Johannesburg - The North Gauteng High Court has brought a halt to free-to-air broadcaster e.tv’s attempt to get conditional access and encryption included with the government-subsidised five million set-top boxes that will be distributed by government to poor TV-owning households.
The judgment signals the end of the battle over conditional access and encryption that has raged in the broadcasting sector since 2012.
It has also given government the go-ahead to begin the introduction of Digital Terrestrial Television (DTT) migration after years of delays.
DTT migration is the period in which South African households convert their television signal from analogue to digital using a decoder called a set-top box and an aerial.
E.tv had taken Communications Minister Faith Muthambi to court to get her amendments to the Broadcast Digital Migration Policy reviewed.
Muthambi gazetted the amendments in March, after the previous communications minister, Yunus Carrim, had gazetted his own amendments in December 2013.
The channel was contesting Muthambi’s decision to remove conditional access from the policy and insist on a simple set-top box control.
The broadcaster’s chief operating officer, Mark Rosin, said: “E.tv is disappointed with the court judgment and is considering its options, but remains committed to the roll-out of DTT and other digital platforms.”
There are three key technologies: a simple set-top box control, conditional access and encryption.
Simple set-top box control, as called for in the current Cabinet position announced by Muthambi, is aimed at protecting the government-subsidised set-top boxes from being sold overseas.
Conditional access, which is key for pay-TV broadcasters, allows broadcasters to control who has access to their broadcasts and, because of this, requires encryption of the signal. Encryption is used to protect broadcasted content from being pirated. It does this by scrambling the signal so that it is protected on the journey to the TV set.
The set-top box unscrambles the signal so the viewer can watch the broadcast.
Encryption and conditional access are two different technologies that can be offered in the same technology solution.
Broadcasting service providers may decide to have either one of these technologies, and the broadcaster can opt in, depending on its needs.
Muthambi welcomed the court ruling.
“The ruling ... will now allow the digital migration process to progress and be concluded as soon as possible so that the benefits can be realised,” said the minister’s statement.
Vasili Vass, e.tv’s group head of corporate affairs, said the company was studying the judgment.
Jackie Rakitla, MultiChoice’s general manager of corporate affairs, welcomed the court’s ruling on the digital-migration policy.
“We can now start the journey of migrating from analogue to digital with all the benefits digital migration will bring,” said Rakitla.
E.tv was ordered to pay the legal costs of the minister, the SABC, the Electronic Media Network and the National Association of Manufacturers in Electronic Components.
In the judgment, Judge WRC Prinsloo ruled that Muthambi was well within her powers to make the changes to the DTT policy and that her actions were “reasonable and rational”, “procedurally fair” and “lawful”.
“E.tv has had a full bite at the cherry,” wrote Prinsloo. “It should not be seen to complain about a lack of consultation. What e.tv fails to explain, or adequately explain, is why it needs to encrypt its signals for free-to-air DTT purposes. It is the only free-to-air broadcaster that supports the idea.”
Prinsloo ruled that encryption was “not necessary” for free-to-air broadcasting purposes and had more negative features than positive ones.
“Some of these negative features directly impact on the interests of the impoverished five million, who are soon to be subsidised free-to-air viewers,” wrote the judge. “This issue does not appear too high on the priority list of e.tv.
“E.tv now appears to insist on the government funding the encryption facility for the sake of e.tv’s own business plans and financial wellbeing.”
In its affidavit, MultiChoice argued that the lack of conditional access and encryption in the set-top box would not prevent free-to-air broadcasters from securing high-definition content.
“The majority of free-to-air broadcasters worldwide broadcast their signals unencrypted, and obtain and broadcast high-definition content,” reads MultiChoice’s affidavit.
MultiChoice accused e.tv of attempting to “usurp government policy for its own commercial advantage”, and argued it should roll out its own set-top boxes.
In its affidavit, the SABC argued that the costs of including conditional access and encryption in the set-top box should rule it out as an option.
The SABC argued that there would be an immediate once-off cost of $2 (R24.50) per set-top box to equip each one with encryption capability, and said this would increase the cost of subsidising 5 million households.
The SABC also argued that the broadcasters would have to pay in the region of R562 million every year for the encryption-software royalties.