Court leaves Icasa to rule on TopTV's porn channels

TopTV may not broadcast pornography channels without the permission of the Independent Communications Authority of South Africa (Icasa), the South Gauteng High Court ruled on Monday.

The pay channel applied to Icasa in September for permission to flight three porn channels.

When it received no response after two months, it decided to go ahead without Icasa’s decision.

Icasa brought an interdict application before Judge Ndawuyake Tshabalala on Friday, hoping to delay the independent broadcaster’s launch.

After lengthy arguments delivered by both parties’ legal counsel were heard until 7pm, Tshabalala announced his intention to rule on the matter “by latest Wednesday”.

The dispute relates to Icasa’s subscription broadcasting services regulations, specifically paragraphs 3.5 and 3.6. These regulations stipulate that Icasa must authorise or refuse applications for additional channels to be added to an existing bouquet within 60 days.

By November 13 2011, TopTV had received no response from Icasa about the application, which was made on September 13 2011.

The independent broadcaster argued regulations indicate that applications are approved by default if no response if forthcoming.

“If upon the expiry of the 60-day period contemplated in 3.4, the authority has not issued a certificate the channel shall be regarded as having been authorised,” reads paragraph 3.5.

Advocate Terry Motau SC, Icasa’s legal representative in the matter, maintained the body was still dealing with the application and needed more time for it to be “properly reviewed”.

“Within the South African context, the content of this proposed channel is unprecedented.
The rights contained in the applicant’s broadcasting license are not enhanced by the missing of a deadline,” Motau argued.

TopTV’s legal counsel, advocate Paul Kennedy SC, disputed Motau’s claim saying Icasa did not “apply their mind” and are attempting to “shift the goalposts to suit themselves”.

“As per legislation, you can add channels to an existing bouquet with a new application. As such the argument is invalid. Icasa had the 60 days to look at this. We reminded them, time and time again, but nothing was done,” said Kennedy.

This is the second interdict Icasa sought against On Digital Media, TopTV’s parent company, after Icasa’s initial December 20 application was withdrawn.

Icasa’s initial challenge was withdrawn after TopTV agreed to move its broadcast date from December 20 2011 to January 20.

In the meantime, Icasa was hosting public hearings on the controversial content on Monday at its offices in Sandton, Johannesburg.

Icasa has made an urgent application to the high court to halt the move until January 31, when it would give its decision.—Additional reporting by Sapa

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