unions and NGOs, among others, had not been consulted.
Between Carrim’s tabling of his draft amendments in December 2013 and Muthambi’s finalisation of the policy last month, she had never explained the framework being used to inform her decisions.
Instead, “machinations” in the department and the agreement between the SABC and pay-TV broadcaster Multichoice binding the public broadcaster to oppose encryption had frustrated the public consultation process, and the consequence was the likelihood of another delay in digital migration.
This was “a bullet that could easily have been dodged”, Phamodi said.
William Bird, director of Media Monitoring Africa, welcomed e.tv’s challenge, saying while it might lead to a further delay, “spending a few more months to make sure we get something that is going to be in the broadest public interest, and not necessarily in the interest of a limited group, is something worth fighting for”.
In her affidavit, Kantor also argued Muthambi had overstepped her powers in prescribing that government set-top boxes would not be able to receive encrypted signals.
Given that there are an estimated 8 million households that rely on a terrestrial television signal (those who don’t subscribe to satellite services like DStv) for all their TV entertainment, this would cut e.tv or any other would-be free-to-air broadcaster off from 60 percent of the terrestrial television market and 35 percent of the total television market of an estimated 13 million households.
Muthambi’s spokesman, Ayanda Hollow, said the department had yet to study the application and would issue a statement when it had.