11 April 2014

Kenya: Digital Switch Date Stays, Stations' Content Restricted

Nairobi — The Supreme Court on Friday barred the Communications Commission of Kenya (CCK) from switching off analogue TV signals until an application by the government challenging the Court of Appeal's judgment on digital migration is determined.

Justices Jackton Ojwang and Smokin Wanjala also ordered that the September 30 deadline for migration from analogue to digital TV be retained until the appeal is heard and determined.

"The Communications Commission of Kenya is prohibited from switching off any frequencies, broadcast spectrums or broadcasting services pending the hearing and determination of the intended appeal," Ojwang directed.

The government however got some reprieve with the court suspending the legal ramifications of the Court of Appeal's finding that the CCK, as currently constituted, is not the body envisaged in the Constitution to regulate the airwaves.

"The legal effect of the Court of Appeal's declaration that the Communications Commission of Kenya was not the independent body envisaged under Article 34(3)(b) of the Constitution, as a regulator of airwaves, is held in abeyance pending the hearing and determination of the intended appeal," Ojwang continued.

Pan African Network Group whose digital Broadcast Signal Distribution (BSD) license was cancelled on the grounds that CCK had no business issuing it with a license as it was not the independent body established by the Constitution that was promulgated in August of 2010, also got some reprieve.

"The declaration by the Court of Appeal that the BSD license issued to Pan Africa Network Group Kenya Limited is null and void, shall rest in abeyance, pending the hearing and determination of the intended Appeal," the court ordered.

NTV, KTN and Citizen TV's concern that such a stay order would allow Pan African Network Group, Signet, GoTV and Star Times to continue infringing on their intellectual property rights was also put to rest by the Supreme Court ruling.

"Signet Kenya Limited, Star Times Media Limited, Pan Africa Network Group Kenya Limited and GOTV Kenya Limited are hereby prohibited from broadcasting any content from Royal Media Services Limited, Nation Media Group Limited and Standard Group Limited without their consent, pending the hearing and determination of the intended appeal," it ruled.

The Attorney General, CCK and the ICT Ministry had moved to the Supreme Court in search of stay orders on the grounds that the Court of Appeal Judgment would have "Grave and most unpredictable consequences upon numerous other sub-sectors regulated by the Commission, all through since the promulgation of the Constitution of Kenya, 2010."

Immediately following the Court of Appeal judgment, Attorney General Githu Muigai had also expressed concern over the import of the order to the government to refund the fee paid by Pan African Network Group for its license.

"I don't know whether that would be Sh1 billion, 10 billion... 20 billion? I'm sorry to say we would have to pay it from national coffers. We would have to take money from health, from education, from roads, to pay the investor," he cautioned.

ICT Cabinet Secretary Fred Matiang'i also questioned the Appellate court's ruling, saying that the Courts had no business setting the digital migration deadline.

"The ministry is best placed to determine the actual timelines for analogue switch off. By assuming the powers of the Executive in directing the manner and time within which this process should be undertaken, the Court of Appeal was, on advice of the Attorney General, manifestly in excess of its jurisdiction," Matiang'i who spoke in the company of the AG said.

Through their petition, they have also taken issue with the Court of Appeal's directive to issue NTV, KTN and Citizen with a digital BSD license without going through the tendering process due to their investment in the sector.

"By directing the Communications Authority of Kenya (CCK's successor) to issue licenses against the said procurement process to persons some of whom had never applied for, the Court of Appeal was manifestly in excess of its jurisdiction," Matiang'i argued.

"What the ministry and CCK would like to see is a level playing field for everybody. For local investors, for foreign investors, for consumers, for everybody and that is what we would seek to persuade the Supreme Court," Muigai stated.

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