Why e.tv lost set-top box court case

Johannesburg - Set-top boxes without encryption will reduce barriers for South Africans wanting digital television services and government is within its right to embark on this route, according to Judge WRC Prinsloo of the Gauteng High Court.

These are key reasons for why Judge Prinsloo ruled against broadcaster e.tv in its challenge of government’s decision not to encrypt subsidised set-top boxes for digital broadcasts.

Earlier this year, broadcaster e.tv turned to the High Court to “review aspects of the Broadcasting Digital Migration policy finalised by the Minister of Communications" Faith Muthambi.

In particular, e.tv challenged Muthambi’s ammendment to the policy that highlighted that subsidised set-top boxes for five million households will not require encryption and that a set-top box control system will also not be mandatory.

Set-top boxes are devices that will allow analogue television owners to watch digital television signals when South Africa’s broadcast migration happens.

e.tv challenged this decision by asking that the first provision be set aside and that the second provision be amended.

e.tv argued that it wants set-top box controls to “prevent non-compliant STBs from receiving digital broadcast signals, thereby ensuring a uniform and reliable viewer experience”. The company also said that “without a fully conformant platform, broadcasters such as e.tv would in the future likely be unable to provide broadcasts in high definition”.

But Judge Prinsloo dimissed e.tv’s case and ordered e.tv to pay the costs of several respondents as well. One of those respondents is Muthambi.

In his judgement, Judge Prinsloo highlighted arguments from the likes of the SABC and M-Net that set-box controls would add extra costs to the government subsidised roll-out and that encryption is not necessarily needed for high definition content.

"The SABC, correctly in my view, submits that in the light of the aforesaid discussion about the use of encryption in the FTA (free-to-air) environment, a choice by government not to subsidise an encryption capability is entirely rational and reasonable," read the judgment.

"Equally, so the SABC submits, a policy that allows individual broadcasters to make their own decisions about encryption, but requiring those broadcasters to carry the costs of encryption themselves if they opt for encryption ...is entirely rational and reasonable,” added the judgment.

Judge Prinsloo also said that Muthambi was within her powers to choose not to encrypt subsidised boxes. Prinsloo further highlighted how the digital migration process, which has been delayed by years to date, must get underway soon.

Benefits of digital migration include opening more television channels and frequencies for faster mobile broadband.

"The BDM (Broadcasting Digital Migration) process must also get under way as a matter of urgency, and is something that affects the whole country, for the reasons mentioned. Against this background, I consider the argument by counsel that e.tv must wait until the Minister issues an instruction to STB manufacturers before e.tv can launch a review application, to be artificial and unconvincing in these particular circumstances,” the judgment read.

The judgment also said that Prinsloo couldn’t see how government policy on encryption had changed from when Minister Yunus Carrim previously headed up the Department of Communications.

“I see nothing in Minister Carrim's December 20 2013 statement (ostensibly relied upon by e.tv) which could have brought e.tv or any of the other role players under the impression that government subsidised STB's were to be provided with an encryption capability,” read the judgment.

"As far as the encryption amendment is concerned, provision for encryption capability was removed from the policy as far back as February 2013. e.tv did not that stage approach the court to complain about the removal of the encryption capability from the policy in 2012,” the judgment added.

In the view of Prinsloo, there was also sufficient consultation on the matter.

The judgement also said that "the application appears to be inspired by pure commercial motivation".

Broadcaster e.tv has yet to comment on the judgment.

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