1.0
Introduction
J.
Mitchell[1]
defines digital technology or digitization as the ability of a person or system
to convert a piece of information or a representation of reality or a recording
of some matter into digital form. In the context of
broadcasting, digital migration refers to the process of shifting television
broadcast from analog transmission - which involves broadcasting of encoded
analog audio and analog video signal - to digital transmission - which involves
transmission of audio and video by digitally processed and multiplexed signal[2].
Just like any other technological advancement, broadcast digital technology
comes with a myriad of challenges. According to Prof
Ben Sihanya[3],
Digital broadcasting raises regulatory questions that fall under a
three-pronged classification typology enumerated by Yochai Benkler and Lawrence
Lessig known as the Benkler-Lessig model. This model classifies the regulatory
framework into the physical layer or architecture[4],
the code or software layer[5],
and the content layer[6].
Each of these levels of regulation has its own range of challenges. Kenya, in a
bid to migrate to the digital broadcasting technology, has encountered numerous
legal challenges. This discussion is aimed at analysing the issues that have
arisen in the broadcast digital migration process in Kenya along the lines of
the Benkler-Lessing model of regulation. It also analyzes the digital migration
process in Tanzania and the legal issues that that arose in relation to the
migration
Background
on the Digital Migration Process in Kenya
The migration from analogue broadcast
signals to digital broadcast signals is part of an international process within
the telecommunication sector aimed at technologically advancing the sector and
increasing efficiency in the use of available spectrum globally[7].
It is specifically targeted at the television broadcast segment of the sector.
The process is being implemented under the auspices of the International
Telecommunications Union (herein after referred to as ITU), which is a UN agency
established under the Convention of the International Telecommunication Union[8].
Kenya is a member of the ITU by virtue having adopted and ratified the
convention in 1964.
In Kenya, the process of digital migration began in
2006. The first step in this direction was the announcement by the government
of the switch off date for analogue signal as 1st July, 2012[9].
The switch off was to be conducted in a phased manner[10].
It was thought that this would allow the time and flexibilities to address any
challenges that arise from the migration before the global switch off date for
all analogue broadcast signals of 17th June, 2015 adopted by the
second Regional Radio Communication (herein after RCC) conference for Region 1
of ITU[11]
held in Geneva, Switzerland caught up[12].
The second step was the setting up of a Taskforce,
known as the Task Force on the Migration from Analog to Digital Broadcasting (
herein-after referred to as the taskforce) , to make recommendations on the
strategy to be adopted to enable smooth implementation of the digital migration
program in Kenya[13].
After gathering views from the public and stakeholders in the broadcasting
industry, the taskforce presented its final report to the minister for information
and communications on 4th October 2007[14].
It recommended that:
1. Digital
migration to be done in a phased manner. This was to begin with digital switch
on, followed by simulcast period, and finally analog switch off.
2. The
established of a common transmission platform for all broadcasting services to
optimize usage of available resources.
3. The
Government, in consultation with the CCK, to establish a multi-stakeholder
working group, known as the Digital Television Committee, to implement the
Migration Taskforce Report.
Pursuant
to the recommendations of the taskforce, the minister allowed Kenya Broad
Casting Corporation (herein after referred to as KBC), to form a subsidiary,
Signet Kenya Ltd, and granted a digital signal distribution licence to the subsidiary[15].
A second digital signal distribution
licence was awarded to Pan African Network Group Ltd after a competitive bid
process[16].
A dispute arose as to the process of issuing the second licence to Pan African
Group Network Ltd, in the form of Application No. 24 of 2012 before the Public
Procurement Administrative Review Board. In the end, the Tribunal dismissed the
application[17]. The
process of issuing a second licensing caused the date analog switch of date to
be postponed to 31st December, 2012 because of the delays in the
appeal of the award of the digital signal distribution license[18].
The analog switch off date was postponed for a second time when the High Court in the case of Consumer
Federation of Kenya vs. Minister for Information and Communication and 2 others[19] issued injunctive orders halting the
intended migration on grounds that since it was elections period, switch off of
analogue signal would hinder Kenyans’ access to important information that
would help them in electing their representatives. The petition was later
withdrawn by consent of the parties on 21st June 2013, thereby
enabling the migration process to proceed.
The minister, pursuant to the recommendation of the
taskforce, also established the Digital Television Committee (herein after
referred to as DTC) to spearhead the migration process[20].
The DTC comprised members from Government and the media industry[21].
The DTC held multiple stakeholder consultations and public awareness campaigns
in preparation of the migration[22].
At its 65th meeting, held on 6th August 2013, it was agreed by all
parties to the DTC that the new switch off dates would be as follows:
1. Phase
1: 13th December 2013 - Nairobi;
2. Phase
2: 30th March 2013 - Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye, Kisii,
Nakuru, and Eldoret; and
3. Phase
3: 30th June 2013 - All other remaining stations.
The
dates were later gazetted by the minister as the official analog switch off
dates.[23]
The new timelines encountered a challenge when three media houses – Nation
media Group, Standard Media Group and Royal Media Services – moved to the High
Court to challenge the migration process in Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others[24].
The High Court entered its final decision in favour of the Communication
Commission of Kenya (herein-after referred to as CCK) and allowed the migration
to proceed.
Further delays were occasioned by the decision of
the Court of Appeal in Royal Media
Services Ltd and 2 others vs. The Attorney-General and 8 others[25]
where the court, in order to enable it full review of the matters raised by the
appellants from the decision of the High Court in Petition 557 of 2013[26],
the Court extended the switch off date to 6th February, 2014. Upon
conclusion of the matter, the Court of Appeal ordered that the analog switch
off date be set for 30th September, 2014. A further appeal was made to
the Supreme Court in Communication Commission
of Kenya and 5 others vs. Royal Media Services and 5 others.[27]
The apex court ordered that the parties to the dispute agree on modalities of
complying with the international deadline for analog switch off. In compliance
with this, the Communications Authority of Kenya (herein-after referred to as
the CAK) entered into negotiations with the three media houses. The
negotiations ended with an agreement that the CAK issue a digital signal
distribution licence to the media houses. The media houses were on the other
hand required to form a consortium. The new analogue switches off dates were
set out as follows:
1. Phase
1: 31st December, 2014 - Nairobi;
2. Phase
2: 30th March, 2014 - Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye,
Kisii, Nakuru, and Eldoret; and
3. Phase
3: 30th June, 2014 - All other remaining stations.
A
further issue arose on the switch off date on 31st December 2014.
The three media houses sought an extension of time for them upgrade their
infrastructure to comply with the requirements for digital migration[28].
A truce was reached via directions issued by the a two bench sitting of the
Supreme court on directing that the media houses be allowed to continue
distributing their content through the analogue system pending a full
determination of the new issues by the full bench of the apex court. The other
analogue signal distributors were switched off. In its final instructions, the
Supreme Court ordered that the digital migration dates agreed upon by the
parties proceed as planned. This resulted in a switch off of all analogue
signals within areas covered by phase I of the migration process. The three
media houses however switched off their analogue signal countrywide and
withdrew from the digital platform in protest of the refusal by the CAK to give
them additional time to prepare their infrastructure for migration.
1.1
Issues
Arising From The Kenya’s Digital Migration Program
The following legal issues arising from
the digital migration process. The issues are discussed under the three ponged
classification of the Benkler-Lessing model.
1.1.1
Content Layer
The issue that arises with respect to this
layer is Intellectual Property rights protection. Intellectual property refers
to creations of mind.[29]
Intellectual property has been recognized by the constitution in Article 40(5)
which provides that the state shall support, promote, and protect the
intellectual property rights of the people of Kenya. Article 11(2) (c) also
provides that the state shall promote the intellectual property rights of the
people of Kenya. The intellectual property in question in the digital migration
program in Kenya is broadcast, protected under the Copyright Act.[30]
The issue of copyright
infringement within the digital platform was first considered by the High Court
in Royal Media Services Ltd and 2 others
vs. The Attorney-General and 8 others[31]
as part of the issues for determination. The issue arose as a result of the
‘must carry rule’ found in Regulations 14(2) (b) and 16(2) (a) of the Kenya
Information and Communications (Broadcasting) Regulations, 2009. The court on
this occasion dismissed the contention on the ground that the petitioners
relied on constitutional provisions to enforce rights protected under a
different regime of law[32].
Restated, the Court held that the issue of copyright infringement raised by the
petitioners was raised in the wrong forum through the wrong channels. On appeal,
the Court of Appeal[33]
found that the issue was properly before the High Court since the state was
obliged under Article 40(5) to protect intellectual property rights of all
Kenyans. Failure to do so gives an aggrieved party the right to seek a remedy
in the High Court as the ultimate enforcer of the Constitution and the Bill of
Rights. Since the party alleged to facilitate the infringement in the instant
case is a state agency, then the petitioners were in the correct forum by the
correct means. Having found thus, the court went ahead to decide on the issue
of copyright infringement. The appellate Court found that the 3rd respondent’s
direction to the 4th, 5th, 6th and 7th respondents to air the appellants’ Free
to Air programmes without their consent through the aforementioned regulations is
a violation of the appellants’ Intellectual Property Rights[34].
A Second appeal to the Supreme Court found as the High Court did, holding that:
“The principle of avoidance entails that a Court will not determine
a constitutional issue, when a matter may properly be decided on another basis.
(…) From the foundation of principle well developed in the comparative
practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High
Court, regarding infringement of intellectual property rights, was a plain
copyright- infringement claim, and it was not properly laid before that Court
as a constitutional issue. This was, therefore, not a proper question falling
to the jurisdiction of the Appellate Court[35].”
This position of the Supreme Court is correct.
However, the next finding of the apex Court is a concern. The Supreme Court
also considered whether the conduct of CCK licensees pursuant to Regulations
14(2) (b) and 16(2)(a) of the Kenya Information and Communications (Broadcasting)
Regulations, 2009 - the “must carry” rule - could be reconciled with the
constitutional right to protection of intellectual property as well as the
provisions of the Kenya Copyright Act[36].
The Court found in the affirmative reasoning that the licensees were not rebroadcasting
the content but distributing. To this end, they learned judges reasoned that
the licensee did not qualify as broadcasting authorities and hence could not be
said to be rebroadcasting content of the respondents. We respectfully disagree
with the Supreme Court’s reasoning on this issue in a definitional context.
Section 2 of the Copyright Act defines “broadcast authority” as “KBC and any
other broadcaster authorised by or under any written law”. Thus, if the CCK
licensees were licensed to “broadcast” in Kenya, then it follows that from this
definition in the Copyright Act the CCK licensees would be considered broadcast
authorities. The Supreme Court erroneously found that no rebroadcasting had
taken place because due attention was not given to the definition of “broadcast
authority” provided in the Copyright Act.
Further the apex Court erred in bringing the
“must carry rule” within the fair dealing exception to copyright. This is
because the case does not fall under any of the grounds expounded under
sections 29 as read with section 26(1) of scientific research, private use,
review or criticism, and reporting of current events. The court relied on the
finding of the Philippine Supreme Court in ABS-CBN Broadcasting Corporation
v. Philippine Multi-Media System, Inc. & 6 Others[37]
without considering the fact that the fail dealing regime in that country
specifically includes public interest as part of the grounds of fair dealing.
Further, it is a contradiction for the court to try to bring the issue of
rebroadcast under the fair dealing limitation to copyright yet it finds that
there was no infringement since the actions of the licensees was
redistribution.
Despite the holding of the Supreme Court on the “must
carry rule” settling the issue on redistribution of content under the digital
television broadcast platform in Kenya, the issue still persists considering
the last round of conflict between the CAK and the three media houses has
centered around this rule. This is compounded by the fact that this reasoning
of the Supreme Court raises serious issues on its reflection of the Kenyan law
on copyright.
1.1.2
Code Layer
The following issues arise under this
layer.
Obligation of Kenya under
International Law in Relation to Digital Migration
As this layer touches on the
laws and policies in place, the issue of compliance with international law on
migration to digital television broadcast arises. This obligation is found
under the second RCC conference for
Region 1 of ITU agreement as well as the ITU convention and the ITU guidelines
on digital migration.
The obligation is reflected
under Article 2(5) and (6) of the Constitution which provides that the
obligations of Kenya under the general principles of international law and
treaty law form part of the laws of Kenya. Further, Section 5 (b) of the Kenya Information and Communications Act tasks
CAK to ensure that Kenya’s obligations
under any international treaty or agreement in its field of operation is
complied with. The Supreme Court’s finding in Communication Commission of Kenya and 5 others vs. Royal Media Services
and 5 others[38] found that Kenya was under an obligation to migrate to the digital
platform in compliance with its international obligations. This was also the
finding of the other two superior courts that handled the case. Thus it is well
settled that the digital migration process is to be undertaken in Kenya as part
of this international obligation.
Laws and Policies to Guide the Digital Migration Process
The legal framework to guide the digital
migration process in Kenya is found in the following posited laws:
1. The
Kenya Communication Act[39].
This is the principal law that is regulating the digital migration process. The
Act establishes CAK, formerly CCK, in section 3 as the primary regulator of the
broadcast industry in Kenya. CAK is also tasked with managing all spectrums in
Kenya. To fulfil this role, Part IVA of the Act, grants CAK the legal mandate
to issue license, determine fees payable for use of spectrum and also establish
and enforce standards of the spectrum within the broadcasting sector. Thus,
standards on television broadcasts – which include the choice on whether to
migrate to the digital television broadcast technology – are the preserve of
the CAK.
2. The
Kenya Information and Communication (Radio Communications and Frequency
Spectrum) Regulations. These were promulgated by the minister for information
in 2010, pursuant to section 46K of the Kenya Communications Act. The
regulations ensure that CAK considers availability for the proposed service and
location as well as its safety. Section 5 specifically tasks the authority to
ensure compliance with Kenya’s international obligations under any treaty that
relates to its field of operation.
3. The
National ICT Sector Policy Guidelines. They were promulgated in 2006. They
outlined the framework within which national broadcasting, private broadcasting
and community broadcasting signal distribution would be provided.
4. The
ITU convention. The provisions of the ITU Convention form part of the Laws of
Kenya by virtues of Article 2 (6) of the constitution of Kenya, 2010.[40]
ITU has developed guideline for the digital migration process which covers
policy and regulation requirement, market and business development, networks,
roadmap development and analogue switch off.
The central issue surrounding these laws is their
ability to guide the digital migration process and later the digital
distribution of television broadcasts. This concern was raised by the Supreme
Court, in its decision in Communication
Commission of Kenya and 5 others vs. Royal Media Services and 5 others[41],
where it recommended, at paragraph 415, that parliament consider reviewing the
law to cater for the special requirements of the migration process.
Consumer
Rights
Article 46 of the constitution provides
for the rights of consumers. Issues of consumer rights have been at the center
of the digital migration process. The first issue in this direction has been
the cost of implementing digital migration program. A key contributor to the
debate on this issue has been the cost of set-top boxes. This issue of the
ability of consumers to afford the digital set-boxes has been a key concern in
the process of implementing the digital migration program. This was noted by
Justice Majanja in Royal Media Services
Ltd and 2 others vs. The Attorney-General and 8 others[42]
at paragraph 117 where he stated that:
“Third,
although the issue of availability and affordability of STBs is a valid concern
which the respondents would do well to consider mitigating as the process is
implemented.”
The government has recognized this and has put
policies in place to mitigate this. This was noted by Justice Lenaola in Consumers Federation of Kenya (COFEK) vs.
Minister for Information and Communications and Others,[43]
where, at paragraph 22, he state that:
“It
is equally not sufficient for them to allege that they have cushioned the
consumers by subsidizing the costs of the set –top boxes to affordable amounts
in order to make them accessible to a common Kenyan.”
The
measure here is the zero rating of digital set-top boxes to lower their prices.
The issue is compounded by the fact that a majority of Kenyans are only aware
of the pay TV options in the market which require monthly subscription.[44]
The second issue has been in relation to access to
information. It is to be noted that this right is a stand-alone right under
article 35 of the Constitution but also fall under consumer rights in relation
to the right to acquire information adequate to enable the make informed
decisions. The latter is deal with here as the former is dealt with later in
this discussion. The issue here relates to the amount of information provided
to consumers in relation to digital migration. The issue has been that there was
not enough information offered to consumers to understand the digital migration
process. As a result, the process has run into huddles after ever corner it has
taken. However, the controversies and efforts of sector players have
contributed to more consumer education over the past year.
While these challenges pose a threat to consumers,
there are numerous advantages to be realized with this shift in technology in
television broadcast. These advantages seem to be the driving force behind the
reasoning of the court as can be deduced from this statement of Justice Majanja
in Royal Media Services Ltd and 2 others
vs. The Attorney-General and 8 others[45]
where he noted as follows:
“What remains a constant is that
technology continues to evolve and the framework for adapting to that change
has been developed by the 2nd and 3rd respondents with the participation of the
petitioners. This cannot hold back the clock…..”
Freedom of
Media establishment
This right is guaranteed
under Articles 34 of the Constitution. The
issue of freedom of establishment as found under article 34 was argued in the
digital migration cases along the lines of legitimate expectation. This will be
dealt with under the discussion on the physical layer on issuance of licences. However, the Supreme Court made a finding in Communication Commission of Kenya and 5
others vs. Royal Media Services and 5 others[46]
that though the constitution guarantees freedom of media, this freedom has to
be exercised in the context envisioned by the constitution. The apex court
notes that the constitution envisages regulation of this freedom of
establishment by the requirement of licensing. The court thus rightfully
affirmed the CCK licensing issuance requirement as meeting the constitutional
threshold as they are necessary to control distribution of television content
and are only based on merit consideration.
However, an issue which touches on this issue which
was not considered was the cost of the media houses been carried by the
licensed digital signal distributors. While the “must carry rule” ensures that
the local media will be carried, there is no provision on the cost they have to
bear for this. If the costs are prohibitive, the right to establishment is
infringed since the ability of the media to have their content accessed by the
public is diminished.
The Right of
Access to Information
The
right of access to information is provided under article 35 of the constitution[47].
The right was extrapolated in 2002 by the Inter-American Court of Human Rights
in Claude Reyes et al. v. Chile[48], as follows:
“By
expressly stipulating the right to “seek” and “receive” “information”, Article
13 of the Convention [American Convention on Human Rights] protects the right
of all individuals to request access to State-held information, with the
exceptions permitted by the restrictions established in the Convention.
Consequently, this Article protects the right of the individual to receive such
information and the positive obligation of the State to provide it, so that the
individual may have access to such information or receive an answer that
includes a justification when, for any reason permitted by the Convention, the
State is allowed to restrict access to the information in a specific case. The
information should be provided without the need to prove direct interest or
personal involvement in order to obtain it, except in cases in which a
legitimate restriction is applied. The delivery of information to an individual
can, in turn, permit it to circulate in society, so that the latter can become
acquainted with it, have access to it, and assess it. In this way, the right to
freedom of thought and expression includes the protection of the right of
access to State-held information, which also clearly includes the two
dimensions, individual and social, of the right to freedom of thought and
expression that must be guaranteed simultaneously by the State.”
In relation to digital
migration, the issue has been whether the migration will obstruct the ability
of citizen to access information. This was dealt with in Consumers Federation
of Kenya (COFEK)
vs. Minister for Information and Communications and Others,[49]
where Lenaola J.,
while granting a conservatory order to restrain the implementation of the
digital migration noted as follows at paragraph 23:
“Even though the Respondents have proven the
extensive measures they have undertaken to create public awareness of this
digital migration since 2006, I am in agreement with the petitioner that the
timing of the switch is not proper. As a country we are in a crucial stage
of the electioneering period. Accordingly, the consumers have the right to
benefit from the information available in the broadcast media as well as the
information available in other media forums to enable them make informed
decisions.”
The reasoning of the court here was that the migration
would obstruct Kenyans’ access to crucial information for the voting exercise.
This is because it was show at the time that there were few people who had
acquired the necessary infrastructure to receive television signal once the
migration had taken place. However, the Supreme Court in Communication Commission of Kenya and 5 others vs. Royal Media Services
and 5 others[50]
found that this
process would not interfere with this right because Kenyans had enough time to
acquire the necessary infrastructure to access television signal. In a similar tail of though, Justice
Majanja noted as follows in Royal Media
Services Ltd and 2 others vs. The Attorney-General and 8 others[51]
at paragraph 117:
“Digital
migration will cause some hardship to the petitioners’ business and other
inconvenience to Kenyans. But this is not the kind of hardship or inconvenience
that should be put on hold indefinitely. No date for the switch-off will be
convenient and perfect either now or in the future.”
Thus
though the right to access information is threatened by the digital migration
process, it is a necessary evil compared to the public interest at stake from
the obligations of Kenya at the international level and the numerous benefits
of this new technology.
1.1.3
Physical
Layer
The following issues arise under this
layer.
Issuance
of BSD Licences
Licensing is one of the limitations to the right of
media establishment contemplated under article 34(3) (a). Licensing is a key
physical attribute of the regulatory framework of digital broadcasting of
television content since it regulates the ability to provide content. A key question for determination in Communication Commission of Kenya and 5
others vs. Royal Media Services and 5 others[52]
was whether and to what extent the petitioners were entitled to be issued with
BSD licences by the CCK. The court found that this is depended on the legal framework governing the issuance of those
licenses. In this case, the applicable law was Articles 10, 27 and 227(1) of
the constitution of Kenya; and sections 29, 98 and 109 of the Public
Procurement and Disposal Act. After examining the provisions made under
the aforementioned laws, the court concluded that the provisions of the law
were properly applied. If the petitioners had any objections, they were to be
raised in the proper forum as designated by the law using the proper channels.
The court concludes by noting that the petitioners were not and cannot be
entitled to broadcast licenses as a matter of right. Neither was the issuing of
BSD license to other licensees to the exclusion of the petitioners as alleged
in the petition is not a violation of Articles
33 and 34 of the
Constitution since it was done constitutionally in accordance with Public
Procurement and Disposal Act. The Court of Appeal on the same issue found that
the process of issuing BSD licences infringed on the appellants right of
legitimate expectation.[53]
The Supreme Court found that the CCK did not infringe on the rights of the
respondents on legitimate expectation to be issued with a licence[54]
and revoked the order for respondents to be issued with the licence.
The issues that prompted the inquiry into the process
of issuance of BSD licenses was the concern that there were no non-state owned
local media industry players issued with the licence. While this issue was
resolved by the issuance of a BSD licence to the local actors, the concern has
shifted to the issuance of 64% of the available spectrum to a foreign owned
company, Pan African Network Group Limited. However, such concerns are
misplaced because the most important aspect of the migration is not the amount
of spectrum issued to local companies, but the transfer of technology from the
first world to Kenya. If Pan African Network Group (PANG) can ensure this, then
there ought to be no point of concern.
Another concern has been the perceived favourism of
PANG by the CCK and it successor the CAK. Reference is made to the fact that
PANG was issued with a BSD licence while it did not satisfy the requirement of
local shareholding.[55] Whether
this is a genuine concern remains to be seen.
Independence
of CCK
The CCK was the former regulator of the telecommunication sector in
Kenya. As such, it formed an integral part of the regulatory system in Kenya. CCK,
as established under section 3 of KICA before the amendment, was the body
tasked with regulating the broadcast sector in Kenya. In line with this
mandate, it issued the BSD licences. The High Court in Royal Media Services Ltd and 2 others vs. The Attorney-General and 8
others[56] found that it was competent to do so.
However, on appeal the Court of Appeal in Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [57]
found that the composition of CCK in its composition at the material time was
not the independent body envisaged by Article 34(3) (b) to regulate airwaves in
Kenya after the promulgation of the Constitution of Kenya, 2010. Consequently,
the court found that the public procurement process of determining applications
for the BSD licenses that it conducted in connection with this matter was null
and void. It ordered that an independent body or authority constituted strictly
in accordance with Article 34(3) (b) be the one to conduct the tendering
process afresh. The Supreme Court, in addressing the same issue in Communication Commission of Kenya and 5
others vs. Royal Media Services and 5 others[58]
found that CCK was not the legally mandated body in Article 34(3) (b) of the
constitution for regulating the broadcast sector[59].
However, the court, at paragraph 209, found that this fact did not render its
acts illegal for the constitution did not intent to create a vacuum in the
regulation of airwaves.
The issue of the independence of CCK is a
crucial one, since it the regulator of a very important sector of the country[60].
The constitutional requirements in Article 34(3) (b) for its independence must
be fulfilled. This has been accomplished with the formation of the CAK[61].
However, the impartiality of CAK has been questioned by the three media houses
involved in the digital migration tussle for its perceived aggressive conduct
against them.
1.2
Conclusion
In conclusion, the issues that have
emerged with the digital migration process are serious and ought to be
addressed at once. However, they are not reason enough to continually halt the
process of migration. The issues can be properly addressed once the migration
is done. This was noted by Justice Majanja
in Royal Media Services Ltd and 2 others vs. The Attorney-General and 8 others[62]
at paragraph 117 as follows:
“The
resolution of teething problems can be done once the problems are identified
and this can only be done once the switch-off is implemented. I find no reason
to step in and forestall the digital migration process merely on the basis of
the anticipated challenges, whether real or perceived.”
Such a resolution of these issues must
be as quoted by Mutunga CJ in Communication
Commission of Kenya and 5 others vs. Royal Media Services and 5 others[63]
at paragraph 388:
“In resolving this dispute,
account must be taken of the nature of the resource (Spectrum) being contested,
the economic fundamentals under-guarding its capitalization, the country’s
obligations under international law, and the values decreed in our
Constitution. At the end of the day the people of Kenya, local investors,
international investors all have a stake. Of course care must be taken so as
not to leave this resource to “the tragedy of the commons”. At this stage, we
recall the words of Mr. Kimani Kiragu when he urged thus: ‘I started by taking
you on a flight to the Caribbean and referring to, or quoting Mr. Robert
Marley. Let me come back home with regard to the three principles…If I could
refer to our very own Ken Wa Maria, ‘these things, these are my things, these
are your things, these are our things, these are the fundamentals’.”
DIGITAL
MIGRATION IN TANZANIA
2.0
Introduction
Tanzania was the first country in Africa
to fully migrate to digital transmission, which was concluded by December 2012.[64]
The body in charge of the migration process in Tanzania was the Tanzania
Communications Regulatory Authority (TRCA).it began the preparations for the
Digital Switch-Over (DSO) after the 2004 International Telecommunication Union
(ITU) Regional Conference where digital terrestrial broadcasting was planned
for both Europe and Africa.
2.1
The
Process of Migration
In 2005, TRCA published its 1st
consultation document that addressed the policy, legislation and licensing
framework changes in order to prepare for the DSO. The licensing approach they
proposed included the licensing of the multiplex operators separately from the
channel providers, the set-boxes and TV sets. The consolation further proposed
the roadmap for the whole process.
The 2nd
consultation paper in 2006 further addressed three multiplex licensing, one
public and two commercial. The roll-out of the multiplexes began in 2008 with
the invitation for those interests to express their interests. Two licences
were awarded in 2010 to Star Media Tanzania, Agape Media and Basic
Transmissions.
Due to the high prices
for the Set Boxes, the TRCA developed a scheme to help the low income consumers.
The government contributed to the reduction in the cost of the set top boxes
through elimination of the taxes and importation duty up to the end of 2012.
The consumer awareness
campaign started in 2007. In 2011, TRCA began public education through road
shows. Further the president launched the Digital Tanzania campaign. However,
consumers and the press still raised concerns during the final few months
before ASO about the competence of the STB supply chain. Consumers reportedly
felt uncertain about which STB to purchase, and there was a perception that
vendors were incorrectly advising consumers to buy analogue equipment, and that
distributors were slow in getting STBs into stores[65].
Consumer uncertainty was unlikely to have been helped by confusing messaging
about whether analogue equipment would become obsolete after switchover.
Despite the efforts of the TCRA and the government provided regular information
to the effect that existing TV sets could continue to be used there were still
statements in the press about the imminent obsolescence of analogue equipment.[66]
2.2
Legal
Issues Arising From Digital Migration in Tanzania
The Right of Access to information
Media Owners Association of Tanzania
(MOAT) made a request to the government to halt the migration on ground that
the people were being denied of the right to information.[67]
The government nonetheless continued with the migration but put in place
mechanisms of ensuring that the citizens’ access set top boxes. This included
among other things elimination of taxes on importation of the boxes. This can
be contrasted with Kenya where the prices of the set top boxes were never
subsidized.
The Right of Establishment of Media
MOAT alleged that broadcasters’ revenue
was decreasing because viewers did not have decoders given that the price of
decoders was very high for ordinary people. The MOAT also raised complaints
that multiplexes were charging exorbitant fees to allow content provides air
their content. The Constitution of Tanzania does not have any provision of
freedom of media and therefore the government had the discretion of handling
this issue, which it in fact did and this saw a reduction in the fee charged by
the Multiplexes.[68]
Consumer Rights
MOAT complained about the consumers’
concerns that there was poor reception and performance of the decoders.[69]
The other issues with respect to the consumer rights were with respect to
access of information, costs and availability of the set top boxes. The TCRA
handled these concerns in the following ways:
The TCRA did formulate
in 2010 a strategy that used print, newspapers, TVs radios and web services,
road shows and talks-shows, meetings and seminars in order to publicize the
process of transition from analogue to digital TV through the ASO process. This
was to enhance the consumer awareness concerning the whole process.
In relation to the
costs, the Authority took steps to ensure that they remained under control in
order to minimize the costs to the consumers, CSPs and MUX operators for
rolling out the digital infrastructure. There was a public-private partnership
for the public signal distributors as the government lacked the resources to do
it alone. For private investors, they formed a joint venture between local and
foreign investors for the additional two signals.
The Authority took
measures to ensure convenient availability of the Set-Top-Boxes to the
consumers through the operators. It worked with the government to exempt the
import duty as well as the VAT on the boxes to make them affordable.
Finally there was an
established consumer support service to ensure that they were accorded
appropriate customer care and technical support as well as active consumer
feedback mobilisation mechanism.
2.3
Conclusion
Digital migration in Tanzania was more
systematic compared to this Kenya. This is because the whole process was
informed by fruitful consultations, and taking into account the concerns that
were raised by the general public and Media Owners Association of Tanzania.
REFERENCES
1. The
Constitution of Kenya.
2. Kenya
Information and Communication Act, No. 1 of 2009
3. Kenya
Information and Communication (Amendment) Act, No. 41A of 2013
4. Media
Council Act, No. 41 of 2013
5. Copyright
Act, No 12 of 2001
6.
Archibald, D. H., & Freid, S. H. (2011). Digital
Invation. New York: Amazon Press.
7.
Gervais, D. J. (2007). Intellectual propertty, trade and
development. Oxford: Oxford University Press.
8.
Sarah, P., & Berry, P. (2010). Digital Technology
Research. London: Oxford University Press.
9.
West Group. (2004). Black's Law Dictionary (8th
Edition ed.). St. Paul: Thomas West.
10. Tanzania Communications Regulatory
Authority (TCRA), Assessment Report on Migration from Analogue to Digital
Broadcasting and Analogue Switch-Off Processes in Tanzania, 2013.
11. The EastAfrican. (2013). Tanzania’s switch to digital
migration offers EA lessons . The East African .
[1] Archibald, D. H., & Freid, S. H. (2011). Digital
Invation. New York: Amazon Press.
[2] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 55.
[3] Archibald, D. H., & Freid, S. H. (2011). Digital
Invation. New York: Amazon Press.
[4] This layer comprises of transmission, distribution and
reception technologies including wires, wireless connectivity and fibre optics.
[5] This layer is the intelligence that runs the
system. It is made up of the relevant laws and policies on digital technology.
[6] This layer includes voice, data, images or
graphics that constitute privacy, copyright, trade mark and domain names
system.
[7] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 55
[8] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 55.
[9] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 55.
[10] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 55.
[11] The
Conference was held under the auspices of ITU. The conference was aimed at
rationalizing national policies, as per the ITU regions. The national policies
had been developed after a resolution for the development was made in the first
RCC conference held in 2004 in the same venue. The aim of rationalizing the
national policies was to come up with a regional policy for implementing the
needs that necessitated the conference; namely the review of the Stockholm 1961
and Geneva 1989 VHF/UHF Television Broadcasting Plans for the European and
African Broadcasting Areas agreements to enable introduction of an all-digital
terrestrial broadcasts.
[12] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 56.
[13] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 57.
[14] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 57.
[15] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 59.
[16] It is to be noted here
that the local media owners had been invited to form a consortium under which
they would be granted a digital signal distribution licence. The reasoning
behind this was that it would alley any fears of government interference in
signal distribution – allowing independence of the media – and would enable the
owners meet the required capacity standards to be awarded the tender. However,
the media houses did not take up this suggestion and they lost the licence bid.
[17] However,
the complainants in that dispute, National Signals Network Ltd, wrote to the
minister to register their discontent with the manner in which the license was
issues to Pan African Network Group Ltd. The minister, in response, directed
them to apply to CCK for a digital signal distribution license, which would be
issued as long as they complied with the set conditions. However, the
complainant never took up the minister’s offer.
[18] The decision was also influenced by a resolution reached at the
19th Congress of the East African Communications Organization, Bujumbura,
Burundi held on 28th May 2012.
[19] Petition No. 563 of 2013 (Unreported).
[20] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 59.
[21] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 60.
[22] See Royal
Media Services Ltd and 2 others vs. The Attorney-General and 8 others [2013] e KLR at paragraph 60.
[26] N 24 above.
[28] The media houses also
raise the issue of the digital signal distribution licence having been
withdrawn by the CAK on grounds that they had abused their dominance via an advert
they had run in their television stations.
[29]Gervais, D. J. (2007). Intellectual propertty, trade and
development. Oxford: Oxford University Press.
[30] See
section 3 of the Act. Also, see section 29 of the Copyright Act on the nature
and scope of the copyright in a broadcast, and section 35 on its infringement.
[31] N. 24 above,
paragraph 130.
[32] For this proposition, the learned judge cited the case of Sanitam Services (EA) Ltd v Tamia Ltd and others Petition No. 305 of
2012 [2012]eKLR.
[33]N. 24 above.
[34] N. 24 above, at paragraphs 91, 92 and 93.
[35]N. 25 above at paragraph 258.
[40] The proviso provides as follows: “Any treaty or convention ratified by Kenya shall form part of the law
of Kenya under this Constitution.” This proviso is backed up by section 2
of the Treaty Making and Ratification Act, No 13 0f 2012 which
provides that the Act only applies to those treaties that Kenya shall consider
after the coming into force of the Act. All other treaties that Kenya ratified
before the enactment of the Act shall form part of Kenyan Law. Therefore ITU is
part of the Laws of Kenya and therefore binding on Kenya.
[43] N. 19 above.
[47] Article 35 of the constitution provides that (1) Every
citizen has the right of access to (a) information held by the State;
and (b) information held by another person and required for the exercise
or protection of any right or fundamental freedom. (2) Every person has the
right to the correction or deletion of untrue or misleading information that
affects the person. (3) The State shall publish and publicize any important
information affecting the nation.
[48] Judgment of 19 September 2006
[49] N. 19 above.
[65] Daily News, 25 November 2012.
[67] Tanzania Communications Regulatory Authority (TCRA), Assessment Report on
Migration from Analogue to Digital Broadcasting and Analogue Switch-Off
Processes in Tanzania, 2013.
[68]https://www.academia.edu/4019692/CASE_ANALYSIS_OF_ROYAL_MEDIA_SERVICES_LTD_V_ATTORNEY_GENERAL_and_2_OTHERS_2013_E_KLR_2013.
[69] Note 4 above.
