The SABC and M-Net agree – the IBAis incompetent and has no jurisdiction to change the status quo. Peta Thornycroft reports
The SABC and pay channel M-Net may be enemies in the ring, but both agree the Independent Broadcasting Authority (IBA) is an incompetent referee.
When the IBA begins the final countdown to its proposed amendment to M-Net’s licence next week, it will take pain from opposite corners who are saying, for different reasons, it has no jurisdiction to alter the status quo. That the regulator can’t regulate when it comes to the thorny matter of M-Net and its ill-gotten gains.
M-Net wants its licence to remain the same as it was. And it certainly doesn’t want its origins, mired as they are in the corrupt political patronage of 13 years ago, to be the point of any discussion or debate in the new South Africa.
The SABC says the IBA can not change the licence because it is only allowed to do so to ensure “fair competition” between licencees. Since M-Net is the only private broadcaster at this stage, SABC’s legal opinion is there can be no “fair competition”.
The SABC needs time. Time for a new and perhaps more sympathetic council to be in place at the IBA. If that doesn’t work in the short term, (and the three disgraced councillors have to vacate their positions by September 1) then it is hoping for deliverance via new legislation from Minister of Posts Telecomunications and Broadcasting, Jay Naidoo.
If SABC can stave off a decision on M-Net now it may get the deliverance it seeks. On Monday, in a presentation to the IBA, Naidoo said he would amend the IBA Act because the one in place was born of both the political process and compromise at Codesa and a new broadcasting policy would need a new Act.
Observers at this briefing believe implicitly in Naidoo’s remarks were criticism of the IBA’s extraordinary decision not to mess with M-Net’s licence apart from tinkering with its hourly advertising ratio and imposing a nominal licence fee of between R1-million to R20- million a year. In return the IBA has said the pay station can continue using scarce public frequencies to deliver unencoded programmes for two hours a day, and more importantly, to retain its second channel which critics say was born through the back door of the transition to democracy.
The Independent Producers’ Organisation (IPO) says M-Net, a private broadcaster, should be forced to sell off its second channel because the Act proclaims: one station, one licence.
The IBA Act rules that existing broadcasters could continue as they were in March 1994 for eight years in the case of television.
M-Net’s second sports/community channel did not exist then. Industry analysts are unsure what will come out of next week’s hearings, and whether the IBA will respond to written submissions objecting to its decision from the IPO and the SABC.
There is the possibility of either M-Net or the SABC, or both, taking the IBA to court. If that happens both could get the time they want, M-Net to increase its subscription base and technology and SABC to hope for legislation to cut the pay station’s wings. The IBA would be hard pressed in its present poverty to find the money to defend its interim decision.
If either or both sides resort to court action the IBA could find itself involved in the arduous position of regulating a new private free-to-air television channel before it makes its final decision on M- Net’s licence.
If the IBA decides to stick with its proposed amendments, new legislation, promised by Naidoo by mid-1998 could force massive changes to M-Net’s present operations.
Some analysts believe the IBA’s interim decision on M-Net’s licence is inexplicable, and that the regulator is weak and scared of any challenge from a rich, private sector player, like the pay station. Not all at the IBA are happy with the decision by four of the seven councillors who voted on the amendments to M-Net’s licence.
But many insiders say the SABC provided a feeble case to the IBA without relevant data to back up its demands that the pay station should lose its second channel and open time. While the SABC denies it is trying to buy time by claiming the IBA has no authority to amend the licence, M-Net had not responded to questions about its objections at the time of going to press.