THE CCK can now switch off analogue TV frequencies and push through the migration to digital TV. High Court judge David Majanja yesterday dismissed a case by three media houses seeking to halt the migration.
Viewers in Nairobi will now have to buy set-top boxes if they want to continue watching television. At the moment only GoTV, DSTV and Star Times are selling set-top boxes.
It is not clear if the Communications Commission of Kenya will enforce the digital TV switch immediately, or wait until after the Christmas holiday break is over.
Digital migration will be completed for the whole country by June 2014.
Judge Majanja ruled that the decision by the Communication Commission of Kenya to roll out digital migration does not contravene the right to broadcast.
"The three media houses cannot call upon the court to review policy decisions that have been taken on a consultative basis by applying specific experiences from other countries," he said.
The judge said that Nation Media Group, the Standard Group and Royal Media Services are not automatically entitle them to a transmission license just because they have invested billions of shillings in their broadcast facilities. He said the three media houses had an opportunity to apply for the license but did not do so.
"I further hold that granting the petitioners (the media houses) a favorable position based on their substantial previous investment would, without more, violate the right to equality and freedom from discrimination from prospective players in the media and broadcasting industry and would amount to a breach of Article 27," ruled Majanja.
The judge noted that such an approach would give the three media houses an unfair advantage over other media players. The three media houses had argued that the shift from analogue to digital broadcasting was unconstitutional.
Through lawyer Paul Muite, they requested a transition period of five years with both analogue and digital signals beamed side by side.
All members of the World Telecommunications Union, including Kenya, have agreed to switch to digital TV not later than June 2015.
The media houses also argued that the Ministry of Information and the Communications Commission of Kenya should not have contracted foreign pay-television firms to offer digital broadcasts as Article 34 of the Constitution bars government interference in media management.
According to Muite, the government should have introduced a Broadcasting Bill to create an independent broadcasting authority to spearhead digital migration instead of leaving it to the CCK which is part of government.
He added that the decision to deny a digital transmission licence to the media houses licences was discriminative and in bad faith.
The media owners complained that pay TV companies Signet Kenya, Star Times Media, Pan Africa Network Group and GoTv Kenya Limited were rebroadcasting thgeir signals without permission or compensation.
Only Signet (KBC) and Star Times have digital signal distribution licences from the Ministry of Information and the CCK.
Yesterday Justice Majanja said that that digital migration will unavoidably cause some inconvenience to Nation Media, The Standard, Royal Media and to Kenyans generally.
"No date for the switch-off will be convenient and perfect either now or in the future. 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," he ruled.
The judge declined to grant a temporary order to suspend his decision to allow the media houses appeal. Justice Majanja said the right to appeal does not automatically entitle the media houses to a temporary injunction.
Muite indicated that he will lodge an appeal immediately to challenge Majanja's decision.