Kenya: Three independent and top Kenya's television broadcasters were last night fighting back State action to withdraw their license for digital broadcasting which could pull them off air and bring to ruin their estimated Sh40 billion investment in technical infrastructure alone.
The Standard Group (KTN), Nation Media Group (NTV) and the Royal Media Services (Citizen), daily companions of Kenyans in their living rooms, offices and social places, vowed to move to court to challenge the punitive action by the Communication Authority of Kenya (CAK) that include ban to import own set boxes.
Through their umbrella body Media Owners Association (MOA), the three companies vowed to even move to an international tribunal to challenge infringement of their content by foreign Pay TV providers - Pan African Group (PANG) Startimes and Multichoice's GoTv that have been broadcasting their content without their permission.
"We are not going to let this go down and we will be going back to the court. And if we do not get redress in the country we will go all the way to the International Intellectual Property Court in Paris to protect our rights," MOA lawyer Senior counsel Paul Muite said yesterday during a press conference in Nairobi.
The media houses have also contested the irregular distribution of frequencies which are a national resource with the lion's share of the allocation handed to the Chinese group, PANG.
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PANG, a company that is wholly owned by foreigners, has been allocated 120 out of a total of 197 frequencies, which represents 61 per cent of the country digital television broadcasting frequencies. KBC and GoTV have been allocated 51 frequencies, representing 26 per cent, and Radio Africa 11, accounting for six per cent. The consortium of Nation Media Group, Standard Group, and Royal Media Services has been allocated only 5 per cent of the frequencies (10).
In terms of transmission sites the Chinese company has frequencies in 91 per cent of the locations (51), KBC 52 per cent (29), Lancia Media 19 per cent (11) and while the three aggrieved media houses have jointly been given 18 per cent (10). There are a total of 56 locations for transmissions.
MOA accused the Communication Authority of Kenya (CAK) of being partisan and favouring Pan African Group (PANG) and Multichoice's GoTv in the transition to digital migration broadcasting.
This followed the revocation of a temporally digital broadcasting license issued to the three media houses allowing them to have their own digital distribution platform instead of having their content aired through the foreign-owned firms.
MOA argued the regulator was trying to muzzle the local media houses in order to have them give the contents to the two foreign owned companies.
The media representatives of The Standard Group, Nation Media Group and the Royal Media Services questioned the CAK decision, which they termed as harsh and too punitive, further faulting them for the grounds they relied on to arrive at the decision.
CAK's took the decision to revoke the temporally licence for the media houses due to an advert that they have been carrying challenging the airing of their content by their foreign competitors on the basis of a controversial court ruling by the Supreme Court.
"We are surprised at the Communication Authority of Kenya decision. We do not think the advert was misleading or offensive in any way," the chairman of Nation Media Group Wilfred Kiboro said.
Mr Kiboro argued that the consortium formed by the three media houses, African Digital Network (ADN) had opted to educate the audience on the difference between 'Pay Television' and 'Free to Air TV' and also cautioned them against being duped into buying pay set top boxes.
The media owners maintained that both Startimes and GoTv do not have to carry their contents as indicated in a letter dated December 3, 2014 by the regulator that required seeking consent from the content providers to broadcast their programmes.
"They have not even bothered to ask for permission but they have continued to carry our content. We see impunity being encouraged by the regulator. They removed us from the must-carry-list and therefore we are not obligated or designated as a must-carry. It is ridiculous that they are cancelling what they gave us less than one month ago and this is showing a clear bias."
He insisted that the media houses expected to have a regulator who ensures that there is a level playground adding that part of the reason to self-carry is to enhance and assure press freedom.
"If they had any issue with our advert they should have come to us because they are the referee but not slap us with such administrative action," he went on.
ADN insist it has not yet acquired own set top boxes as they are currently being manufactured and therefore could not have brought them to the regulator for type-approval. "We understand the regulations to be followed but currently there is none to give them but once we get a sample we will provide CAK for approval but it looks from the tone of their letter they will not type-approve," ADN went on.
The three media houses argue that the two pay television service providers are broadcasting their content illegally.
They argue it is unfair for them to invest in producing content only for the pay TV providers to air it without seeking their permission.
Kiboro said: "The regulator has previously ruled that GoTV and StarTimes needed our permission to carry our content. GoTV has done so with impunity."
The stations further advise the viewers to wait and buy decoders that they were planning to distribute. "Our set-top-boxes will have add-ons such as 3G capabilities, Wi-Fi & hotspots. They'll be at least 30 per cent cheaper at less than Sh2,500," Kiboro explained.
"PANG, a Chinese company, doesn't have a track record of media freedom. We have the ability to carry our own signal," he said. "We're not afraid of competing with Chinese or anyone else but it's blatantly unfair for government to favour a foreign company."
"All we told viewers was that GoTV and StarTimes were selling pay TV decoders not Free-to-Air boxes like we intend to bring in," Kiboro.
Earlier CAK announced the withdrawal of a temporal authorisation it had issued to the three media houses allowing them to have their own digital distribution platform.
The authority also repossessed all the 21 frequencies allocated to ADN.
CAK further indicated that it would liaise with the Kenya Revenue Authority (KRA) and Kenya Bureau of Standards (KeBS) to bar the importation of set top boxes by the three media houses.
"The Authority has neither received any application nor granted any type-approval of any set top box model from the three broadcasters, individually or collectively, for sale in Kenya. It is therefore illegal to purport to advertise set-top-boxes that have not been type-approved by the Authority," said CAK Director General Francis Wangusi during a press conference in Nairobi.
"We were in the process of issuing of a network facilities provider tier 2 license for self-provisioning and had therefore given them a temporary authorization to put up a platform for the frequencies they were allocated. But because of this behaviour, the authority has decided to withdraw the temporary authorisation and we have also halted the process to issue them with a self-provisioning license until such a time that the Competition Authority of Kenya makes a determination in respect of their abuse of dominance," Wangusi added