D-Day for Kenyan viewers as Supreme Court rules on digital migration

A family watching Television

Television viewers will on Monday know whether they will continue watching their favourite programmes when the Supreme Court delivers a landmark ruling on digital migration.

Kenyans will know if their analogue television sets will be switched off as appellate court had extended the transition to digital broadcasting to Monday

This will become clear as the highest court in the land decides whether the three major media houses will have their own digital licence.

Judges will determine if the Court of Appeal was right when it ordered the Government to issue to the Standard Group, Nation Media Group and Royal Media Services a third licence without going through a tendering process.

The appellate court had in March ordered the Government to postpone digital migration to September and blocked pay television stations such as South Africa’s DStv and Zuku from rebroadcasting local channels without permission.

Judges also scrapped the controversial award of a signal distribution licence to China's Star Times and ordered a fresh tender process.

They also nullified Pan Africa Network Group's (Pang) licence, saying the firm did not deserve the treatment it had been accorded by Communications Commission of Kenya (CCK), now known as Communications Authority of Kenya.

The media houses argued it was unfair to deny them broadcast rights and have their content aired through a third party.

They also sought more time for viewers to purchase set-top boxes, receivers that decode digital signals to analogue to enable the channels to be displayed on analogue TV sets.

Through their lawyers Paul Muite and Issa Mansur, the media houses had submitted that they had invested heavily in preparation for the migration and it would only be fair if they were allowed to carry their own content.

The court had heard that the media houses had put in Sh40 billion in investments and they would lose the money if they abandoned their analogue frequencies and moved to the carriers that had been allocated licences by CAK.

The two lawyers had submitted that the media houses would lose advertisers during the switch-off process.

Further, in the ruling that has the potential to change the face of the media, Kenyans will know if they will have their analogue television sets switched off as the same court had shifted the migration from analogue to digital broadcast to today.

 

HEAR APPEAL

Supreme Court judges Smokin Wanjala and Jacton Ojwang had on April 11 ordered Communications Commission of Kenya not to switch off any of the media houses' frequencies, broadcast spectrum or broadcasting services pending the hearing and determination of the appeal.

The judges had also barred signal distributors Signet Kenya Limited and Pang Kenya Limited, and pay-TV providers, Star Times Media Limited and GOtv Kenya Limited, from broadcasting content from Standard's Kenya Television Network (KTN), Nation Television and Citizen TV without their consent until the matter was determined.

Supreme Court judges led by Justice Willy Mutunga heard that the appellate court was right to determine that a third licence was available for issue to the three leading media houses in the country.

The court heard that the media houses could not abandon their frequencies for that of a carrier who is also a competitor in content production.

"KTN, NTV and Citizen TV are engaged in commercial business which stands a risk if those who are licensed as distributors, and are also engaging in commercial activities, are allowed to continue operating," Mr Mansur said.

The lawyer submitted that the Government had a clear road map when it said the existing media houses' analogue infrastructure did not deserve to go to waste hence the plan to issue a third licence.

The Court of Appeal had ruled in favour of the media houses, citing that they had a valid expectation when they invested in infrastructure in readiness for digital migration.

Court of Appeal judges Roselyne Nambuye, Daniel Musinga and David Maraga had also revoked the licence issued to the Chinese company by CAK on grounds that the regulator was not properly constituted when it issued the licence.

The appeal arose from an earlier judgement by High Court judge David Majanja allowing digital migration to go on without the licences for the three media firms.

Aggrieved by the appellate court's decision, the Government moved to the Supreme Court on grounds that the court had erred by disregarding procurement rules.