Media houses get reprieve in TV row

Lawyers from (left) Paul Muite, Mohamed Nyaoga, Evans Monari and Wambua Kilonzo at the Supreme Court of Kenya on January 28, 2015 during the hearing of the Digital Migration case. PHOTO | EVANS HABIL |

What you need to know:

  • “If there was any legitimate complaint by any broadcaster or viewer, CA was under obligation to summon the three media houses and ask them to withdraw the advertisements. Contrary to the insinuations by CA, the advertisements were factually correct,” Mr Macharia said in the court papers.
  • The media houses had, on the basis of the authorisation, placed orders for the manufacture of transmitters for 21 broadcasting sites where frequencies had been allocated.
  • The CA director-general Francis Wangusi had indicated that the licence withdrawal was part of a raft of administrative actions being taken against the three media houses for broadcasting an advert he termed as misleading.

Supreme Court judges Wednesday extended orders stopping the Communications Authority of Kenya from switching off analogue frequencies owned by the country’s three leading media houses.

The directive will remain in force until the court delivers a ruling on whether the authority had complied with the orders that the judges issued on September 29, last year.

The directive came after the Nation Media Group, Standard Media Group and Royal Media Services accused the authority of failing to comply with the judges’ orders that the media houses be considered alongside other applicants for a Broadcast Signal Distribution (BSD) licence.

Their lawyers yesterday told a seven-judge bench that they had been issued with a self-provisioning licence which allows them to carry their own content, but the same has since been withdrawn by the CA.

The licence was an interim measure as they waited for the regulator to place a tender for a third BSD licence. Currently, one such licence is held by Signet, a subsidiary of KBC, and another by Pan African Network Group Kenya Ltd (PANG) - a Chinese company.

Mr Issa Mansur, one of the lawyers for the media houses, told the judges that the withdrawal of the temporary authorisation and repossession of the allocated frequencies was unreasonable, unlawful and without basis.

The media houses had, on the basis of the authorisation, placed orders for the manufacture of transmitters for 21 broadcasting sites where frequencies had been allocated.

He explained that the transmitters will be of no use once they arrive in the country should the decision by CA remain in force.

The three media houses have spent Sh565,560,432 to order for the first batch of 135,000 set-top boxes for purposes of getting type approval from the CA and marketing.

The CA director-general Francis Wangusi had indicated that the licence withdrawal was part of a raft of administrative actions being taken against the three media houses for broadcasting an advert he termed as misleading to the public and “in gross violation of the legal and regulatory framework governing the sector”.

However, the media houses have in their court papers said that CA has abdicated its constitutional and statutory duty as a regulator and opted to be partisan by trying to compel them to have their television content carried by their competitors.

NMG, SMG and RMS have opposed attempts by CA to compel them to surrender their television content to be carried by Pay TV broadcasters.

Royal Media Services chairman Samuel K. Macharia said in his court papers that it was obvious GOTV and Star Times could not survive without bundling and selling content of the three media houses.

He also said that the three media houses were compelled to air the contested advertisements out of desperation as GOTV and Star Times were carrying their content without consent and without any steps being taken by CA to address the breach of its own regulations and directives which prohibited the same.

“If there was any legitimate complaint by any broadcaster or viewer, CA was under obligation to summon the three media houses and ask them to withdraw the advertisements. Contrary to the insinuations by CA, the advertisements were factually correct,” Mr Macharia said in the court papers.

The three media houses were allocated only 21 frequencies but they need at least 54 to be able to cover the entire country on a digital platform.

FREQUENCIES ARE ALLOCATED

They also want to be given two months from the date the frequencies are allocated to them to order, import and install transmitters, antennas and other transmission equipment necessary to roll out their digital transmission infrastructure as well as order and import set top boxes.

“Thereafter, a simulcast period during which our television channels will be available on both the analogue and digital platforms and continues for a period of two months prior to the analogue switch-off,” said the media houses.

Lawyer Paul Muite, also for the three media houses, said that PANG was given three years to put its digital infrastructure in place and that it was necessary that the three media houses also get the few months they have requested for to be able to migrate smoothly.

“PANG was given three years and we are only asking for four months to import and install our digital infrastructure,” said lawyer Muite.

But reacting to these arguments, CA, through lawyer Wambua Kilonzo, said it has complied with the orders of the court adding that though there was no consensus on the migration date, majority of stakeholders had agreed with the set switch-off dates.

Mr Kilonzo also said that the frequencies allocated to the three media houses were enough and, if properly utilised, can cover the whole country. He added that CA had fully complied with the orders issued on September 29, last year.

Lawyer Fred Ojiambo, also for CA, said that claims by the three media houses that their temporary authorisation had been withdrawn, was a matter that should be litigated in the High Court, given that it was not part of the orders issued on September 29, last year.

Mr Wangusi, in his court papers, said the Supreme Court ruling had concluded the controversy regarding whether the content of the three media houses should be carried by others.

The judges informed the parties that they will deliver their ruling on notice.