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Pay TV giant MultiChoice is taking on the Independent Communications Authority of South Africa (Icasa) in a bitter war over the pay TV inquiry hearings - a duel that is likely to spill over into the courts.

MultiChoice, in papers filed in court on Monday, accuses Icasa of not understanding the broadcast terrain and of rushing to throw in changes that will put the pay TV operator out of business in favour of international players.

Last month, Icasa, which regulates the telecommunications and broadcasting sectors in the public interest, published its draft findings document, which comes amid the backdrop of a three-year Inquiry into Subscription Television Broadcasting Services.

On Monday, MultiChoice, which owns pay channel DStv, filed papers with the North Gauteng High Court against Icasa and its chairperson, Dr Keabetswe Modimoeng, seeking an interim order to suspend the broadcasting inquiry.

“In the course of this process,” Multi- Choice chief executive Mark Rayner wrote in the founding affidavit, which The Star has seen, “it became apparent to (MultiChoice) that the draft findings consist in many instances of conclusions which are not supported by any reasoning, or justified by any evidence which has been made available to interested stakeholders”.

MultiChoice Group yesterday confirmed that it had requested the high court to compel Icasa to provide all the information, evidence and research that underpins its draft findings published on April 12.

The pay TV giant said this information would provide all stakeholders, including MultiChoice, with a full understanding of Icasa’s rationale and enable them to provide meaningful and substantive responses.

“We continue to constructively engage in the regulatory process and see this request as a necessary first step towards ensuring meaningful engagement,” said MultiChoice Group chief executive Calvo Mawela.

“Once we have concluded a review of all the relevant information, we will be in a position to prepare a comprehensive response that demonstrates our belief in a regulatory framework that’s fair, balanced and evidence based,” he said.

In the public draft document, Icasa proposes far-reaching interventions that would clip MultiChoice’s wings.

They include a restriction on the number of rights the pay TV giant can procure for: Hollywood movies; major football leagues and tournaments such as Bafana Bafana matches, Uefa Champions League games and the English Premier League; big-ticket rugby games such as the Springboks and Super Rugby; and cricket events including matches involving the Proteas.

The sporting rights which the inquiry’s draft seeks to limit on Multi- Choice’s rights acquisition include World Cups for all major sporting codes and events.

MultiChoice, which listed on the Johannesburg Stock Exchange in February, wants Icasa’s inquiry suspended pending MultiChoice receiving documents and data from Icasa which were used in the inquiry’s draft report within 30 days of a court order.

MultiChoice also wants to be afforded 60 working days on receipt of the aforementioned information to submit written representations in respect of the draft report.

“The effect of the information decision is that Icasa (unless interdicted from doing so) will make inquiry findings without having furnished stakeholders with the information which they require in order to make informed representations on the draft findings,” Rayner wrote in his affidavit.

Icasa has yet to provide stakeholders with any of the material required to make a comment.

Icasa spokesperson Paseka Maleka said on Tuesday that he would give a comprehensive response once their legal team had gone through the questions sent to them.

However, in explaining its findings in the draft report, Icasa had pointed out: “In all the identified markets where there is ineffective competition, (Icasa) found that MultiChoice possesses a significant market power on the basis of high market shares and the nature of its vertical integration, which (Icasa) considers to harm competition.”

Even though there was an increase in the so-called “over-the-top” media services such as Netflix, which are distributed via the internet, Icasa found that this impact was “still muted, given the relatively limited level of internet access, the high cost of data and low average internet speeds”. 

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