Reprieve for three media houses as court suspends switch-off notice

Chief Justice Willy Mutunga (right) and judge Mohamed Ibrahim during the hearing of the digital migration case Monday.

Three media houses got a temporary reprieve after the Supreme Court suspended a notice to terminate their analogue television broadcasting signals by the Communications Authority of Kenya (CAK).

The court cleared the air over a dispute between the Standard Group, Nation Media Group and Royal Media Services on one hand and the CAK, on the other, on whether or not their analogue transmission should have been switched off on December 31, last year.

Chief Justice Willy Mutunga and judge Mohamed Ibrahim suspended the switch-off, pending the hearing of an application by the media owners challenging the timing of the digital migration.

Eight other stations switched off their analogue frequencies last year and are now only available on digital platform. In September last year, a seven-judge bench of the Supreme Court directed the industry regulator to open dialogue with media owners on the granting of digital broadcasting licences on ground of public interest. On November 25, the three media houses were issued with Self Provisioning Licences to enable them transmit their content. However, they were only issued with one digital frequency on December 15 to cover Nairobi and its environs.

Last week, they filed an application at the Supreme Court challenging the requirement to switch off, demanding more time to procure broadcasting equipment.

Terminate signals

Deputy CJ Kalpana Rawal then restrained CAK from cancelling broadcasting licences issued to the three media houses pending the hearing and determination of the application.

She however, did not not grant their request to temporarily suspend the analogue switch-off, leaving CAK free to terminate the signals. Rawal ordered the parties to appear in court yesterday to be heard by a bench of two judges.

That order raised an interpretation dispute, with CAK insisting they would go ahead and switch off the analogue broadcasting signals as scheduled.

Yesterday, lawyer Paul Muite for the media owners told the court the media houses needed three more digital frequencies in order to procure the broadcasting infrastructure.

“You can’t place order for the transmitters without the frequencies because the manufacturer needs to synchronise them,” he told the court.

CAK filed a preliminary objection, arguing the application by the media houses could not be heard by a bench of two judges since the September judgement had been given by the full bench of seven. Their lawyer Wambua Kioko said the media houses were seeking final orders hence the application could only go before the bench that made the judgement.

He however insisted that CAK would still be free to order the three media houses to switch off their analogue broadcasting. The lawyer claimed the three media houses were broadcasting on both the digital and analogue platforms hence getting unfair advantage over others. He argued they would still be on air even if the switch-off was allowed.

But Muite said his clients were only broadcasting on analogue platform and their content was being broadcast by other players on digital channels without their consent.

Mutunga was inclined towards having the parties discuss the disputes and resolve them amicably. He consistently questioned the lawyers on how the dialogue and negotiations ordered by the court had not been fruitful.

The lawyers said dialogue was still going on. In their ruling, the two judges said they did not have the facts on the technology involved in the switch-off.

They said they were suspending the switch-off to avoid a situation that would embarrass the court.

They ordered that the case be taken before the seven-judge bench on a date to be set on a priority basis.