E.tv court win means longer de­lay in TV plan

An­other blow to dig­i­tal mi­gra­tion

Weekend Argus (Saturday Edition) - - NEWS - CRAIG DODDS

SOUTH Africa’s much de­layed dig­i­tal broad­cast mi­gra­tion process has been dealt an­other set­back af­ter e.tv was granted leave to ap­peal a rul­ing ear­lier this year dis­miss­ing its chal­lenge to Communications Min­is­ter Faith Muthambi’s dig­i­tal mi­gra­tion pol­icy.

The free-to-air broad­caster had chal­lenged the pol­icy in which Muthambi ex­pressly pro­hib­ited gov­ern­ment- spon­sored set-top boxes (STBs) from be­ing en­abled to al­low for en­cryp­tion, on the grounds she had ex­ceeded her pow­ers, failed to con­sult rel­e­vant stake­hold­ers, and that her de­ci­sion was ir­ra­tional in that she had stated her aim with the pol­icy was to give broad­cast­ers the choice of whether or not to en­crypt.

The broad­caster con­tended the ef­fect of the pol­icy was to pre­vent it from mak­ing use of en­cryp­tion – con­sid­ered nec­es­sary to com­bat pi­rat­ing of con­tent – be­cause do­ing so would cut it off from the re­cip­i­ents of the gov­ern­ment’s five mil­lion free STBs.

Giv­ing rea­sons for the grant­ing of leave to ap­peal yes­ter­day, Pre­to­ria High Court Judge Bill Prinsloo said the dig­i­tal mi­gra­tion process would af­fect the vast ma­jor­ity in the coun­try and was a mat­ter of na­tional im­por­tance.

Grounds for ap­peal in­volved an in­ter­pre­ta­tion of the min­is­ter’s pow­ers in terms of the Elec­tronic Communications Act, and “when it comes to the in­ter­pre­ta­tion of a doc­u­ment, such as a statute, there is a rea­son­able prospect that dif­fer­ent courts may come to dif­fer­ent con­clu­sions”, Judge Prinsloo said.

Judge Prinsloo gave per­mis­sion for e.tv to take the mat­ter to the Supreme Court of Ap­peal.

For the mo­ment, this is un­likely to have any ef­fect on the roll- out of STBs as the Uni­ver­sal Ser­vice and Ac­cess Agency has al­ready placed or­ders for more than one mil­lion – with­out en­cryp­tion ca­pa­bil­ity.

How­ever, should e. tv ul­ti­mately suc­ceed in its ap­peal, it would re­sult in a costly ex­er­cise to re­place the STBs al­ready made.

There would also be penal­ties to be paid to man­u­fac­tur­ers who had bought parts for the un­en­crypted units, and a fur­ther de­lay in the process.

South Africa has agreed with neigh­bour­ing coun­tries to a De­cem­ber dead­line to roll out STBs in bor­der ar­eas that would be af­fected by sig­nal in­ter­fer­ence, af­ter it missed the June dead­line to com­plete the mi­gra­tion process.

The Communications Depart­ment and e. tv were al­ready in talks seek­ing an am­i­ca­ble so­lu­tion af­ter the broad­caster sought an ur­gent in­ter­dict to halt the manufacturing of un­en­crypted STBs, which it put on hold pend­ing an agree­ment.

Spokesman for e.tv, Vasili Vass, said he was not aware of any progress in th­ese dis­cus­sions.

CRIT­I­CISED: Communications Min­is­ter Faith Muthambi.

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