Reprieve over TV switch-off date

By Kurian Musa

Nairobi, Kenya: The Court of Appeal sitting in Nairobi has been asked to compel the Government to provide equal conditions and opportunities in issuing licences for digital broadcasting.

Three media houses have appealed to the court to reverse the earlier decision by Justice David Majanja that denied them a chance to review and obtain digital frequencies and licences.

Making submissions before justices Roselyne Nambuye, David Maraga and Daniel Musinga, the appellate lawyers representing the Nation Media Group, The Standard Group and Royal Media Services said that Majanja erred in his judgment.

Majanja in his ruling had said: “The petitioners participated in the entire policy process and had the opportunity to align their business with policy changes. They must adapt to change or face extinction.”

But lawyer Kimani Kiragu challenged the High Court decision, saying that the three media firms had invested heavily in broadcasting infrastructure.

“They need only spend very little in order to offer digital broadcast content if given licences,” said Kiragu.

He said pay television firms licensed to sell set top boxes are also allowed to air intellectual property content of the three media houses without mutual consent as provided for by the task force report on digital migration as well as the law on intellectual property.

“We are not going through the back door to obtain the licences as the respondents purport. We were told by then Permanent Secretary Bitange Ndemo that having invested heavily in the broadcasting infrastructure, equipment and personnel, a third licence would be issued to us, but this never happened,” submitted Kiragu.

He told the court that those pay-TV service providers are offering privileged service but his clients are offering free services to anyone who has a television set.

He said: “The free-to-air television service providers depend entirely on revenue from advertising content. Commercials are the main income source and this will be lost. It is the major sustenance for the appellants’ business.”

Despite the High Court ruling that intellectual property claims could be addressed through another channel, the three media firms said they spent millions of shillings to produce favourite programmes that keept their audiences glued to the screens.

Task force

Concurring with Mr Kiragu’s submissions, the Attorney General said that the final report by the task force, which is to be used to implement the digital migration exercise, had a mistake in the wording.

“The document was prepared in a rush in my office,” said the AG.

The report reads in part: “… interested broadcasters including current broadcasters ‘may be’…”

But the words to be used, according to the appellants, are ‘will be’ licensed to air digital signals…”

Earlier, senior counsel Paul Muite told the court that the Constitution guaranteed the right to information.

The task force report states that current broadcasters will be allowed to form an independent company to run their signal distribution service in order to utilise their existing infrastructure and this company will be given the first preference to a signal distribution licence.

Justice Majanja’s ruling was challenged also on account that it failed to address the issue of ownership of companies already granted the licences.

The court was told that Kenyan consumers have not been protected through a phased migration strategy, including a voluntary switching phase.

The appeal court extended the orders suspending the switch-off date as the case goes on. The hearing continues on Monday next week.