South Africa STB decision “unlawful”
e.tv, a South African free-to-air broadcaster, has issued a writ against the country’s minister of communications, Mrs Dina Pule, arguing that the minister’s decision to award a set-top box control system contract for DTT reception is “unlawful, procedurally unfair, irrational and unreasonable”.
The contract was awarded in May to the nation’s signal distribution company, Sentech. The STB control system covers conditional access, and also ensures that so-called grey imports of unauthorised DTT boxes do not flood the country. Unauthorised STB’s can also be de-activated in the event of theft.
‘Screen Africa’ reports that 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, says e.tv.
e.tv CEO Bronwyn Keene-Young, in his 100-page affidavit against the Minister maintains that e.tv and the South African Broadcasting Corporation (SABC) are responsible for the STB control for FTA DTT. Mr 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 March 3rd 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.
e.tv’s viewpoint is that the STB control system issue needs to be resolved before the tender is awarded and manufacturing commences.
South Africa’s initial DTT transmissions are due to start later this month.