Communications Authority is paid to serve the interests of the public, not those of private foreigners

The war between the Communications Authority of Kenya and local media houses over content distribution should interest all Kenyans.

In liberal democracies, regulatory legitimacy rests on the claim that policies and institutions serve the public interest.

Public interest denotes either what the public wants or what would serve the public interest. Regulators are, therefore, expected to develop policies that uphold shared national values that are aimed at delivering the social and cultural policies of a given society.

Media and communication regulation may be classified into three contexts: first, globalisation, second, market harmonisation, which is supposedly regulation to reduce constraints on trade within states and across borders, and third, technological convergence — the ability to deliver content on a range of platforms and devices. All three are always weighed against the public interest.

Therefore, the pendulum is expected to tilt towards public interest, whether that of the consumers or that of the citizens, when regulators develop policies and regulations.

CONTENT DELIVERY

The ongoing debate between media owners and the Communications Authority of Kenya (CA) revolves around the delivery of content on platforms and devices. Whereas developed states have pursued media regulatory policies that take into consideration the public interest, CA seems to focus on protecting certain business interests and/or damaging others.

The communications regulator is expected to manage competition, issue licences, and determine spectrum allocation while at the same time taking into consideration the potential consequences of its actions on the objectives and interests of the public.

In direct contradiction of this, CA has issued a broadcast signal distribution licence for more than 50 per cent of digital frequencies to one company that is wholly owned by foreigners and denied local companies — Royal Media Services, Nation Media Group, and the Standard Group — such a permit.

In essence, what CA is trying to do is confine local broadcasters to the role of producing content for foreign companies to distribute, which does not make any sense, common or commercial. The ongoing dispute touches on the fundamental rights and liberties that Kenyans have fought for, for a long time.

One point of concern is that the CA-approved content distributors market their set top boxes with the promise that viewers will get content from free to air local TV stations. However, if one fails to pay the monthly subscription fee, their service gets disconnected and they have no access to even the local TV stations.

RAISES QUESTIONS

This is what CA should explain to Kenyans when it talks about treachery. It raises the questions of who is deceiving Kenyans. We are talking here about the public interest.

Kenyans need to understand what goes into producing TV programmes. Media houses employ people to collect, process, and package information before it is distributed. This costs a lot of money.

It, therefore, makes no sense, in terms of business or copyright, that a third party that has not participated in or contributed any financial resources to this process should distribute the content and gain financially from it without seeking the permission of its owner.

This is why an earlier court ruling directed that local content should not be aired by signal distributors without the permission of its owners. As the court rightly observed, this amounts to infringing on the media companies’ copyright.

LEGALITY OF BOARD

Apart from these obvious blunders by CA, there is the issue of the legality of the authority’s board. The current board ought to have been wound up last year to pave the way for the creation of an independent body, as required by law.

The authority is established under the Kenya Information and Communication (Amendment) Act 2013. Transition provisions give the former board of the Communications Commission of Kenya (CCK), CA’s predecessor, 90 days to leave office to allow for the constituting of an independent board. This did not happen as CCK simply rebranded to become CA.

Kenyans should push for the appointment of an independent CA board, which should be free from manipulation.

Dr Bosire teaches journalism and media studies at Technical University of Kenya. ([email protected])