Storm in a TV over amendment

‘NO DECISION NEEDED AS IT’S NOT BINDING’ Digital migration policy is only a guideline, top court hears.

Advocate Wim Trengove SC told the Constitutional Court yesterday that a decision on the amended set top box (STB) policy was unnecessary as it would have no legal binding effect.

Trengove, who is acting for Communications Minister Faith Muthambi, was quizzed by Chief Justice Mogoeng Mogoeng and other judges on the Bench about his client’s decision to amend the Broadcast Digital Migration Policy, which now states that subsidised set top boxes should not have decryption capabilities.

Following the minister’s policy amendment in 2015, e.tv brought an application to the high court seeking a review of the decision and arguing that the minister did not have the power to effect it because the necessary consultations had not taken place. However, the e.tv application was dismissed with costs.

South Africa is set to undergo a digital migration process to transition broadcast television signals from analogue to digital. In 2015, Muthambi published an amendment which included a clause in the Broadcast Digital Migration Policy stating the subsidised set top boxes shall not have the capability to decipher encrypted broadcast signals.

Yesterday, Trengove told the Constitutional Court the amendment was not reviewable as it had no binding legal effect. “It will never have any effect and if it does, the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of SA (USAASA) will have to consider the matter,” Trengrove said. “E.tv has no legal interest in the amendment, but Icasa might. They have a commercial interest in the implementation.”

Mogoeng asked Trengove about the rationality of the policy and whether there was room for it to be challenged. Trengove said the policy merely provided guidance to the executives on the transition from analogue to digital TV and that it was not binding on anybody. “Why should it be reviewed if it’s not binding. What is the point of reviewing a policy that may not have effect?” – ANA

Picture: EPA A model presents a creation by Spanish designer Jesus Lorenzo from the 2017-2018 fall-winter collection during the Mercedes-Benz Fashion Week Madrid in Spain yesterday.