With the exception of the set-top box control system, the implementation of the remainder of the digital television set-top box rollout programme will continue unabated, according to a Department of Communications (DoC) spokesperson. This statement follows on the heels of an affidavit in the notice of motion to the court by e.tv’s COO Bronwyn Keene-Young on 12 September 2012.
Dataweek approached the DoC and e.tv for comment on the matter, but both parties declined to comment further until the case is resolved.
The e.tv affidavit cites the proposed lawsuit as arising from what it deems the unlawful action of Minister of Communications, Ms Dina Pule, in appointing Sentech to manage the control system (also referred to as a conditional access system) for the set-top boxes needed for free-to-air (as opposed to satellite) broadcast channels.
Controlling interest
The programme to introduce set-top boxes and digital broadcasting transmission in South Africa dates back to 2008. In a letter to the SABC on 3 March 2011, the Director-General of the DoC wrote to the SABC regarding the implementation of set-top box control:
“The Department of Communications remains supportive of the concept of STB Control and hereby requests SABC, working in cooperation with other affected free-to-air broadcasters, to commence a process to select a suitable STB Control vendor.”
Keene-Young explained that the control system is a sophisticated form of technology and is a critical component for digital broadcasting. It involves the use of security software to encode the digital broadcast signal at the source of transmission (the broadcaster or a transmission centre) and then to decode it at the point of reception (set-top boxes in households).
She added that set-top box control will ensure compliance with a minimum set of specifications for set-top boxes and prevent set-top boxes which are not compliant with this standard from receiving the digital broadcast signal. It will also enable individual set-top boxes to be switched on and off, thus preventing the use of stolen units.
Thirdly, it will prevent the unlawful export of set-top boxes. And finally, free-to-air broadcasters such as the SABC and e.tv may well be unable to provide broadcasts in high definition without set-top box control.
Questionable decision
Keene-Young claimed in the affidavit that “...the Minister’s decision suffers from a series of fatal flaws: First, the Minister has no power to direct that Sentech will be responsible for managing the set-top box control system.
“Second, the Minister’s decision violated the Electronic Communications Act 36 of 2005, the Digital Migration Regulations and section 192 of the Constitution in that it interferes with the manner in which broadcasters engage in their statutory right to broadcast,” Keene-Young continued. “Third, the decision was made without any opportunity for e.tv or the SABC to make representations to the Minister.”
Keene-Young referred to the final national standard issued by the SABS in relation to the manufacture of set-top boxes, as announced by Minister Pule at the ICT Indaba in Cape Town on 6 June 2012:
“The STB decoder manufacturer is responsible for the implementation of the security requirements specified by the free-to-air individual broadcasting service licensees in South Africa...Manufacturers can obtain the security requirements from the free-to-air individual broadcasting service licensees in South Africa or from their appointed agents...” she stated.
Based on this public statement, Keene-Young claims that this therefore confirms that “...it is the free-to-air broadcasters or those appointed by them who will specify and deal with such security requirements/set-top box control systems.”
Keene-Young said that e.tv did not have any objections to the request on 27 July 2012 by the Minister for proposals/calls for tenders (RFP) with regard to set-top boxes. “However, the RFP – in setting out the specifications of the set-top boxes to be manufactured – indicated that the set-top box control/conditional access software to be used would be Nagravision,” she explained.
“Nagravision is indeed a set-top box control software provider and had submitted a tender to the SABC and e.tv during the set-top box control tender process...however, that tender has not yet been awarded to a specified bidder.”
She continued: “...Nagravision has an existing relationship with Sentech in terms of which it supplies the conditional access for certain satellite services provided by Sentech. The reference to Nagravision in the RFP issued by the Minister therefore appeared to indicate that the Minister was intent on pursuing her appointment of Sentech as being responsible for the set-top box control system.”
Keene-Young contends that the Minister’s decision would mean that the SABC and e.tv are forced to pay Sentech such costs as Sentech incurs in relation to its set-top box control agreement with Nagravision, together with such additional mark-ups as Sentech imposes.
“The costs paid by e.tv and the SABC in this regard will significantly exceed the costs to e.tv and the SABC if they were instead to proceed with managing the set-top box control system themselves and appoint their own software vendor...”
Keene-Young argued that “...this [the Minister’s decision] is quite extraordinary and unprecedented given the absence of any specific Ministerial power in this regard...” and: “The Electronic Communications Act contemplates that all elements of broadcasting will be done by broadcasting licensees or their duly appointed agents. It does not afford any role for the Minister in this regard.
“Thus, broadcasters (or their agents) are responsible not only for developing broadcast content but also for transmitting and distributing these broadcasts to members of the public,” she continued.
What about STB manufacture?
Keene-Young pointed out that all of the steps leading up to the final implementation of set-top boxes (the awarding of contracts to the set-top box manufacturers, the consumer means tests, distribution of the set-top boxes and media campaigns) apply whether e.tv is successful in its application or not.
“The difficulty in all of these steps – except perhaps the submission of the tender documents by bidders – cannot proceed or be completed without this dispute being resolved,” she said.
Dataweek will publish feedback on the outcome of any proceedings once they are finalised.
Timelining the decision
10 May 2012: Minister Dina Pule sent a letter to Dr Ben Ngubane of the SABC stating that the DoC was instructing Sentech to assume responsibility for the set-top box control system.
30 May 2012: e.tv’s attorneys – Rosin Wright Rosengarten – sent a letter to Minister Pule regarding e.tv’s concerns regarding her decision of 10 May 2012.
14 June 2012: e.tv met with Minister Pule. The Minister redirected the resolution to her representative, Roy Kruger of the DoC.
21 June 2012: e.tv met with Roy Kruger. It was agreed that a separate meeting with Sentech would be arranged.
13 July 2012: e.tv met with Sentech but the meeting was inconclusive because the Sentech representatives were “...not in a position to respond to e.tv concerns...”.
27 July 2012: The DoC issued a request for proposals for set-top box manufacture. The RFP stipulates conditional access to be used in the set-top boxes will be Nagravision and a Sentech representative is named as the contact person.
12 September 2012: Rosin Wright Rosengarten issued an affidavit in the notice of motion to the court.
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