Digital Migration Squabbles Part iii

The court fight by Standard, Nation

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and Citizen for Broadcast Signal Distribution (BSD) licence and frequencies has been long.

If you have an issue with a public process, you try to stop it from proceeding till you are heard. That is why these media houses are accused of trying to sabotage an international migration.

After KBC (Signet) was issued with a Broadcast Distribution (BSD) they were then allocated
frequencies for Nairobi and other parts of the country.

They handed over the frequencies to MuitiChoice (GoTV). But the media houses were more concerned about
the issuance of licence to PANG and the distribution of their content without their consent.

The question of who should distribute whose signals, the consent and the intellectual property rights was dealt with by the Supreme Court and I will be going through it later.

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The media houses went to the High Court challenging the constitutionality of the licence issuance process and they lost.

They moved to court of appeal. On March 28, 2014, the Court of Appeal annulled the issuance of the BSD licence to PANG. It also directed the CCK to issue a BSD licence to the three media houses under (African Digital Network)

The CCK appealed at the Supreme Court which reversed the two orders of the Court of Appeal. It then ordered the “CCK” to consider the merits of the licence application by the three media houses within 90 days.

The CCK was also ordered to consult all the parties in setting timelines for digital migration
pending the June 17, 2015 deadline. It was also to ensure that the licence issued to PANG “was duly aligned to constitutional and statutory imperatives” (whatever that meant).

The Supreme Court judgement was delivered on September 29, 2014. The events that followed this judgement are critical in answering some of the questions you ave been raising.

Three days after the judgement, the three media houses wrote to the CAK asking for negotiations for the licence.

On November 28, after long negotiations the CAK issued them with a Self Provisioning License (SPL). This is like an interim distribution licence to enable them start preparing to distribute their signals.

The CAK made it clear that the SPL would only be used to distribute their own content.
Good enough. At least they now had a paper allowing them to carry their own content without
sending it to China. . But there was the next catch. A licence without frequencies is just a
paper.

They now had to fight for frequencies to be able to move .
On December 15, 2014 they were given one frequency for Limuru site.

Remember Nairobi has four transmission sites and the country has 56. That date is very critical.

You have been asking what the three media houses were waiting for since 2007. Without the BSD or the Self Provisioning Licence they could never have ordered for digital Set Top boxes leave alone advertise
them.

Its like trying to open a clinic without a Certificate and without even being guaranteed you will get it.

To distribute digital signal you need transmitters, those set top boxes and a lot of infrastructure.
You cant procure a transmitter without frequencies. Transmitters are not like bread which you find baked and placed on the shelves. They are frequency-specific.

You have to give the manufacturer the frequencies in your possession for him to synchronize them with the transmitter being manufactured.
That is what PANG and GoTV have been doing in the past years.

Technically, it only meant the first time that the three media houses could order for a transmitter was after December 15, 201, when they received the first one frequency.

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The earliest that such a transmitter and the set top boxes could be manufactured, delivered to Kenya, installed and ready for transmission could never have been anytime before January 2015. Yet, the CAK still insisted that the switch-of would be on December 31, 2014. Who would you blame for
the delay?

The only alternative, taken at the 11th hour was to go back to Supreme Court for protection. That is what the media owners did on December 30, 2014.

As SC Paul Muite says, they moved to court at noon, because they were still waiting for final
word from CAK. Its was a point when failure to go to court meant their businesses were going to be shut down.

Using that one frequency given to them on December 15, 2014 they have now ordered for the transmitter and the set top boxes which they have started advertising.

In the meantime, the Supreme
Court has allowed them to continue transmitting their contenct on analogue platform till their latest issue is dealt with.
Back to the Self Provisioning Licence, something interesting happened. A similar licence was also issued GoTV in December last year.

If GoTv has been distributing digital signals in Kenya for two
years, why would they be issued with a SPL in December last year?

Someone has been driving a lorry on Kenyan roads for the past 10 years then in December last year he is issued with an Interim Driving Licence. How
is that? What was GoTV using all along? We will be talking more about GoTv later.

At the High Court judgement, Signet and PANG were well recognised as “companies carrying on business in Kenya and have been granted Broadcast Signal Distribution (“BSD”) licences by the CCK.
GoTV Kenya was described as “a television broadcaster carrying on business in Kenya.”

So is GoTV a broadcaster and should it then be a distributor?
Startimes Media Ltd was described as a temporary licence holder of a Broadcasting Subscription Management Service Provider. Just who are these people?

Anyway, now we have Signet and PANG who have “full” Broadcast Signal Distribution licence as well as GoTV, and ADN with Self Provisioning Licence and I don’t know who else.

Presently KBC and PANG have 4 frequencies each in all the the four sites GoTV has been given two frequencies, yet it has been allocated the same SPL as the media houses.

In other parts of he country, the media houses were given one frequency for 21 locations. Signet which is State-owned has been given 54 frequencies in 25 locations. The China firm PANG
has been given 120 frequencies to cover 50 locations. Just who has auctioned the country’s broadcasting industry to China and why?

As the local three media houses fight for the licence, the CAK may have just realized the need to give the same licence to many others to open up the play field. That is very healthy. That is the kind of competition that Kenyans want. Eventually, those who have no clue about Kenyan broadcasting terrain will still close shop.

Courtesy of Wahome Thuku.

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