E-TV has started high court proceedings against the Minister of Communications, Dina Pule, for appointing state-owned signal distributor Sentech as the entity responsible for South Africa’s set-top box (STB) control system.
Though E-TV has applied for an urgent hearing, the dispute appears likely to cause another delay in South Africa’s migration from analogue to digital terrestrial broadcasting (DTT).
This is the latest in a series of delays, which have included the reconsidering of SA’s DTT standard and the knock-on effects thereof, and debates over whether free-to-air channels should be encrypted.
In the founding affidavit bringing the matter before the high court, E-TV’s chief operating officer, Bronwyn Keene-Young, argued that the Minister had no legal grounds to decide who should be responsible for the STB Control system.
Keene-Young went on to explain that STB Control, sometimes referred to as “conditional access”, is a very important in South Africa’s digital migration.
Millions of TV viewers in South Africa who rely on a normal aerials to receive channels will be unable to watch TV without an STB, she said.
Because of these far-reaching implications, Keene-Young said, government has embarked on a large project to subsidise STBs for poorer households.
She said that this is one of the reasons STB control is “common cause” between the parties
According to Keene-Young, STB control is important for the following reasons:
- It will ensure compliance with a minimum set of specifications for STBs.
- It will prevent “grey imports” not compliant with the standard from receiving South Africa’s digital signal.
- Individual STBs can be switched on and off, preventing stolen STBs from being used.
- It will prevent the unlawful export of STBs, especially government-subsidised STBs.
- Without STB control, broadcasters such as SABC and E-TV may not be able to offer high definition broadcasts. This is because Hollywood studios require strict levels of security to prevent piracy.
SABC and E-TV responsible for STB control
Keene-Young argued that the SABC and E-TV should be the parties responsible for the STB control system, citing a various sources, including the standard for STBs that the Minister herself introduced in June 2012, a month after assigning the responsibility to Sentech.
She put forward that the two free-to-air broadcasters had already been collaborating on the STB control system extensively.
Among the tasks undertaken by E-TV and the SABC was a tender process, with the joint bid evaluation committee recommending a specific tenderer during July 2011.
Keene-Young said that she had already approved this recommendation on behalf of E-TV, but that they were still waiting on the final SABC approval.
However, on 27 July 2012, the Minister issued a tender for the manufacture of government-subsidised STBs that specified Nagravision as the conditional access software to be used in South Africa’s STBs.
Nagravision had submitted a tender to the SABC and E-TV to supply STB control software, Keene-Young confirmed, but she emphasised that the tender has not been awarded to any specific bidder yet.
Keene-Young also pointed out that Nagravision has an existing relationship with Sentech, supplying conditional access for certain satellite services.
Anatomy of (another) delay
According to the Notice of Motion, the matter will be heard on Tuesday, 2 October 2012 if no notice of opposition is given.
E-TV named Pule, Sentech, the SABC, and ICASA as respondents.
If a respondent wants to oppose, they have until 20 September 2012 to indicate their intention to do so and until 4 October 2012 to file their answering affidavits.
E-TV may then file answering affidavits until 10 October 2012.
Should the matter be opposed, it will be enrolled for hearing on the motion court roll on Tuesday, 16 October 2012.
The notice stated that E-TVs costs are to be paid only by those who oppose their application.
Department of Communications responds
Asked for their take on the issue, a spokesperson for Pule said that that they have received notice of E-TV’s action.
This means that they would have to consult with their legal team before responding as they consider the matter sub judice, the Ministry said.