Court gives greenlight for digital switch

The Government was set to switch off all analogue television broadcasting in more than 10 major towns and their environs beginning Friday midnight.

The move which followed a go ahead from the Supreme Court was to affect Nairobi and its environs, where initial switch off was scheduled for December 31, last year.

Other areas that were to be switched off in the digital migration are Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye, Kakamega, Kisii, Nakuru, Eldoret, Nyahururu, Machakos, Narok and Londiani.  These are the areas where the initial migration to digital television broadcasting was scheduled to take place beginning February 2, this year.

All other parts of the country will now be switched off on March 30, to complete the three-phase digital migration, the Communications Authority of Kenya (CAK) announced yesterday.

“The media houses and other network currently broadcasting on the analogue platform in the areas already switched off are required to migrate to the digital platform with immediate effect,” said CAK director general Francis Wangusi.

He added, “Any broadcaster still on analogue platform will be doing so illegally and the authority shall take regulatory action against them.”

Wangusi was addressing a news conference at the CAK headquarters in Nairobi shortly after the Supreme Court made a ruling allowing the switch-off to go on as planned.

He was directing his remarks at three media houses that have engaged in legal battles with the CAK over disputes on the digital migration. The Supreme Court had earlier ordered reinstatement of a signal distribution license and digital frequencies withdrawn from the three mainstream media houses Standard Group, Royal Media and Nation Media Group last month.

The Self Provisioning License (SPL) and the digital frequencies had been granted to the African Digital Network (ADN) a consortium of the three media houses but withdrawn following an advertising dispute.
The court also ordered that the dates set by the CAK for the countrywide switch off from analogue to digital broadcasting remain as scheduled.

In September last year, the Supreme Court directed the industry regulator to open dialogue with media owners on the granting of digital broadcasting licenses on ground of public interest.

On November 25, the three media houses were issued with Self Provisioning License to enable them transmit their content. However they were only issued with one digital frequency on December 15 to cover Nairobi and its environs. On December 30, 2014, they filed an application at the Supreme Court challenging the requirement to switch off, demanding more time to procure broadcasting equipment.

“You can’t place order for the transmitters without the frequencies because the manufacturer needs to synchronise them,” said Senior Counsel Paul Muite representing the media houses.

Muite said his clients were only broadcasting on dialogue platform and their content was being broadcast by other players on digital channels without their consent.

The court temporarily suspended the switch-off notice issued by the CAK to the three media houses pending the hearing of the case. Last month the CAK withdrew the license and the frequencies accusing the media houses of violating regulations in an advertisement for their set top boxes.

When the parties met at the Supreme Court again, the judges decided to only probe whether they had complied with the judgement made in September 2014. The media houses accused the CAK of not complying with the orders in the judgement but the commission claimed it had fully played its part. The judge ruled that the parties had complied with the judgement.

“It is clear to us that, following the Judgment of this Court, and the appropriate acts of compliance the stage was properly set for migration from the analogue to the digital platform in broadcast transmissions, and there was, and is, a new national and international reality in that regard, to be adopted and internalised by all parties who have come before us,” the judges said pointing out that there was nothing more pending before them to be preserved.

They terminated the orders suspending the migration and ordered the CAK to reinstate the licence and the frequencies.

“For the avoidance of doubt, the 1st appellant (CAK) is to restore the authorisation for Self-Provisioning Digital Signal Distribution and the several digital frequencies it had granted to the said respondents if it has not already
done so,” they ruled.

The court also ordered the three media houses abide by all the conditions for grant of the license and the frequencies. Following the ruling Mr Muite said the dates set for the migration would not work. He was however asked by the judges to use the legal means if there were more disputes with the regulator.