The bloodless digital war between the government of Kenya and four TV stations; KTN, Citizen, NTV and QTV ended after a Court ruling that affirmed the position of the government – that all TV stations had to migrate from analogue to digital broadcast by 2015. This came along with many financial aftershocks.
Digital migration is the process in which broadcasting services offered on analogue technology are converted and replaced with digital based networks.
The four TV stations resumed broadcast after a three-week long protest in which they turned off their analogue signals. Against the will of key players in the broadcast industry, the government insisted on ensuring that all broadcast channels complied with set migration procedures – arguing that the benefits that come along with digital migration include better picture quality, more channels, efficient use of the frequency spectrum, lower transmission costs and optimal utilization of the transmission infrastructure.
The four private stations had asked for more time for the migration, scheduled for February 2015, but the government stood its ground claiming that there was no time left.
Kenya is a signatory to International Telecommunication Union (ITU), a United Nations specialised agency for information and communication technologies and Regional Radio- Communications Conference (2006) and Geneva (2006) Agreement of the ITU recommendations that requires all member states to shift from analogue to digital broadcasting system by 2015.
The principle of International Law pacta sunt servanda that placed Kenya under intense switchover pressure also advised that the migration process must be done in good faith, and all stakeholders needed to agree on terms and conditions. Even as the media owners prepared to honour the International obligation, there were a number of pending issues that needed clarification and reasoning.
Communication Authority which was mandated to facilitate the digital switchover recommended that the public broadcaster, Kenya Broadcasting Corporation (KBC) be granted a conditional signal distribution license under its subsidiary SIGNET. Other Broadcast Signal Distribution (“BSD”) licenses were to be given to private investors through a competitive procurement process.
Through what Kenyan media houses referred to as biased procurement process, CA gave second BSD license to PANG, a Chinese owned company, and National Signals Network which was composed of three local media houses (Royal Media Services, Nation Media Group and Standard Group) – that later decided to petition Public Procurement Administrative Review Tribunal to settle the procurement process but the case was dismissed.
Crucial missteps on judgment
The case would proceed to High Court whose decision was contested to the Court of Appeal and the Supreme Court where a final decision was reached. The legal issues that arose from this matter included protection of intellectual property rights, freedom of the media to broadcast and the role of the government in regulation of information technology, but one year down the line, it has turned out that a lot of consumer based issues were never seriously analysed.
Even though Supreme Court held that the “must-carry” rule which in essence demands BSD Broadcasters to carry the signals, the companies with BSD licenses and the government did not define in context the very factors that necessitated digital migration.
In illustration, if digital migration were to come with high quality of TV and Radio signals, it’s not clear what constitutes “high quality signals,” and how consumers should react in the event that BSD licensed companies would relay low quality signals to their TV sets. To date, millions of Kenyans are not aware of what forms “quality signal” since it’s not defined in law nor in any of the Kenyan broadcast policies.
From experience, some of the decoders which have been sold to TV products consumers do not work effectively during rainy season. Some of them often delink signals – leaving TV set screens blank for some seconds during television viewership – even when there is no rain. Some of them freeze at intervals of seconds during viewership. This may not be low quality nor high quality service, but in an industry where quality itself is not defined – it’s not easy to pin down FTA or BSD broadcast service providers.
Development of policies structured on ICT normally follows a clearly defined pattern of operation based on a master-plan that has been established from an agreed frame of reference. This was certainly not the case when Digital Migration was being implemented in Kenya for the first time. The ripple effects of the decisions that were made in 2015 have discreetly made Kenyans lose part of what they bargained for.
It should be noted that there are adequate technological provisions that can deliver high quality signal that is bad-weather-proof and those which will give Kenyans value for their money. Apparently, Communication Authority forgot or just didn’t bother to explain to Kenyans the technology that was going to be used and its ability to offer quality services to Kenyans.
Fictions aside, quality must remain that – quality - at all times regardless of prevailing weather patterns and change of atmosphere. In fact, factors such as prevalent weather conditions and environmental changes are some of the considerations that must be made before implanting any ICT project.
Who controls the cost?
Meanwhile, there is inconsistency in service provision and the cost of services. It’s not clear how the prices were arrived at, and what really informed the various price tags on decoders and on the specific services.
Some TV channels have either been added to BSD service lines while some have been removed. When this is done, consumers are always informed on a simple mobile phone text message, and of course, they have very little or no say at all about the actions of the BSD licensed companies.
By any standard of ICT practice, price of goods and services is one of the most important parts of a business decision that should be made clear to the buyer as well as the consumers. At worst, there will be serious legal implications if a structure is not developed to determine the price of the broadcast services.
Pricing structure should be a public document that will inform the decision to place prices on the available services. It means that all stakeholders will have to define success rate in costing and in the value of goods and services.
From Communication Authority standpoint, the difference between the cost and price of the services being offered by BSD licensed providers is clear to the nation. It’s important for CA to define in deferential the cost and price of Digital Migration products. The authority must also give Kenyans an assessment report on the value of Digital Migration after nearly two years of consumption of the same services.
Some pre-programing digital activities such as clearing error codes after making subscription payments involve additional costs (on SMS gateways systems) which are charged by different service providers like mobile phone operators. A number of BSD licensed companies argue that the error codes can be cleared on their websites, but they can’t explain why it’s impossible to bypass the process of clearing error codes – such that once a consumer has made payment his or her TV signals are restored automatically.
Besides, some of the BSD licensed service providers have been increasing the prices for pay TV services. These service providers have never even bothered to explain to Kenyans why they normally increase prices. The pertinent question is, “who controls the prices that subscribers have to pay to watch favourite television shows every month?”
Majority of Kenyans have acquired pay TV services from foreign BSD licensed service providers. It’s seemingly clear that Communication Authority treats foreign companies better than Kenyans.
(The Writer is in charge of Digital Production at Standard Group Limited)