Submissions

30 April 2009

Submission by Media Monitoring Africa

Introduction

Media Monitoring Africa (MMA, formerly the Media Monitoring Project) welcomes the opportunity to make a submission to the Independent Communications Authority of South Africa (ICASA) on the Digital Terrestrial Television (DTT) Regulations, and requests that should the Authority decide to hold further public hearings on these regulations that we be allocated time to make oral representations as well, in order to elaborate on our submission.

This submission will address the following areas:
1. MMA’s Constitutional Assumptions.
2. The relationship with the MMA and the Save our SABC (SOS) – Reclaiming our Public Broadcaster Coalition.
3. Areas of concern relating to the draft regulations.
4. Summary of recommendations.
5. Conclusion

1.  MMA’s Constitutional Assumptions

As a human-rights based NGO, MMA approaches all broadcasting regulation within a human rights-based framework.  MMA’s point of departure therefore includes similar values to those originally contained in the Broadcasting Act, where in the preamble it noted that,

“[T]he South African broadcasting system comprises public, commercial and community elements, and the system makes use of radio frequencies that are public property and provides, through its programming, a public service necessary for the maintenance of a South African identity, universal access, equality, unity and diversity”
(Broadcasting Act No.4 1999)

Within this rights-based framework, MMA understands the institutional role of the SABC as fundamental not only to fulfilling its role as a public broadcaster but also to realising citizen’s constitutional right to receive and impart information.  Further, as a key public institution and core component of the media environment in South Africa, the SABC’s role in entrenching South Africa’s democracy cannot be underestimated.

Given its function and purpose as a public broadcaster, when the SABC’s ability to fulfil its role as public broadcaster is being discussed, or when related regulations face potential significant change, South Africa’s democracy is also under the spotlight.  In this light, we respectfully draw attention to the core objectives of the Authority ICASA, as the constitutionally established body, in terms of the ICASA Act:

“(a) regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society, as required by section 192 of the Constitution;
(b) regulate telecommunications in the public interest;”
(ICASA ACT 2000)

As such, ICASA has a clear and fundamental obligation to adhere to principles of diversity, and fairness, and to act in the public interest in all matters relating to the SABC and the broader broadcasting environment.  In MMA’s view, the Authority also has an equally clear responsibility to ensure all relevant regulations and legislation clearly and unambiguously entrenches and protects the independence, integrity and the public mandate of the SABC, as well as the broader broadcasting environment.  Therefore, MMA respectfully submits that any regulations relating to the SABC must be written to serve the best interests of the people of South Africa and should also respect the fundamental principles of diversity and fairness.

The current proposed regulations, while clearly only focused on a transitory period, have immense significance for our broadcasting environment.  MMA therefore welcomes the DTT Regulations as a means of ensuring the application of theses principles during the digital migration period.

2 MMA and the Save our SABC – Reclaiming Our Public Broadcaster (SOS Coalition)

MMA is a founding member of the civil society coalition, Save our SABC – Reclaiming Our Public Broadcaster (SOS Coalition).  This submission is to be read in conjunction with the SOS Coalition Submission, and thus MMA fully supports the content and aims of the SOS Submission.

3.  Areas of concern relating to the draft regulations

MMA welcomes two particular elements of the DTT regulations:
1.  The regulations have made a shift away from allocating channels to specific broadcasters and have instead stipulated percentage usage of each of the different multiplex’s.  Not only will this allow for greater and more efficient usage of the technology but it is also clearly in line with the requests made by the various interested groups during the initial hearings into the digital migration process.
2.  The regulations have addressed a clear inequality in the original draft framework by allocating more equitably the mulitplexes particularly in regard to e-tv.  MMA notes with concern however that M-net has retained its peculiarity of holding both a subscription satellite service and a subscription terrestrial broadcast service.

3.1 Catch 22 - Entrenching an unstable funding model and deepening a crisis

The DTT regulations, by allocating “commercial services” to the SABC, not only serve to indirectly perpetuate the existing funding structure of the SABC, but they continue to entrench a hopelessly inadequate cross subsidisation model.  At best the current model for the SABC has resulted in a schizophrenic public broadcaster not aware of, in some cases, or unable in others to adequately fulfil its public service mandate, and at the same time being in the bizarre position where its public service channels are cross subsidizing its commercial ones.  At worst the model has resulted in unfair competition in the sector, where the public broadcaster has a virtual monopoly of the advertising.

It is entirely uncontroversial to assert that the SABC’s funding model needs to be significantly altered, if the SABC is to fulfil its potential as South Africa’s public broadcaster.  The need for change has been publicly stated by the Department of Communication, commercial broadcasters, NGO’s (including MMA and the SOS Coalition), the SABC, and it has been debated in ICASA hearings.  It is most concerning that the DTT regulations continue to entrench the existing model, when it is clear that the model needs to be dramatically changed.

In MMA’s previous submission, as well as the SOS submission it was noted how important it was that a full review of Broadcasting Policy be carried out.  MMA understands that the DOC has already made substantial progress in drafting new broadcasting policy. It is clear however that the timelines for the DTT regulations are extremely tight, and while they may not be able to be held off until a new funding model for the SABC has been researched, debated and determined MMA submits that by not addressing the funding model in these regulations the challenges are merely perpetuated in the hope of short term commercial gain but long term instability, not only for the SABC but the broadcasting sector as a whole.

3.2 Diversity – critical to DTT broadcasting

MMA notes that the principle of diversity is, with limited exceptions, (9(2)c, 9(4) and 10(1)c), absent from the DTT regulations.  Not only is the principle essential in terms of ensuring diversity of views and programming, but is also an essential element of a public value test, as well as being a core principle to be applied across the channels available as well as in ownership.

The current references to diversity, while being a significant improvement over the previous draft DTT regulations, appear to interpret diversity as being a factor in market impact analysis.  (See Section 9(4) and 10(1)c).  Precisely what is meant by a Market Impact Analysis is not clear as the term is not defined in the regulations.  It seems reasonable to assume however that the inclusion of the word “Market” in the term suggests that diversity in this context could be understand as having a particular commercial value.  While the inclusion of this element may be relevant in some cases, for example in deciding to provide a motor-sport channel or service for audiences, the concept falls short in public broadcasting principles.  MMA’s understanding of the concept of diversity goes beyond the identification of a niche commercially viable audience/sector.  Indeed many of the key audiences in South Africa are would probably not constitute commercially viable audiences.  For example, it seems essential given the status of South Africa’s children that a range of programmes and services are made available to our children by all our broadcasters, the importance of early childhood development programming is necessary for our developing nation but it is unlikely to satisfy the criteria of a Market Impact Analysis.

The virtual absence of diversity both in word and concept throughout the regulations strongly brings into question whether the DTT Regulations are consistent with ICASA’s objectives.

3.3 Multiplex and Capacity Allocation

As noted the shift to allocating capacity instead of channels to broadcasters is welcomed.  Some key issues however remain:

3.3.1 Giving M-net an unfair advantage.

It remains quite extraordinary that M-net should be allocated 50% of a multiplex when the very basis for M-net and CSN as terrestrial licences have been superceded by Multichoice’s satellite broadcasting bouquet.  MMA is not aware of any other broadcaster internationally that has both terrestrial subscription broadcast and satellite subscription broadcast licences.  Given that these resources are limited and the apparent success of Multi-Choice in the satellite market, and considering that these resources should be utilised in the public interest, it continues to beg the question as to whether M-net should be given any of the available resources.  It seems that the current allocation in the DTT regulations, together with Multi choices existing satellite subscription service works strongly to the advantage of M-Net and gives them and unfair advantage over e-tv.

3.3.2 SABC: Seeking clarity on application of the Public Value Test

Regarding the SABC, it is not clear as to which conditions will have to be satisfied for the proposed commercial services in Multiplex 1.  A reading of regulation 9. Multiplex 1 (public Broadcasting Services) seems to suggest by the fact that all SABC services will be carried on this multiplex, that the public value test will apply to all channel applications.  This view is further supported by 9(1) which states:

“Authorisation of public channels as allocated in Multiplex 1 will be subjected to a public value test and may be subjected to a public process.”

An apparent limitation however appears when reading Definition of Public Value Test where it states,

“”Public value test” means a requirement that the authorisation of the digital incentive channels to the public wing of the SABC should seek to meet..”
(MMA emphasis)

The definition seems to indicate that the public value test will only be applied to those channels within the “public wing” of the SABC.  Setting aside for a moment the deep concerns regarding granting SABC public commercial/ commercial channels, the question arises as to why the public value test should not be applied to the commercial channels of the public broadcaster?

Indeed the apparent lack of clarity raises the more central question as to why it is that the public value test is only being applied to the public service channels.  Surely as a limited public resource, and in order to make the most effective and valuable use of the limited resource, it is essential that the public value test is applied to all broadcasters.

As set out below there are some clear challenges that need to be resolved regarding the public value test and MMA is not suggesting that the same standards would have to be adhered to for commercial broadcasters versus the public broadcaster.  It does however appear to be out line with existing analogue broadcast licence practice where precisely because broadcasters are utilising a finite public resource commercial broadcasters, like e-tv, have to ensure significant compliance with public service oriented principles.

MMA recommends that when applying for any channel all broadcasters comply with a public value test, the limits and precise terms need to be clarified but in the interest of meeting the needs of South Africa’s public it is essential that this is incorporated into the regulations.

3.3.3 SABC, Commercial channels and the Public Value Test:

MMA would like to reiterate the position adopted in both MMA’s submission as well as that of the SOS Coalition.  I.e. given the challenges with the SABC’s funding model, it would seem that credible research is required before taking any decision on whether to allocate the SABC the authority to offer commercial a channel/s.

MMA supports the SOS Coalition submission regarding the importance of public participation in the authorisation of channels.  MMA submits that there is a clear need for greater levels of public participation, not only in the authorisation of channels, but also in assessing the allocation of resources to broadcasters.  Not only is greater public participation in these areas essential for basic democratic process, but it is also likely to yield beneficial material and views that may greatly assist the Authority in determining resource allocation.

3.3.4 Community Television

MMA welcomes the inclusion of community television in the regulations but is concerned about the apparent special provision made for Trinity Broadcasting Network (TBN).  Despite TBN’s prominence on the continent and its potential ability to satisfy the financial implications of digital broadcasting it is not clear why TBN has been included as the only community television broadcaster.  MMA respectfully requests reasons for TBN’s inclusion over and above any other community broadcast service.

In addition the reason for the 10% capacity allocation of the public service multiplex is not clear.  MMA recommends rather that bandwidth in Multiplex 3 be allocated for community broadcasting networks.  Given the dramatic changes in technology it seems fair to assume that while financial considerations may currently exclude most community broadcasters this may well change.  As the regulations stand a minimum of 50% bandwidth is still available in this multiplex.

3.4 The Public Value Test

MMA endorses the critical points made on the Public Value Test in the SOS Submission.  As highlighted in MMA’s previous submission, MMA welcomes the Public Value Test concept, but submits that in addition to addressing the following key areas, public participation should be explicitly integrated and not mentioned only as something that may be included.

Key areas requiring further attention:

3.4.1 MMA’s and the SOS Coalitions reading of the test as it stands implies that the public value test will be applied to each channel.  While elements of the test need to be satisfied within the proposed channel in a multi-channel environment it is important that the test is applied to the overall service and channel offerings of each of the broadcasters. 

3.4.2 MMA further reiterates the issues raised in the submission made by the SOS Coalition an the MMA in which we highlighted that the public value test needed to address, value for money, value to the individual citizen and value to society.  Critical to each of these are the concepts of meeting the diverse needs of South African audiences as well as several of the other criteria listed in the DTT regulations in 9(2).  MMA submits that together with a weighting system that could be developed the public value test could be applied to all broadcasters, with greater emphasis being placed on the services to be provided by the SABC.

3.4.3   MMA notes that in line with our submission that the public value test be applied to all broadcasters to varying degrees, it is only fair and appropriate that that other conditions that are applied to the commercial broadcasters are applied to the SABC as well.  In particular MMA submits that the SABC is also required to submit proof of financial viability as well as a detailed programming plan including the provision of local content as set out in 10(1)e and f.

3.5 Public Participation – maybe?
MMA notes with concern that the level of public participation in the DTT Regulations is not only limited to a few areas, namely in the Definition of Public Value Test and 9, but it is also conditional.  MMA submits that the limited levels of public participation are counter productive, potentially anti democratic, and contradict the spirit and intention of the Constitution and foundation of the Authority.

MMA also submits that this would fundamentally constitute poor and unfair regulatory practice in an area that involves the public broadcaster.  One of the greatest advantages of the developments of communication technology is that it has enabled media to engage with audiences, at deeper and broader levels, in ways never before imagined.  It has enabled audiences to become producers of their own content and it has brought an explosion of content and information.

In their current form, the DTT regulations do not take these factors into consideration. Instead, they seem to potentially operate on the basis of excluding members of the public, rather than seeing the public as integral to the process that the regulations have been designed to address.  A quick review of South Africa’s democratic legislation and policy support a view that those pieces of legislation and policy that have the greatest buy in, that are indeed the most workable and often most progressive, all had high levels of public participation.  Some examples include the Children’s Act and Sexual Offences Act.  Admittedly, these still have their flaws, though they are primarily the result of last minute changes and not the public participation process.  Similarly, those that have seen limited public participation often have significant practical challenges, and in the worst case have been sent back to the legislature by the president (for example, the Film and Publications Amendment Bill).  Towards the end of 2008 we witnessed the Protection of Information Bill being sent back to the legislature to resolve constitutional concerns, concerns that were pointed out during public hearings.

3.6 Incentivising Digital Migration, where are the audiences?

There is emphasis in different sections on the need to incentivise broadcasters, which is clear and understandable. However, there is no mention made of the incentives to ordinary members of the public as to why they should migrate to DTT.  Indeed, the DTT regulations are silent on any obligations that broadcasters should have in encouraging public participation in the digital migration period.  The Authority, broadcasters, government surely bear a fundamental obligation to ensure members of the public are informed and have access to information about DTT and digital migration.  Not only will the absence of this information lead to further confusion about DTT, and hamper broadcasters in getting people to migrate, it also effectively limits public participation in a key area of communication.

In this regard MMA reiterates its support of the SOS Coalition’s submission that an additional objective is added to the regulations.  The SOS submission states,

“2.1 The Coalition proposes that the objectives for the Regulations include a clause highlighting that they aim to provide a framework to ensure audience needs and expectations are met through ensuring access to choice, quality programming, and accessibility of a range of services.  The importance of emphasising the need to focus on viewers needs in order to ensure an effective and efficient migration from analogue to digital television is dealt with in more detail in the submissions below.”

MMA would like to substitute the word “diversity” for “range”, where it currently states, “..and accessibility of a range of services.”
The importance of adding this objective is that it will ensure that broadcasters provide incentive to their audiences to switch to digital.

We would also like to reiterate the SOS Coalition’s submission that the DTT Regulations seem to allow broadcasters to have the allocated capacity in perpetuity irrespective of whether they utilise it or not.  MMA submits that a deadline or deadlines are set (It may be necessary given the significantly greater public service commitments of the SAB, as well as its current crises, that they have a longer period to fully utilise their capacity) by which time broadcasters need to have utilised the allocated capacity effectively and efficiently, failing which it could be offered to other broadcasters.

3.7 “Conditional Access” – Gone but not forgotten?
MMA notes that the concept of Conditional Access has been excluded from the DTT regulations.  The concept is important as MMA raised the critical issue in its previous submission (repeated below) the danger of the SABC abusing the technological capabilities of the set top box and denying access to public service channels to those who may have failed to pay their television licences.  In omitting the concept from the current DTT regulations MMA respectfully submits that the regulations may give practical application to the expression silence is consent, thus allowing the set top boxes capabilities to be used unscrupulously and punitively.

In the previous draft regulations the concept of Conditional Access was included.  .  Conditional Access (CA) was defined as:

i. “the protection of content by requiring certain criteria to be met before granting access to this content;
ii. a plug-in software applications configured in conjunction with the operating system of a Set Top Box with which broadcasters can restrict access to all or part of their service to a particular group of viewers;
iii. a method of blocking access to programming, access only being allowed with the correct codes or card to “unlock” the programming ; or
iv. a system that provides access to users when specific requirements are met, which requirements may include identification, authenticity, registration, payment or combination of all these and other factors.”
(Draft Regulations)

While the necessity of such Conditional Access can be understood in some circumstances, including preventing children having access to adult-material channels, MMA submits that this Conditional Access should not be simply extended to the SABC or other free to air broadcasters.  While in the case of the public broadcaster it may be reasonable for some access to be limited, it seems to allow for a situation where access to broadcasting becomes denied over un-related issues such as failure to pay TV licences.  However frustrating the collection of licence fees may be, (MMA submits this aspect of the SABC’s funding model also needs to be reviewed), it would be a violation of a person’s right to access to information if access was denied due to non payment.  The role of the public broadcaster in informing people is crucial to South Africa’s democracy.  It is essential therefore that the Draft Regulations are amended to ensure that, in the case of the SABC or other free-to-air broadcasters, access cannot be denied to any person for non-payment of licence fees.

3.8 Monitoring and Compliance
MMA notes with concern that the DTT regulations are silent as to whether the reporting, monitoring and compliance requirement currently in place through broadcasters licence conditions, local content regulations and other relevant regulations and conditions will simply be transferred or if the Authority plans on introducing new ways and means of monitoring compliance.  It would seem preferable, given that these regulations are for a transitionary period only that a clause is inserted into these regulations that all existing monitoring, compliance and reporting requirements as stipulated in licence conditions, local content regulations and other relevant conditions are applicable for each digital channel being broadcast.

4.  Summary of recommendations

MMA submits that there are a number of challenges that need to be overcome in order for the DTT Regulations to fulfil their objectives.  MMA submits the following recommendations which arise from the points raised above.  MMA Recommends:

4.1 Broadcasting environment:
4.1.1 It is essential that there is a full review and overhaul of broadcast policy and legislation;
4.1.2 Equally important, a review of the funding model of the SABC and the impact of the revised model on these regulations is required.

4.2 An addition to the objectives of the regulations to entrench the regulations serving the public interest as well as entrenching public participation;

4.3 That M-nets unfair advantage is removed, or failing this that its DTT capabilities are on similar levels to those of community broadcasters;

4.4 Provision is made for a broader range of community television broadcasters and that capacity is allocated on the third multiplex.

4.5 The greater inclusion in the regulations of the concept of diversity, both in terms of the incorporation of the word and meaning in the regulations;

4.6 That the Public Value Test is applied to all broadcasters to varying degrees.  That elements of it are applied to the proposed channel and that the channel is then viewed as forming part of a bouquet channels on offer from the broadcaster that satisfies the public value test more broadly.  In addition MMA recommends that various aspects currently only applied to commercial broadcasters should be applied to the SABC as well. Specifically MMA recommends that SABC is also expected to provide, proof of financial viability as well as a detailed programme schedule and local content considerations;

4.7 That a clause is inserted in the Regulations to ensure that Conditional Access cannot be used by the public broadcaster or other free to air broadcaster to prevent access to programming and information, as a result of non-payment of a licence fee or any other punitive reason;

4.8 That measures are put into place to ensure effective monitoring and adherence to the broadcasters’ commitments.

4.9 Public participation, as critical not only to the success of digital migration but also to principles of public broadcasting is clearly and unambiguously entrenched in the DTT regulations.

5.  Conclusion

In conclusion, it is perhaps worth considering what the implications would be if the concerns contained in MMA’s submission as well as those of the SOS Coalition are not addressed.  In the first instance, it is likely that the regulations will fail to fulfil their main objectives to see a smooth transition of analogue to digital transmission.  This will likely be the case, as the regulations in their current form entrench the existing funding model of the SABC as well as offering little incentive to members of the public.  Secondly, failure to address the concerns raised will result in watered down and potentially non existent public participation in subsequent processes. This would not only be anti democratic, but would also be contrary to the principles of the Authority.  Thirdly, it will significantly undermine the positive initiative being taken to regulate digital migration.  In order for the process to be successful, buy-in from a range of key stakeholders, including ordinary members of the public, is essential.  In their current form, the regulations would serve to alienate people from the Authority as well as the process of digital migration.

MMA thanks the Authority for the opportunity to make this submission, and hereby requests, that if there are to be further public hearings that MMA is allocated time for an oral presentation to expand further on the importance of this submission.

Please do not hesitate to contact me at the numbers below should there be any queries over our submission, or if we can be of assistance in developing any of the recommendations further.

Yours sincerely,
William Bird
Director
Media Monitoring Africa
Email: williamb@mma.org.za
Tel: 011 788 1278