Switched off as digital TV move upheld

By KURIAN MUSA

NAIROBI,KENYA: Thousands of Nairobi residents will now have to learn to cope without television, as their favourite home appliance might soon be rendered useless.

This is after three media houses failed to convince the High Court that the analogue to digital migration would hinder majority of Kenyans from viewing television.

The three petitioners’-the Standard Group, Nation Media Group and Citizen-case was that digital migration should not take place as they are entitled to Broadcast Signal Distribution (BSD) licences.

The media houses argued that their rights have been violated by the implementation of digital migration policy hence the switch off date should be postponed. 

The ruling by Justice David Majanja gives the licences’ regulator a green light to proceed with its plans to switch off analogue broadcasting signals from any time now.

successful appeal

“If the consumers are kept in a blackout, it is only because the petitioners want the television blackout,” he said in his ruling.

Senior Counsel Paul Muite contended that the switch, if carried out, would be “like a death sentence”.

“No switch off date will be convenient today, tomorrow or in the near future. The petitioners should align themselves to the technology of digital broadcast,” said the judge.

An application by the media houses to suspend the ruling pending an appeal over the trial court’s decision was also dismissed.

Mr Muite’s spirited legal duel, seeking orders suspending the switch-off date pending the filing of a formal application to the Court of Appeal, met a hotheaded decline from lawyers of the respondents. “This can be implemented today or even tomorrow and prejudice over 86 per cent of viewership controlled by the petitioners,” said Muite.

But Justice Majanja said: “The court is obliged to regard all the facts and circumstances of the case including whether in fact the intended appeal will be rendered nugatory.”

“There should be no extension of even a day to the switch off date. The petitioners’ song is… delay… delay… delay without demonstrating the prejudice they may suffer,” Communications Commission of Kenya’s lawyer said.

Majanja, however, affirmed his decision: “A successful appeal would only mean that the petitioners would be entitled to a BSD licence and they would be entitled to broadcast in analogue format while other broadcasters broadcast on digital.”

advertising business

He said the petitioners’ evidence is clear that they have been able to broadcast their content via the digital platform throughout the simulcast period through Signet.

The trial court held that it could not ignore the 65th meeting of the Digital Television Committee (DTC), where the media owners were represented.

“They said they are ready and able to switch over when the decision was made to have December 13, 2013 as the switch-off date,” said Majanja.

“MOA (Media Owners Association) expressed their concerns on why the December date was not suitable in view of the fact that their advertising business picks in early December,” said the judge.

Majanja, however, agreed in his ruling that the digital migration would cause hardship to the petitioners’ businesses as well as inconvenience Kenyans. 

“But this is not the kind of hardship or inconvenience that should be put on hold indefinitely. The loss will be in terms of advertising revenue but this would not be lost as they would be able to broadcast over the digital platform if they so wish,” he continued.

 He also addressed the petitioners on concerns about consumers; the minutes reflect that, “shifting the date would give consumers an opportunity to purchase set top boxes”.

The judge further noted that Article 34 of the Constitution does not state which technology should be used in a free and fair broadcast. Whether it is digital or analogue, the platform should be free.

Currently a set top box retails at between Sh5,000 and Sh6,000.

The switch-off date was agreed upon at the 65th DTC meeting on August 6.

The media owners were told that their intellectual property rights are well catered for and there was no cause for alarm.