No excuse for harassing local media houses

Pay TV is not new to Kenyans and it has always been a matter of choice.

However, it now appears there is a plot to railroad even the poorest of Kenyans to subscribe to pay TV as the country migrates from analogue to the digital broadcasting.

The sector regulator, the Communications Authority of Kenya (CA) split broadcasting licences into two: one for content producers and the other for signal distributors.

The idea was to have only a few signal distributors to own the expensive infrastructure intended to serve as many content producers as possible at rates monitored by the regulator.

Media houses that control 80 per cent of the local TV broadcast market formed a consortium to apply for a signal distribution licence. They were rightfully apprehensive about handing over their valued content to third-party entities while they had the ability to distribute it themselves.

CA found a way to lock them out of signal distribution, prompting a court case in which the Supreme Court directed that the parties come up with a solution.

The dialogue yielded a licence (of sorts), which has now been unilaterally withdrawn as punishment for educating the public on their right to choose not to subscribe to pay TV.

As a consumer, I have not yet bought a set-top converter to be able to view digital TV and I do not intend to. I am hoping to continue viewing digital local free-to-air channels, but it would appear that someone is determined to force me, and many other Kenyans, to take up pay TV from foreign companies.

Why else would they deny local media houses both the time and the space to offer me free-to-air digital TV programmes?

'MUST-CARRY' RULE

I have issues with pay TV. First, it is the practice of pay TV companies operating in Kenya to disconnect even the free-to-air local TV stations, which they include as part of their package, if I am unable to make the monthly payment.

I am now learning that they do not even have permission to offer this local content. What right do they have to offer other people’s free-to-air content and to disconnect it?

It appears these companies have been led to believe that they can offer local TV content without having to seek the permission of its owners due to a “must-carry” rule made by the regulator as a condition for allowing them to hold the distribution licence.

This rule is intended to protect content producers who are not holders of a distribution licence. However, this must-carry rule is now being interpreted by licensed signal distributors, with the tacit support of CA, as enforceable equally on both the signal distributor and the content developer. This is absurd and untenable.

If the authority can legally make a must-carry rule capable of such interpretation, then logically it can also legally make a don’t-carry rule enforceable on signal distributors and binding on content developers.

The government-controlled regulator could issue a don’t-carry directive to stop the broadcast of content from local media or other sources that those in power may decide to silence. This is expressly prohibited by our Constitution.

The actions of CA seem to give credence to the fears that there were sinister motives behind the recent hurried passing of the draconian security laws. We have reason to be afraid.

Mr Ngugi is a consultant in public affairs and policy