It was meant to be simple. Broadcasters were supposed to change to transmitting their programs on a digital signal from an analogue signal as has been the case for the past 50 years or so. The bonus was Kenya would have fulfilled a global commitment to migrate its television broadcasting to a digital platform.
The global aim of moving all the world’s broadcasters to transmitting digitally instead of via analogue signals is to free up the world’s frequencies. Mobile phone use has surpassed by far any predictions of its global growth, especially as mobile phone communication has become pervasive in developing countries. This has increased the demand on telecommunications companies for frequencies that carry calls from one phone to the other. Television broadcasting has also expanded thus raising the requirement for more frequencies.
Frequencies, however, are finite. There are only so many to go around. A solution that the global administrator of these frequencies, the International Telecommunication Union, came up with was to move television broadcasting to a digital platform. Using an analogue signal a television broadcaster can only transmit one channel on a single frequency. Using a digital signal the broadcaster can transmit a multiple of channels on a single frequency.
When KTN, the country’s first privately owned television station, began its broadcasts in January 1990, it branded itself as KTN 62. This was the frequency it was transmitting on in Nairobi. In a digital world, KTN would be able to transmit several channels on the frequency 62 it has been using in Nairobi.
But how many viewers of KTN knew why it was initially called KTN 62 or cared even if they did? I would not be surprised to find out not many. And viewers should not be concerned about this frequency-shequency business so long as they are able to watch their channel of choice when they want to or need to. What really matters to a viewer is the television content and the cost of receiving that content. This would be the ideal situation.
Kenya is not ideal and from time to time it is part of the Kenyan spirit to get bogged down in the details. So instead of enjoying interruption-free viewing as the country moved to digital broadcasting, for 19 days the country’s main broadcasters were off air.
The dispute was around two issues: process and control.Entangled with the dispute but not really part of it are two other issues: the disruptive nature of technology and the oligopoly of the Nation Media Group, theRoyal Media Services and the Standard Group.
No one in the dispute over digital migration has said they are opposed to it. The Communications Authority of Kenya (CAK) is bullish about it to the extent they have a website dedicated to it (www.digitalkenya.go.ke). The country’s main broadcasters have also reiterated several times that they are for digital migration.
A major area of disagreement between them, however, is the process of digital migration.In 2009, the CAK issued the first broadcast signal distributor licence to Signet, which is owned by the state-owned Kenya Broadcasting Corporation (KBC).
A broadcast signal license allows the holder to broadcast programming on behalf of other broadcasters. This involves investing in equipment to receive content from broadcasters and then transmit it to viewers. How the viewer experiences this is through the set-up box that converts the digital signal into the image seen on the viewer’s television set.
For a small television station, working through a broadcast signal distributor, this means not having to invest in the infrastructure necessary to ensure potential viewers receive their programming. For the viewer this means receiving multiple channels on a single device.
For the regulator the challenge is ensuring that there is not a multitude of set-up boxes, possibly duplicating the same selection of channels. So in its wisdom, the Communications Authority of Kenya, or the Communications Commission of Kenya as it was known then, opened a tender for another broadcast signal distributor licence in 2011. This tender was won by the Pan-Africa Network Group (Pang), a company based in China that has no known track record in broadcasting in Kenya or elsewhere. Among the losers in that tender process were established privately owned broadcasters such as the Nation Media Group, the Radio Africa Group, the Royal Media Services and the Standard Group.
Multichoice, the company that operates the DStv bouquet of channels, has a licence to distribute its service in Kenya. Multichoice has been around for close to two decades but it has not been mentioned much in the controversy whether by the regulator or the aggrieved broadcasters. This could be because DStv is a subscription-only service transmitted via satellite, which limits its client base. The licences awarded to Signet and Pang are for distributing digital terrestrial signals, which is what the Nation Media Group, theRoyal Media Services and the Standard Group have been transmitting on the analogue platform to millions of viewers.
Once the three media houses lost the tender process, their dispute with the regulator began. The media houses chose the legal route to resolve their dispute. They began at the Public Procurement Appeals Board. When that failed they went to the courts, starting with the High Court. All this occurred between 2011 and 2015. As a result of the Supreme Court’s September 29, 2014 judgement, the media houses got part of what they wanted.
On November 25, 2014, they got a licence to distribute their programming as well as that of others. But it is not the same category of licence as the one given to Signet and Pang. The Supreme Court’s September judgement left some matters pending and on February 13 this year the court issued its final orders. It is in these final orders that the CAK got part of what they had wanted. The Supreme Court ordered that the digital migration timetable the regulator had set out stands, something the media houses had wanted postponed.
In the CAK’s mind the broadcasting sector was treated the same way the telecommunications sector was treated when the government decided to open up mobile phone services to competition. The first mobile phone service provision licence went to Safaricom in the late 1990s, when it was still a subsidiary of the Kenya Posts and Telecommunications Corporation. The second and third licences were put up for bidding. At the time there were no other established telecommunications operators in the country.
The broadcasting sector was different. By the time the government decided to implement a digital migration policy, there were several active broadcasters with wide coverage in the country. Then as part of its digital migration policy, the government decided to privilege one of the active broadcasters with wide coverage, the Kenya Broadcasting Corporation, with a broadcast signal distributor licence. Not the others.
Related to this is the other issue of control. This came to the fore during the 19 days when Citizen TV, KTN, NTV and QTV were off air across the country. The stations resumed broadcasting in Nairobi on March 5 after being off air since February 14 this year. They are yet to resume their broadcasts in the rest of the country.
When the regulator switched off the analogue transmitters of the Nation Media Group, theRoyal Media Services and the Standard Group on February 14, the official intention was to implement the final decision of the Supreme Court. The matter would have ended there if the television stations concerned only had to switch on their digital transmitter once the analogue ones had been switched off. After all, that Supreme Court decision also included the regulator being ordered to provide a broadcast signal distribution licence to the Africa Digital Network, the consortium formed by the Nation Media Group, the Royal Media Services and the Standard Group.
The catch was and is that the licence had only been issued on November 25, 2014, leaving the consortium with little time to prepare for the start of digital migration on December 31 last year. That was the date Nairobi was to switch to digital broadcasting. The rest of the country was to migrate in phases so that by the end of March the whole country would have gone digital.
So the choice they were left with was to have their programming distributed by either Signet or Pang while they got their house in order. On the face of it, it sounded like a straight forward business decision. Negotiate a deal with either distributor until such a time as when the consortium is ready to transmit its own programming. In fact, Signet and Pang had already been carrying the analogue signal of Citizen TV, KTN, NTV and QTV until the switch off. And there was the ruling of the Supreme Court that the principle of must-carry would apply so there was no reason for Citizen TV, KTN, NTV and QTV to be concerned about Signet or Pang not carrying their programming.
The must-carry principle means subscription-only providers are required to carry free-to-air channels as well as the other programming they supply their subscribers. Free-to-air channels are those channels that a viewer does not pay for to watch. Free-to-air channels finance their programming through advertising or grants from the state or other benefactors. The Supreme Court confirmed the regulator’s assertion that this is what applied in Kenya.
(For a comprehensive easy-to-understand analysis of the Supreme Court’s judgement read constitutional lawyer Wachira Maina’s five-part article that was published in the Daily Nation between January 23 and January 27 this year.)
The must-carry principle assumes good faith on the part of the broadcast signal distributor. It also assumes such a distributor is independent of government or corporate or other interests. It also assumes that in case a broadcast signal distributor fails to honour the must-carry principle then the regulator will be able to enforce that principle. In practice this means that even if a subscriber has not paid their monthly dues, Signet, Pang, Zuku or DStv or any other subscription-only broadcaster should not switch off the free-to-air channels. And if they do, the regulator should have a mechanism to enforce the must-carry principle. To date the must-carry principle has not been implemented in full in Kenya.
The must-carry principle is one part of the issue of control between the Africa Digital Network consortium and the Communications Authority of Kenya. The other part is whether Signet or Pang can be expected to respect the freedom of expression enshrined in the constitution. If Citizen TV or KTN or NTV and QTV aired a programme that made powerful or influential people uncomfortable would Signet or Pang allow it to air or would they switch off the channel for the duration of that programme? This is a possibility if the two are the interim providers of programming until the Africa Digital Network gets its own equipment up and working.
It becomes more of a possibility when one considers that the KBC has not invested in documentaries that take a critical look at issues of national importance. KBC’s poor financial situation could be one reason for that. Another could be it is state-owned and has a well-known longstanding culture of serving the interests of the powers that be. On the other hand, Citizen TV, KTN and NTV have all invested in documentaries that take a critical look at issues of national importance.
If they were dependent on Signet, a subsidiary of KBC, to transmit their programming what would happen to an episode of a Jicho Pevu/Inside Story that highlights the shortcomings of the country’s security apparatus in handling a major terror attack? The same question can be asked of Pang, especially since when it was awarded its licence it had no known background in broadcasting and is owned by Chinese individuals who have no known track record in the media or in defending freedom of expression.
One of the criticisms of the consortium of Citizen TV, KTN, NTV and QTV is that they are resisting digital migration because they fear competition since advances in technology have made it easier to become a broadcaster. With the prices of broadcast-quality cameras having dropped significantly in recent years it is easier to create programming for television because a key barrier to entering the broadcasting sector had been the cost of cameras. This means it is possible to create interesting programming on a low budget and compete for viewership with the more established broadcasters. And the producer of such programming is not dependent on those established broadcasters to air their programs.
As we have already experienced, digital migration is going to be messy and chaotic. And Citizen TV, KTN, NTV and QTV do stand to lose viewers in the transition. They will take a while to figure things out and some neophytes will take advantage and show them how it is done. But Citizen TV, KTN, NTV and QTV have deep pockets and they will be able to make the investments necessary to transition to digital broadcasting. Let us not forget they entered the broadcast business almost three decades after KBC had been the sole broadcaster in the country. Now they dominate the broadcasting sector.
This domination may be another reason Citizen TV, KTN, NTV and QTV were the subject of derision on social media during the 19 days they were off air. The four stations are an oligopoly, best symbolised by the consortium they formed to enter the digital broadcasting era. Early in his tenure as Information Minister Raphael Tuju tried to start a debate on how much of the media one company or a limited number of companies should own. Tuju was Information Minister between 2003 and 2005 and early in his tenure, Citizen TV, KTN and NTV were only just starting to expand their broadcasts beyond Nairobi. QTV was not even on air. But Tuju’s question did not get much traction.
The question of having a diverse ownership of the media is a global one. If it is not a good thing to have complete government control over the media, it follows it cannot be a good thing to have media ownership concentrated in a few private companies. Different countries have addressed this issue differently. Kenya needs this debate, irrespective of how digital broadcasting develops here.