Wednesday, November 28, 2007

DIGITAL BROADCASTING SWITCHOVER: SOME REGULATORY ISSUES



Michael Murungi
November 2007
Nairobi

Poor children in Ouagadougou, the capital of Burkina Faso, are treated to free film showings during the Pan-African Festival of Cinema and Television. The event, known as FESPACO, was one of the most respected film festivals in sub-Saharan Africa. (Courtesy http://www.britannica.com/eb/art-76162).


At the stroke of midnight at the end of 17th June 2015, Kenya will cease all analogue broadcasts of radio and television signals and switch over to the transmission of digital-only signals. On that date, all analogue television sets for which the owners will not have installed a digital signal converter will go black.

Digital broadcasting has emerged as a globally accepted standard for next-generation mass media. It presents a method of relaying radio and television signals with various advantages from analogue broadcasting. It enables a more efficient use of bandwidth and the bundling of multiple channels in one frequency. Moreover, digitally broadcast images, video and audio have a higher quality than their analogue counterparts. The transition from digital to signal broadcasting is arguably the most significant technological cross-over for television and is only closely rivaled, if not slightly surpassed, by the invention of colour television.

In the Regional Radio Conference organized by the International Telecommunication Union (ITU) in Geneva in 2006, a digital broadcasting plan was established for Africa, Middle East, the republics comprising the former Soviet Union and Europe. Various countries committed themselves to a series of time-bound events culminating in a complete switch-over from analogue to digital broadcasting.

In Kenya, the Ministry of Information and Communications established a committee of experts and stakeholders in the broadcasting industry in March, 2007. The committee, known as the Taskforce on the Migration of Terrestrial Television from Analogue to Digital Broadcasting, was to study and make proposals on Kenya’s approach to and transition timeframe for analogue switch-off. It carried out the study and presented its report to the Ministry in July 2007.

This commentary looks at certain legal and policy issues surrounding the migration to digital broadcasting.

The Need for a clear policy and legal framework
An event having the magnitude of the anticipated national digital switchover can scarcely be accomplished without having an effect on the spectrum of legal relationships, rights and obligations existing in society. The digital switchover is essentially an enforced uptake of new technology upon society. Unlike black-and-white versus colour television, which remains a consumer choice dictated largely by market forces and varying individual conceptions of viewing pleasure, with digital broadcasting the consumer is somewhat compelled to upgrade broadcast receiving equipment at the risk of experiencing a complete denial of broadcasting service.

Therefore, the national digital switchover should be preceded by the articulation of comprehensive policy, legal and administrative interventions that will preserve the legal rights and relationships or at least anticipate possible conflicts and make provision for their resolution. Hopefully, the National ICT Policy and the report of the Ministerial Task Force are the foundational steps towards a more detailed policy statement. Whereas the ICT policy only gives a cursory treatment of the subject, the recommendations given by the Ministerial Task Force will need to acquire the form of express policy commitments.

Beyond the realm of policy, the national digital broadcasting switchover programme will need to anticipate and resolve the following questions:

(a) Will a denial of broadcasting service to digitally non-compliant households constitute a violation of the constitutional right to receive information and ideas? (Is there any such thing as the public’s right to receive information through television?)

The old debate over whether Kenya’s jurisprudence has embraced the right to receive information through mass media as a constitutional norm cannot be put down with the same certainty as, say, two decades ago. Whereas section 79 of the Constitution of Kenya guarantees that except with his or her own consent, no person shall be hindered in the enjoyment of the freedom to receive ideas and information, at least until the decision in Nation Media Group Ltd v Attorney General [2007] eKLR, the Courts had declined invitations to regard this section as creating a negative duty on the Government (or, conversely, at least a legitimate expectation from its citizens) to ensure the unhindered dissemination of information. The constitutional court considered section 79 as embodying a universally accepted principle that “freedom of expression is a basic element of the public order of democratic society and … it presupposes both the widest possible circulation of news, ideas and opinions and the widest possible access to information by society….”.

Even though it is not expressly stated in USA’s Constitution, the United States Supreme Court and commentators have generally regarded the right to receive information as a natural corollary to the first amendment right to free speech. More particularly, when deciding the case of Red Lion Broadcasting v F.C.C. (“Red Lion”) in 1969, the US Supreme Court somewhat recognized the right to receive information in a television context.

An Act passed by the US congress set February 18, 2009 as the hard deadline for the transition to digital broadcasting. However, the certainty of this deadline has been thrown into doubt by the consumers lobby which has raised a first amendment concern: that TV owners who rely exclusively on over-the-air or analogue broadcasting have a constitutional right to receive information which right would be curtailed if an enforced digital switchover would disadvantage those among them who may not afford digitally compliant equipment[1]. A survey conducted by the Consumers’ Union and the Consumer Federation of America found that 39% of USA households (about 42 Million households) continue to rely on analog broadcasting for at least some of their TV viewing. Accordingly, even though the federal government has set aside billions of welfare dollars to give needy consumers a 40-dollar coupon as a subsidy for a digital-analog converter box, the entire coupon programme fund would only be sufficient for less than a half of these low-income households.

The right to receive information in Kenya has not acquired the judicial interpretation of the kind given by the US Supreme Court. However, it would not strain the meaning of section 79 of the Constitution of Kenya for a Kenyan court considering the implications of the digital broadcasting transition to construe it with the same breadth.

There are two ways in which the Government’s approach to digital broadcasting might appease the citizen and ultimately the constitutional court. First, it will attempt to win over the public, especially low income households, through education and information on the suitability of embracing the digital transition. Secondly, the Government might consider subsidizing or providing incentives for the acquisition of digitally compliant equipment – much akin to the coupon system in the USA. As a way of enabling consumers to handle the transition, this would be more preferable to imposing market level regulatory controls in consumer electronics. Already, these two measures have been included in the principle recommendations of the Ministerial Task Force.

(b) Does the existing legal regime provide an appropriate structure for the digital broadcasting switchover? (Is the law digitally compliant?)

Presently, the core pieces of legislation for the broadcasting industry include the Kenya Communications Act of 1998 and the rules made under it, the Kenya Broadcasting Corporation Act and the recently passed Media Act, 2007. Some of the recommendations of the Ministerial Task Force presuppose the existence of an appropriate legal framework governing certain important aspects of the transition to digital broadcasting. Perhaps in making the recommendations, the Task Force was optimistic about the prospects of the Kenya Communications (Amendment) Bill, 2007 (which has since been either withdrawn from the National Assembly or lapsed when the House was dissolved). Ultimately, the existing laws do not provide a secure legal basis for the transition to digital broadcasting. In the first instance, the law will need to expressly designate the Communications Commission of Kenya (CCK) as the regulator for the broadcasting industry. Though by a convention prevailing in the industry CCK has assumed certain regulatory and administrative functions over broadcasting, its regulatory ambit is limited by the Kenya Communications Act of 1998 to telecommunication, radio-communication and postal services. Secondly, the need to establish a legal framework for the issuing of licences to digital signal distributors and finally, the rationalization of the status and role of the Kenya Broadcasting Corporation in the industry particularly in designating it as the public broadcaster.

(c) How will the transition to digital broadcasting impact the universal service obligation?


In the context of broadcasting, universal services refers to the ability of all people to have equal opportunity and access to essential broadcasting services. The present-day model of a broadcasting industry is an oligopoly characterized by competing private broadcasters while a national broadcaster saddled with the universal service obligation serves a countrywide audience with terrestrial free-to-air broadcasts. With digital broadcasting and owing to the technological merger of television, the computer and the telephone, new business models will emerge in the broadcasting and telecommunication markets. This merger of technology and the provision of electronic data services through different infrastructure might alienate a cross-section of the population which might be socially or economically disadvantaged. As R. Tadayoni and Thomas Kristensen[2] pose: Will market forces and the evolution of technology ensure sufficient service to all or will it be necessary to make regulatory interventions in order to guarantee that some geographical areas or some groups of users are not cast away from the information society?

The foregoing concerns are not the bitter pill of new technology that a society must needs take at a certain time in its development. Rather, once resolved, they will be the relish with which the consumer will find the transition to digital broadcasting more appetizing.

* The writer is a legal expert on ICT (michaelmurungi@gmail.com).

[1] See generally, Eugen Ho’s “The Constitutional Right to Watch Television:: Analyzing the Digital Switchover in the Context of the 3rd Amendment” 56, AM. U.L. Rev 2007
[2] “Universal Access in Broadcasting: Solving the Information Problems of the Digital Age” Available at http://isoc.org/inet99/proceedings/3d/3d_1.htm, accessed November 20, 2007.