Kenya Digital Migration in Limbo, Government Takes it Up With Supreme Court

Old TV Set

Old TV SetIt took over 3 years for the Pan African Network Group to build their digital signal broadcasting infrastructure. PANG’s signal now covers 80% of the country. That could be counted as at least one milestone in Kenya’s digital migration. But the Appeals Court last week revoked PANG’s digital license, called for a reconstitution of the CAK (Communications Authority of Kenya) and suggested a procurement process that is for all sakes and intents anti-competitive. This greatly skewered the cumulative progress made in Kenya’s digital migration effort.

As part of the bench on the signal broadcasting case, Mr. Justice Musinga had no reason to flout procurement laws for the media owners. Industry stakeholders have expressed misgivings on the ruling as well. Partly because unfair market practice has been enforced by the judiciary, and there is fear of this rippling through other sectors of the economy. As a result, Kenya could now present greater risk to foreign businessmen as an investment destination.

The beneficiaries of Friday’s ruling were NTV, KTN and Royal Media – the biggest media outfits in Kenya. These media houses (represented by Media Owners Association) have over the span of more than 15 years invested over Kshs 40 billion/= in a network that is now endangered by the digital migration. Were this group to become a signal distributor they would have their commercial interests well catered for. But it is for this exact reason that stakeholders in the ICT industry do not favor the Appeals Court ruling. Since these media owners have business in content distribution, there is risk of unfair competition were they to acquire the facility of digital signal broadcasting.

Kariithi Mugo on CIO East Africa raises the flag on the ownership of the signal distribution license that would be awarded to media owners. Only 3 media houses have been visible in pursuing signal distribution rights. But there are more than just 3 media owners in Kenya, over a 100 such entities exist.

As the judgement was being doled out on Friday, COFEK – the consumer watchdog – claimed victory. COFEK’s part in the digital migration process has included agitating for more affordable set top boxes. This has led to a series of court hearings and delays imposed upon the country’s digital migration. The organization feels that CCK (now CAK) has fallen short of its duties as a regulator and as such the latter should be disbanded. In effect, all the mistakes in the digital migration process can be attributed to CAK. COFEK in an official statement goaded the government on the futility of crying out to the Supreme Court.

The government on its part is lining up its bets, and a lot of faith now lies with the Supreme Court. The ruling by the Appeals Court corrodes Kenya’s image as an investment destination through the outright stripping of PANG’s rights for digital signal distribution. Also stakeholders in the Kenyan ICT industry have torn into the ruling since it invalidates the work of CAK (the ICT regulator) and it routes out competition.

“Migration from Analogue to Digital TV is a process, not an event and therefore the Ministry is best placed to determine the actual timelines for analogue switch off, by assuming the powers of the Executive in directing the manner and time within the process should be undertaken the Court of Appeal was, on advise of the Attorney General, manifestly in excess of its jurisdiction,” reads the official statement from ICT ministry.

Digital migration has been part of the country’s National Broadband Strategy. In this sense, the regulator has made great advances compared to other countries in the region of Sub-Saharan Africa. The UHF band currently occupies the 450-700 MHz spectrum range which would be freed up once TV stations adopt digital signals. This particular spectrum range will play a big part in the deployment of mobile broadband in rural areas where internet access remains a challenge. Benefits to the consumer would include affordable internet, on the service providers side this could save on costs of deploying mobile broadband networks.