Monday, 26 January 2015

Digital migration: The what and why

Mr Kibe will represent Kenya in the Radio Regulations Board (RRB) of the International Telecommunication Union. FILE PHOTO | SALATON NJAU | NATION MEDIA GROUP 

From left: Communications Authority of Kenya chairman Ben Gituku, director frequency spectrum management Stanley Kibe, director general Francis Wangusi and Information Communication and Technology cabinet secretary Dr Fred Matiang'i. FILE | NATION MEDIA GROUP  

In Summary

  • The regulator has harmed the public interest, first by ignoring mandatory constitutional principles, then by taking a scarce national resource – radio frequencies – and handing the bulk of these frequencies to foreigners.
  • From data downloaded from the CCK website but subsequently removed – perhaps because of the Supreme Court case – the Communications Authority of Kenya has allotted the lion’s share of frequencies, 120 in total, to the wholly owned Chinese company, PANG. KBC, the public broadcaster, was allotted only 54.
  • Why did the Kenya Government depart from its explicit commitment that at least 30 pc equity in a BSD licencee must be held by locals?
“Next to sound judgment, diamonds and pearls are the rarest of things in the world,” thus declared Jean de la Bruyere, French philosopher and moralist.
If so, then perhaps Kenyans should not be surprised that even though the country is scheduled to migrate to the digital platform by June this year, the process has sputtered along and nearly stalled because of a series of bad decisions by the Communications Authority of Kenya (CAK) together with its predecessor, the Communications Commission of Kenya (CCK), and an even worse judgment by the Supreme Court of Kenya.
This article explains why and how both the decisions of the regulator and the judgment of the Supreme Court are mistaken and why they are holding back digital migration. 
The regulator has harmed the public interest, first by ignoring mandatory constitutional principles, then by taking a scarce national resource – radio frequencies – and handing the bulk of these frequencies to foreigners contrary to government policy and to best practice the world over, and then, by taking decisions in a manner that is not transparent, principled or accountable.
When these decisions were challenged in court, the Supreme Court compounded the original sin with a patchwork judgment that restrictively and narrowly read key articles in the Constitution on media freedom, misstated crucial elements of the law on copyright, broadcasting and the nature and scope of constitutional remedies.
This article and the next one on article 34 of the Constitution explain digital migration, why it matters and points out some of the pressing questions that the regulator must answer.
First the basics: Why digital migration matters. Digital migration is the process of moving Kenya’s analogue telecommunications system to a digital platform.
The basic idea is simple: Whether one uses an analogue or a digital platform the thing is that in both information – sound or pictures – is transmitted as an electric signal.
In analogue, however, information is translated into electric pulses that are continuous whilst in digital transmission, information is translated into discrete ones and zeros.
Ignoring the physics, the digital advantage lies in the fact that images and data can be compressed. This allows a station to broadcast more channels on the same bandwidth: for one frequency in analogue the consumer gets one TV service, for the same frequency in digital, the consumer gets 15 standard definition TV services.
To use a physical image: Think of a general trying to march his soldiers through the narrow gates of ancient Baghdad. In analogue, he can only move one soldier at a time through the narrow doorway.
In digital, he has discovered a revolutionary new trick that allows him to compress his soldiers which then allows him to move 15 soldiers at a time through the same narrow doorway.
Where he once moved one soldier a minute, he now moves 15 a minute. Consider how many soldiers he will get into Baghdad in an hour. Applied to broadcasting, the benefits are obvious: multiple TV stations transmitted in the same geographical area can operate on the same frequency without interference.
This means that moving from analogue frees up valuable spectrum for re-allocation to more consumers. There are many users of the radio spectrum: the military, the police, telephone companies, radio and TV, emergency services, sports (such as Safari Rally) and so forth.
The controversy in Kenya so far is mainly about broadcasting, not the other users. Your TV and radio programmes are relayed to your home through one of three possible methods of transmission: terrestrial broadcasting, satellite broadcasting and cable based broadcasting all of which can be both analogue or digital.
Most broadcasting in Kenya is terrestrial, meaning that Kenyans receive their TV and radio programmes through a network of transmission and booster towers.
Part of the reason for this is that there are many things that interfere with radio and TV broadcasts: some radio waves are absorbed in the atmosphere, others are degraded by weather conditions and more are blocked by hills and mountains and other features in the terrain.
This is part of the reason the towers are placed on hill-tops. The frequencies used for TV and radio broadcasting are, in turn, calibrated in Hertz and are in two wave bands named either as VHF (Very High Frequency – from 30 megahertz to 300 megahertz) or UHF (Ultra High Frequencies from 300 megahertz to 3 gigahertz).
The background to the digital migration now taking place is in Kenya’s international commitments. Globally, radio spectrum is shared under the International Telecommunications’ Union, a regulatory body organised into three regions under which Kenya falls in region 3, Africa and the Middle East.
In the early 2000s, countries in regions 1 and 3 decided to shift to digital migration in the VHF and UHF broadcasting band that they have been using for analogue broadcasting.
Working under the Regional Radio Communication Conference (RRC) they held two sessions first in 2004 and then in 2006 out of which came a Regional Agreement on transiting to digital terrestrial broadcasting.
Under that Agreement, the transition period would end on the 17th of June 2015. After that date analogue TV transmissions would not be allowed and would also not be protected from harmful interference.
This means that when the deadline comes on the 17th of June 2015 those who will not have made the switch-over from analogue risk the danger of interference with or from neighbours, a breach of the 2006 Agreement and ITU Radio Regulations.
That then is the international position. The case in court arises from the steps the Kenya Government has taken to implement those international obligations.
In 2006, the government formulated the National Information and Communications Technology (ICT) Policy. Shortly thereafter, in 2007, it set up a National Digital Migration Taskforce whose report was meant to be the digital transition blueprint.
According to both documents, the goal is orderly digital migration; protection of the public interest; inclusion of nationals in all digital spaces and efficient use of the Radio Spectrum.
A Digital Transition Committee (DTC) was then created with a mandate to manage the migration process; license Broadcast Signal Distributors and initiate a phased-in analogue switch-off from 1st July 2012. The facts giving rise to the digital migration case are straightforward.
Before explaining how the dispute arose, it is important to understand the impact of digital migration on broadcasting. Given the significant efficiency gains arising from moving to a digital platform, allocating individual frequencies to broadcasters was not considered reasonable: frequencies are scarce national resources, they should not be squandered through inefficient allocation.
To ensure efficiency, the government proposed to split broadcasting into two: Content Developers and Signal Distributors. The content developer would now be the broadcaster and would therefore develop or assemble content. 
That content would then be carried by a licensed Broadcast Signal Distributor to the end consumer. It is the BSD firm to which frequencies would be allotted. 
On the consumer end, anyone who still had an analogue TV would then have to buy a set-top box which would ensure that digital signal can be received on analogue sets.
Under the new arrangement the government said that broadcasters – that is content developers – would be separated from signal distributors, termed BSD licencees.
But government also recognised that other important interests were at stake. Both the policy and the Task Force Report recognised the public interest in fair frequency distribution and the sunk costs already borne by the existing broadcasters who had historically invested in the analogue infrastructure.
For this reason, government policy was to develop “broadcasting services that reflect a sense of Kenyan identity, character, cultural diversity and expression through the development of appropriate local content.” It also undertook to encourage “a broadcasting industry that is efficient, competitive and responsive to audience needs” and, to allocate “frequencies through an equitable process.”
Within that framework, efforts would be made to reduce the cost of migration by using “the existing designated transmitting analogue sites and infrastructure ... for digital transmission”.
Crucially, the Task Force also proposed that the “existing infrastructure owners” be permitted to “enter into agreements with signal distributors and future infrastructure investors regarding integration of their facilities into the signal distribution network.”  
Most important for the digital migration case, the Task Force asked that “incumbent broadcasters be allowed to form an independent company licensed to run the signal distribution services.”
In order to ensure national interest any firms licensed to be Broadcast Signal Distributors were to have at least 30 pc equity participation by locals. The public broadcaster, the Kenya Broadcasting Corporation (KBC) was to be granted a BSD licence as a matter of course.
From this moment, though, things began to go wrong: a consultative effort to enact a new media law somehow got scuttled; a digital migration pre-test went awry after disagreements over copyright between the private media houses and the public broadcaster.
And, finally, when the BSD licensing process finally got under way the CCK honoured few of the promises and commitments made in the ICT policy and the Report of the Task Force.
In spite of the promise to grant local media houses a BSD licence, the CCK decided to allocate BSD licences through public procurement. The tendering process started in February 2011.
The Royal Media Company, the Nation Media Group and the Standard Media Group then formed a consortium but this was knocked out early on a technicality, namely, that their bid bond was less than that asked for.
The result was that Chinese owned company, the Pan Africa Network Group (Kenya) Co Ltd, was licensed as a BSD carrier in October 2011.
Also licensed along with PANG but without going through procurement was the KBC owned BSD carrier, SIGNET. The losing local consortium then appealed to the Public Procurement Administrative Review Board (PPARB) and lost, again.
Reviewing matters to this point the key issues can be shortly summarised. Why did the Kenya Government depart from its explicit commitment that at least 30 pc equity in a BSD licencee must be held by locals?
Why did the government allow a company associated with PANG, StarTimes TV, to be a broadcaster, having made a commitment to split content development from carrier services? Looking at subsequent developments only raises more questions.
From data downloaded from the CCK website but subsequently removed – perhaps because of the Supreme Court case – the Communications Authority of Kenya has allotted the lion’s share of frequencies, 120 in total, to the wholly owned Chinese company, PANG. KBC, the public broadcaster, was allotted only 54.
Lancia Media was allocated 11. GoTV has 5 and ADNL, a consortium owned by the three media houses, has 21. This means that of the allocated frequencies PANG has 56.87 pc covering a total of 50 sites of the 112 sites for which frequencies have been allocated. This means that PANG has 57 pc of the frequencies and 47 pc of the sites so far covered.
As for the policy decision to promote local content, the CCK decision was bizarre. It wrote a letter requiring pay TV stations including StarTimes and Go-TV (owned by Multichoice) to carry the content of local Free to Air Television stations under the guise of what broadcasters call a “must carry” rule.  That rule and its meaning have been discussed in a companion article.
Tomorrow: Freedom of media in the courts: Is article 34 now dead?
The writer is a constitutional lawyer.

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