South African free-to-air (FTA) commercial broadcaster e.tv has filed a legal motion against Minister of Communications Dina Pule on the grounds that her decision to award the set-top box (STB) control system for digital terrestrial television (DTT) to parastatal signal distributor Sentech is “unlawful, procedurally unfair, irrational and unreasonable’.
The STB control system (or conditional access) is necessary to protect the locally manufactured STBs that will be required to decode the digital broadcasting signal once South Africa migrates to DTT. It will also prevent the grey importing of non-compliant STBs and prevent locally produced STBs from being unlawfully exported to other countries. A control system also allows individual STBs to be switched on and off, thus precluding the use of stolen units.
Screen Africa contacted the Department of Communications for comment on 17 September and received the following response: “The Department has received the legal notice about e.tv’s action. The Department is open to further engagement with e.tv. The Department is continuing with the work to prepare the country for digital broadcasting services and working with all of our stakeholders.’
e.tv’s attorneys, Rosin Wright Rosengarten, first contacted Minister Pule soon after her decision on 10 May 2012 to instruct Sentech to assume responsibility for the control system, requesting that she provide the legal grounds for the instruction. No grounds have been given to date.
On 12 September 2012 chief operating officer of e.tv Bronwyn Keene-Young deposed an affidavit in support of the legal motion against the Minister to the Johannesburg High Court. The 100-page document maintains that e.tv and the South African Broadcasting Corporation (SABC) are responsible for the STB control for FTA DTT.
In the affidavit Keene-Young states that the Minister’s decision suffers from “a series of fatal flaws’ – firstly that the Minister has no power to direct that Sentech will be responsible for managing the system. Secondly, the Minister’s decision violated the Electronic Communications Act 36 of 2005, the Digital Migration Regulations and section 192 of the Constitution in that it interferes with the manner in which broadcasters engage in their statutory right to broadcast. Thirdly, the decision was made without any opportunity for e.tv or the SABC to make representations to the Minister.
The affidavit continues: “This was despite the fact that the Minister had requested the SABC and e.tv to be responsible for managing the STB control system and had communicated this publicly and the fact that the Minister was aware that this process was already ongoing. Fourthly the Minister has consistently failed to explain the legal basis and reasons for her decision. This is despite repeated requests by e.tv in this regard.’
Included in the affidavit is a letter dated 3 March 2011 from the director general of the Department of Communications to the SABC. It reads: “The Department of Communications remains supportive of the concept of STB control and hereby requests SABC working in cooperation with other affected FTA broadcasters, to commence a process to select a suitable STB control vendor.’
As Keene-Young explains in the affidavit, the reference to a “suitable STB control vendor’ refers to the company that would, on a commercial basis, supply the software system to be used for STB control, including the software used for encoding and decoding the signal. She notes that the SABC and e.tv reached agreements regarding their joint management of STB control initially in 2008.
The affidavit also includes a statement from Pule’s predecessor, the late Roy Padayachie, made at a press briefing on 9 September 2011. It reads: “The licensed FTA broadcasters have developed a structure and objectives document for the management of a STB control mechanism to prevent signal piracy and to protect subsidised boxes from leaving the country. In our approach we will ensure that the preferred technical mechanism also supports the growth of the manufacturing sector. The approach entails establishing a section 21 company or joint venture at which the SABC, e.tv and future FTA broadcasters will operate and enjoy the same rights, benefits and responsibilities.’
According to Keene-Young, on 10 May 2012 the Minister wrote to the SABC and Sentech only, stating: “Sentech has an existing STB Control System used on their satellite transmission network which can also meet the STB control requirements needed in the DTT network. Sentech is prepared to upgrade the system to include satellite ad DTT STB control functionality. The system will be located and managed at the Sentech technical facility where Sentech already has trained staff to operate the system.’ The Minister then instructed to Sentech to go ahead to meet the strict DTT deadlines.
In response on 30 May 2012 e.tv’s attorneys wrote to the Minister saying her instruction was contrary to the Sentech Act and that there is no lawful basis for it. e.tv requested as a matter of urgency the terms of the power that allowed her to direct Sentech to act in this manner. The Minister acknowledged receipt of the letter but to date has made no formal response.
On 3 August 2012 e.tv sent another letter to the Minister and objected to the fact that the Minister stipulated in her Request for Proposals (RFPs) for the manufacture of government subsidised STBs that Nagravision supply the STB control system technology. The affidavit points out that Nagravision has an existing relationship with Sentech.
The affidavit reads: “Moreover the decision has the effect of forcing e.tv to use Sentech’s signal distribution services in circumstances where the ECA and the Digital Migration Regulations expressly allow e.tv to contract with any electronic communciations network service licensee to provide signal distribution for its services or to “self-provide’ its own signal. If the Minister’s decision were to stand, Sentech and not the broadcasters, would own and control the access to the over eight million set top boxes which will be required for the country’s digital migration.’
e.tv’s viewpoint is that the STB control system issue needs to be resolved before the tender is awarded and manufacturing commences.
Meanwhile, as per the Minister, the first phase of the DTT roll-out has been scheduled for later this month.
