The IBA has a new target in its sights — satellite TV — and it’s heading for a battle with those who believe it has no business there. Dirk de Vos reports
EARLY this year, the Independent Broadcasting Authority attempted to amend the Act by which it is governed by inserting the words “space stations”, thereby including satellite television within its regulatory domain. The amendment hit a storm of protest in an industry only too aware of the delays caused by the IBA’s interminable hearings.
In the event, the amendment was dropped. A concession on the part of the IBA? Not at all. As Glen Marques, the IBA chief legal adviser, puts it: “We always believed that we had the power to regulate satellite broadcasting. We never took the position that by allowing the amendment to fall away that it abrogated our right to regulate … The amendment would just have given clarification.”
Regulatory bodies around the world such as the IBA have fought mostly losing battles to regulate all broadcasting within their jurisdictions. Rapid technological change, fast-changing media markets, convergence and interactivity find regulators caught flat- footed. Often regulations are introduced only once the proverbial horse has long bolted. British regulators, for example, have attempted on numerous occasions to limit the dominance of Rupert Murdoch’s media empire. But he seems to march along much as before, doing what he does best, dominating the markets in which he operates.
So it is in South Africa. Marques freely admits that the IBA had “not thought through what its position should be” when the satellite question arrived. When unsure, the IBA returns to what it considers its mandate — to regulate in the public interest. Unfortunately, what constitutes public interest in broadcasting is much in dispute.
The IBA’s powers, set out in the IBA Act, relate to “the administration, management, planning and use of the broadcasting services frequency bands (BSFB)”. Satellite signals fall outside the traditional broadcasting frequency bands. To some, this suggested the IBA would not be able to license or even regulate satellite TV. It was certainly the position taken by Multichoice which, this year, split from M-Net and Orbicom and steamed ahead with the launch of its bouquet of satellite channels.
Nevertheless, the IBA has asserted itself because it would put into question the very existence of the IBA if a whole whack of TV viewing in the country were done outside its jurisdiction. In particular, it is going to impact on the shape of terrestrial TV.
It is with this in mind that the IBA has issued an “upfront position paper” and plans a set of hearings on satellite TV early next year. It has also issued interim application forms for prospective satellite broadcasters which, if filled in, will allow them to go ahead when they are ready.
Marques says if necessary the IBA will back up its power to regulate by suggesting that further legislation be introduced. Examples of such laws could include those which have the effect of limiting South African advertisers from advertising on foreign satellite channels without an IBA licence. Other ideas include limiting foreign satellite operators from getting their subscription fees out of the
Adspend directed at satellite TV will mean less for commercial terrestrial TV, an enterprise that the IBA would dearly like to see succeed. The problem is all the more acute if one takes into consideration that South Africa will get commercial TV the wrong way around.
In Europe, a relatively established terrestrial TV sector was in place when satellite TV hit the viewing market. In South Africa, private terrestrial TV will only be launched — if the IBA has its way — in 1998, and it will almost certainly be laden with local content and public service obligations. Adspend would have already been happily allocated to satellite TV. It will take a brave heart to set up a terrestrial TV
Kobus Scholtz, Multichoice group managing director, believes that although the IBA may have a role in regulating terrestrial TV, satellite TV does not need the same sort of regulation. “Because the BSFB is a limited resource, the IBA has a place in ensuring that it is used to promote a diversity of broadcasting for the benefit of all,” he says. “The satellite frequencies, on the other hand, are practically unlimited and there is no reason for a body like the IBA to regulate them at all.”
The reference to “satellites” in the amendment to the Act was dropped, he says, simply because it would make “bad law”, and the parliamentary committee declines to make laws that are unenforceable.
The IBA, adamant in the correctness of its approach, has consulted senior legal counsel, which has offered this opinion: the transmission of a signal from space constitutes broadcasting and therefore can only be done with a licence issued by the IBA, but the IBA cannot issue a licence for broadcasters transmitting their signal outside the BSFB. Therefore, the definition of BSFB should be extended to include the frequencies used by satellite TV.
Marques says the IBA has discussed extending its authority over this part of the frequency spectrum with the Postmaster General who has agreed to it in principle.
Like litigants unsure of their chances, Multichoice and other prospective staellite broadcasters, on the one hand, and the IBA, on the other, have been in constant communication, with submissions flowing in as to how the industry should be regulated.
Scholtz does not see how the IBA can issue licences and, therefore, why an interim licensing form should be filled in. In any event, he claims Multichoice is merely acting as a service provider, transmitting prepackaged channels to its subscribers.
He speaks like a TV evangelist, however, when he talks about the digital technology being developed and manufactured locally. He is adamant that if the Murdoch juggernaut does arrive, it should meet a strong local industry with cutting edge technology able to compete.