TVs shutdown casts doubt on regulator’s independence

By Frankline Sunday | Published Tue, February 13th 2018 at 08:19, Updated February 13th 2018 at 08:25 GMT +3
Anti-riot police 'arrest television sets' which were left by human rights activists after they demonstrated on February 27, 2015 outside the Communication Authority of Kenya. [Mbugua Kibera, Standard]

In summary

  • Events preceding digital migration and the recent closure of TV stations on the orders of Interior and ICT CSs point to a regulator siege from the executive

The Interior and Coordination of National Government Cabinet Secretary Fred Matiangi’s illegal move to force the Communications Authority of Kenya (CA) to shut down three national broadcasting stations has shattered the remaining illusion of independence on the part of the country’s ICT regulator.

CS Matiangi’s move, in direct contravention of a court order, has been criticised widely across the board. This is even as media owners and stakeholders review the dire warnings sounded during the acrimonious digital migration process come to pass.

Three leading television stations – KTN, NTV and Citizen were shut down for several days in a bad case of déjà vu that rekindles the dispute over the digital migration process which saw Matiang’i (then ICT Cabinet Secretary) direct the CA to shut down the same media houses on February 14, 2015.

This Valentine’s Day switch off marked the climax of the contentious digital migration process that saw most privately-owned media stations remain off air for three weeks.

Back then, the State and media owners were in disagreement over the procedure of migrating TV broadcasting from analogue to digital signals.

The dispute dates back to 2011 when the government through the then Communication Commission of Kenya (CCK) controversially awarded the second signal distribution licence against the recommendations of the digital migration task force.

The digital migration process recommended splitting TV broadcasters into content providers e.g KTN, NTV and Citizen and broadcast signal distributors, (BSD) such as the State-owned Signet.

Broadcasters would thus only require a licence for content and enter a commercial agreement with signal distributors to have their channels aired.

The government argued that this created a fairer business environment compared to having one service provider licensed to both create and distribute TV - concentrating too much power on the service provider.    

The versatile nature of the digital broadcasting infrastructure would allow broadcast signal distributors carry content countrywide or to targeted broadcasting to specific locations as desired by their clients. 

The task force also recommended CCK grant local media houses one broadcast signal distribution licence uncontested for the preservation of national interest.

However, in a curious about turn and backed by the ICT Ministry, CCK opted to award the second distributor licence to the Chinese firm Pan African Network Group (PANG) in an open tender system. 

Court battle

This excluded local media houses that could not individually raise the highly priced bids and further eliminated the 30 per cent local ownership provision derailing the original course of the digital migration process and setting the stage for a long court battle.

Local media houses came together under the Africa Digital Network (ADN) consortium and succeeded in lobbying the CCK to grant them a third broadcast signal distribution. This was however withdrawn in January 2015 as the rift between the government and media owners widened in the months leading to the migration deadline.

This saw the country’s scarce digital spectrum resources fully in the hands of a State-owned signal distributor and a Chinese-owned one with the media owners warning that this presented a recipe for authoritarianism.

In arguments in and outside court, media owners argued that allowing a foreign firm to control digital signal distribution would put local content producers at the mercies of foreign agents.

The situation was worsened by the fact that PANG also owned Start Times meaning the government was back-pedalling on its rule against giving one service provider the licence to both produce and distribute content.

China has a long history of media crackdown and censorship within its borders with the media largely State-controlled and heavily monitored by the ruling Communist Party of China.

China’s Internet is insulated from the rest of the world with most of the traffic routinely taken through government sensors. The Asian nation has implemented legislation and technological barriers that have kept websites such as Facebook, Google and Twitter inaccessible in what is referred to as the Great Firewall.

Media owners and stakeholders voiced concern over handing over of the frequency spectrum to a Chinese firm, fearing this could sup State censorship creep into Kenya’s media industry.

Dr Matiangi denied any impropriety in the awarding of a digital broadcast licence to PANG, arguing that digital migration was meant to “liberalise the market by introducing more operators.” 

“We are building our Internet infrastructure and migrating from analogue to digital broadcasting provides us with an opportunity to avail more spectrum to enable mobile telephony and expand our broadband footprint,” Matiang’i told journalists following a stakeholders meeting in December 2014.

The CS further insisted that the digital migration process would be conducted with the best interest of all stakeholders in mind with the government only playing a “facilitative role”.

“The role of government is not to hurt but to encourage business, not to stifle but to facilitate and we are willing.”

Dr Matiang’i and media owners, however, failed to reach a consensus and he announced that Kenya would migrate by February 13, 2015, months’ in advance of the global deadline of June 2015. 

Three weeks later, Wangusi wrote to ADN notifying the consortium its digital broadcasting licence had been withdrawn in response to misleading advertisement sponsored by the three media houses advising the public against some types of set-top boxes.

The stage was now set for a showdown between the State and the media owners leading to the TV switch off beginning that Valentines Day which further demonstrated that the CA was not, in fact, independent, but following the dictates of the ICT boss.  

On February 15, 2015, a day after KTN, NTV, QTV and Citizen TV went off the air, CS Matiang’i held a press briefing graced by then State House head of Communications Manoah Esipisu and CA Director General Francis Wangusi.

CS Matiang’i accused ADN of switching off their digital broadcast signals and misinforming the public on the digital migration process and urged the CA to penalise the three media houses.

A tough-talking Mr Wangusi echoed his boss’ threats saying the CA board would determine the penalty to slap on the media houses and would not hesitate to revoke their operating licences. “They (ADN) will not get back on the digital platform unless they meet certain conditions the regulator gives them…we are going to slap heavy penalties on them because they have done a very serious violation even if it includes withdrawing their licences,” said Mr. Wangusi.

The matter was resolved following closed-door discussions between the government, the CA and media owners.

Three weeks and hundreds of millions of shillings in lost advertising revenue later the four TV stations went back on the air. In a curious turn of events, Mr Wangusi recently found himself on the opposite side of the man he once served loyally when police officers blocked him from accessing his office for two hours.

Mr Wangusi who was sent on a three-month suspension last month under controversial circumstances tried in vain to gain entrance to CA headquarters as per the provisions of a court order for his reinstatement. Following his suspension three weeks ago, Mr Wangusi said CA board’s independence was being undermined and was taking direct instruction from the parent ministry.

Mr Wangusi was suspended on accusations of inappropriate employment and personnel decisions made at the authority that saw relatives of high-ranking officials receive jobs and hefty perks.

A 2015 internal audit at the CA revealed that bosses had collected millions in allowances, mileage claims and sitting allowances.  Board members took home Sh9.8 million in sitting allowances over a six-months and another Sh10 million in training expenses. It was however curious why the board picked this time to look into the report and why other board members who were also implicated had not been suspended together with Wangusi.

 “Am baffled by the reasons they have given for my suspension and to be honest, I think the real reason has something to do with the difficult positions I have taken in the past,” he said adding that the board was “under siege”.

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