WRITTEN REPRESENTATIONS BY THE CIVIL SOCIETY COALITION: SAVE OUR SABC – RECLAIMING OUR PUBLIC BROADCASTER, ON ICASA’S DIGITAL TERRESTRIAL TELEVISION REGULATIONS
1.1. The Independent Communications Authority of South Africa (ICASA) in terms of the Electronic Communications Act (36/2005) published Draft Broadcasting Digital Migration Framework Regulations. The Regulations were published in Government Gazette, 3 October, Notice 1240 of 2008 with a deadline for comment of Friday 7 November 2008. Oral hearings were held on 1 December 2008. The Save our SABC: Reclaiming our Public Broadcaster (“the Coalition”) submitted written representations. The Coalition then presented at the oral hearings. At the oral hearings ICASA then gave all interested parties the opportunity to submit additional comments by 23 January 2009. The Coalition duly submitted these. ICASA then published in Government Gazette, 31 March, Notice 344 of 2009 the Digital Terrestrial Television Regulations (“the Regulations”) with a deadline for comment of 30 April 2009.
1.2. We, the Coalition thank ICASA for the opportunity to make these further written representations. (Please see annexure A for list of Coalition members.)
1.3. There are a number of issues the Coalition would like to address. These include: the definition of incentive channels, allocation of multiplexes, the public value test, and local content issues.
2. DEFINITION OF INCENTIVE CHANNELS
2.1. The Coalition has noted that ICASA’s definition of “incentive channels” does not include incentives to encourage audiences to move to digital, the incentives are rather to encourage broadcasters to take on the additional costs of the “dual illumination” period. The Coalition however believes it is critical to incentivise audiences to move to digital. If audiences fail to buy set top boxes all parties concerned will be adversely affected including ICASA, government (who wants to free up spectrum space), the existing broadcasters (who will have to bear the costs of the dual illumination period for longer), producers and of course the audience. The Coalition believes that the definition of “incentive channel” should reflect this important issue.
3. ALLOCATION OF MULTIPLEXES AND INCENTIVE CHANNELS
3.1. In the original draft Regulations ICASA allocated a specific number of channels i.e. 8 channels to each multiplex. The new approach appears to focus on the issue of capacity rather than specifying the number of channels. This is a positive development as it recognises that some channels might use less capacity than others.
3.2. However, there are still a number of gaps. In terms of the SABC the Regulations do not limit the number (or percentage of the multiplex) that the SABC could use for public commercial channels. In our two previous written submissions the Coalition has strongly made the argument that the SABC’s present funding model is unworkable at a number of levels – in particular it is unworkable in terms of its split between public and public-commercial channels. The original aim, as outlined in the Broadcasting White Paper, 1998, was for the public-commercial channels to cross-subsidise the public channels. SABC annual reports, however, provide no evidence of cross-subsidisation. Also, there have been clear indications from the SABC’s Chief Financial Officer, Robin Nicholson that the public-commercial TV channel SABC 3 has made significant losses. It appears therefore that the original purpose for having public-commercial channels has fallen away. As the Coalition has stated before, we therefore do not think that the SABC should be given any further public-commercial channels. All incentive channels should be authorised as public channels.
3.3. Further, in terms of e.tv and MNet, the Regulations have allocated 60% of the second multiplex to e.tv and 50% to MNet without stipulating the reasons for these particular allocations. The Regulations recognise that the remainder of these multiplexes will be reserved for new channels after the dual illumination period. But this suggests there will be unfair competition after the dual illumination period. For example if only one new commercial channel were to be licensed it would not have the same capacity as e.tv – let alone if more than one were licensed. This seems to defeat the purpose of migration i.e. to allow more players and competition.
4. PUBLIC VALUE TEST
4.1. As stated in the Draft Regulations, and now in the Regulations, authorisation of channels for public broadcasting will be subjected to a Public Value Test. As stated previously the Coalition supports the concept of the Public Value Test but needs to highlight certain gaps.
4.2. To summarise the Public Value Test:
o Focuses on a number of requirements including the level of educational programming; the distribution of different languages; the promotion of cultural diversity etc. in terms of each incentive channel.
o Insists the SABC include in all its applications for incentive channels a market impact analysis, including the implication of the proposed channel on diversity of programming, other DTT services and subscription television services.
o States that the authorisation process may be subjected to a public process (our emphasis).
o States the authorisation process will be concluded within 60 days “of the filing of the request for public service channel authorisation” (Regulation 9(3)).
Finally, the Public Value Test states that public commercial channels will not be subject to this process. They will be subjected to the same authorisation requirements as those set out for commercial services.
4.3. First, in terms of the gaps in the Regulations, the Coalition believes that the principles included in the Public Value Test, as it stands, assume that each channel will cover all the requirements listed i.e. educational programming, the distribution of different languages etc. In a multi-channel environment however the bouquet of PBS channels need to cover these principles as a whole. The Public Value Test needs to reflect this understanding. We propose, in line with the SABC’s own submission, that the Public Value Test be applied to the bouquet of PBS channels as a whole rather than to each incentive channel.
4.4. Second, the principles outlined above e.g. the need for educational programming, the coverage of various languages appear to be a reflection of some of the SABC’s Charter requirements but these are not clearly defined, measurable targets. As discussed in our previous submissions we believe the Public Value Test should rather reflect public value at three different levels - value for money, value to the individual citizen and value to society. In terms of “value for money”, the SABC needs to cost its offerings and demonstrate how it would be able to sustainably provide for these. In terms of “value to the individual citizen” the SABC needs to outline its proposed offerings and show how each channel would enhance diversity of content and language across its bouquet of public channels. Further, the SABC needs to demonstrate that a variety of different audiences would actually be interested in watching its programming. Finally, in terms of “value to society” the SABC needs to demonstrate that its offerings, across its bouquet of channels, will contribute to the deepening of democracy, the fulfilment of its goals outlined in its Charter and ensure greater diversity of content within the broadcasting environment as a whole. ICASA needs to specify the kind of documentation required to demonstrate the above. The Regulations as they stand do not require the SABC to demonstrate it has the necessary funds to run these channels – nor do the Regulations require the SABC provide a detailed programming schedule. The Coalition however believes that this is critical information that must be provided in terms of the Public Value Test.
4.5. Third, there is no clear indication that ICASA will be conducting the Public Value Test, there is only an indication that they will be finalising this process. The Regulations need to specify clearly that ICASA will be conducting the authorisation process in its entirety. Further, there needs to be more information on the steps included in the Public Value Test process.
4.6. Fourth, as discussed in our previous submissions, the Coalition believes that ICASA should make all reasonable efforts to inform and educate people about the Public Value Test - what it is, why it is important, and how it is being applied, and how to get involved. This will inform citizens on a matter of great importance to them. It will also indirectly serve the needs of broadcasters as it will encourage public participation. This will serve to enhance any application they make in terms of the Public Value Test.
4.7. Fifth, linked to the above, we want to reiterate the positions we have put forward in our previous submissions that public participation must be included as an essential component of the channel authorisation process.
4.8. Sixth, we want to reiterate our argument made in 2.1 above that no new public commercial channels should be allocated to the SABC so the need for public commercial channels to be exempted from the Public Value Test falls away.
4.9. Seventh, the Regulations are not clear about what happens if the SABC fails to propose channels that are acceptable to ICASA. There is no stipulation that the SABC (or MNet or e.tv) have to use their allocations or face losing these. The Coalition is worried that the SABC may not be in a position to start any of the new services envisaged due to its lack of resources. It is also conceivable that e.tv and MNet simply use content they already hold (repeats and excess inventory) to fill the space. If this is the case there will be no incentive for audiences to buy set top boxes and to migrate to digital. The incentive to migrate will only be compelling if excellent new content is on offer. The Coalition therefore suggests that if broadcasters don’t take up their allocations then they should be faced with competition from new players.
5. LOCAL CONTENT REGULATIONS
5.1. The Regulations do not address the critical issues of local content and language requirements, except briefly in the Public Value Test. This is a serious oversight. Local content regulations have been an important cornerstone of regulation from the passing of the original Independent Broadcasting Act, 1993.
5.2. Further, what is worrying is that MNet and e.TV have stated clearly that they do not want to be encumbered with any local content requirements. The Coalition believes that all broadcasters must be regulated in this regard. Our hard won gains in terms of ensuring viewers have access to local content and that local content industry is developed, will be seriously undermined if this is not enforced. ICASA needs to pronounce on these issues.
4.1 The Coalition thanks ICASA for the opportunity to make these further written representations and trusts that its concerns will be addressed.
4.2 Please do not hesitate to contact Ms Kate Skinner, the Coalition’s Campaign Coordinator, (contact details provided below) should ICASA have any queries or require any further information with regard to this submission.