Legal battle looms over M-Net

Johannesburg - The National African Federated Chamber of Commerce's broadcasting consortium challenged in court papers on Monday Icasa's decision to allocate new television channels to M-Net.

The papers, filed in the High Court in Johannesburg, also challenged Digital Terrestrial Television (DTT) regulations, as well as the Independent Communications Authority's "failure" to consider black owned businesses in the allocation of channels.

"We filed papers this morning in the Southern Gauteng High Court... they (Icasa) have 14 days to respond," said Nafcoc spokesperson Andisa Ramavhunga.

In terms of the DTT regulations published in July, the SABC was to be allocated 100% of multiplex 1 while free to air channel e-tv was to be allocated 60% of multiplex 2 and M-Net 50% of multiplex 3.

A multiplex is a digital channel on which multiple signals can be transmitted, which means that several channels can be broadcast simultaneously on one multiplex.

"In its position paper, Icasa reasoned that the creation of the third Multiplex and the allocation of 50 percent thereof to M-Net was due to concerns about the feasibility of e-tv and M-Net sharing a single multiplex, being Multiplex 2.

"This was based on the fact that e.tv was contracted to Sentech and M-Net used Orbicom as its signal distribution service. I submit that the creation of Multiplex 3 and the allocation of 50 percent thereof to M-Net is ultra vires the Ministerial Policy which sets out the parameters of migrating from analogue to digital broadcasting," Nafcoc said in court papers.

By creating Multiplex 3 and allocating 50% to M-Net, Icasa acted outside the parameters of the broadcasting digital migrating policy, and the Broadcasting Act.

"Section 2 of the Act sets out the objectives of the Act and provides that the Act is intended to promote competition within the ICT sector. It is abundantly clear that Icasa has failed to adhere to the provisions of the above Act in relation to competition, more particularly in awarding 50% of Multiplex 3 to M-Net.

"In publishing the Regulations of 3 July 2009 the first respondent has completely disregarded its obligations imposed in terms of chapter 10 of the Act and the broadcasting digital migration policy," it said.

Allocating more channels to M-Net will further strengthen its dominance in subscription television as it "currently holds a monopoly and is a dominant player in the provision of subscription television".

This, Nafcoc said, had prevented new licensees like e-sat, Telkom media, on ditigal media (ODM) and walking on water (WoW) to establish their pay tv broadcast platforms.

"For the reasons that I have stated above, I submit that the first respondent's Regulations are anti-competitive and contrary to the provisions of chapter 10 of the Act and the broadcasting digital migration policy and fall to be reviewed and set aside on those bases.

"I submit further that in accepting the arguments made by e.tv and M-Net about the inability to co-exist within the same Multiplex and the consequent allocations of Multiplex 2 and Multiplex 3, the first respondent has acted under unlawful dictation," it said.

Icasa spokesperson Sekgoela Sekgoela could not be immediately reached for comment.

- Sapa