The Ghana Independent Broadcasters Association (GIBA) has succeeded in preventing the National Communications Authority (NCA) from using a conditional access system (CAS) as a mechanism for collecting TV license fees from Ghanaians.
As part of the digital terrestrial television (DTT) migration to completely digitalize television viewing in the country, the government, through the NCA had sought to insert a conditional access mechanism in all television and set-top boxes (decoders) being imported into the country to ensure that people who do not pay TV license fees cannot even view the content on free-to-air channels.
The TV license fees was mainly (70%) to fund the operations of the public broadcaster, Ghana Broadcasting Corporation (GBC), while the remaining 30% is left for private TV stations and other stakeholders to share.
GIBA had from day one protested the move and provided some alternatives, insisting that the CAS short-changes a large percentage of their members who broadcast free-to-air and make their money, not from TV license fees, but from adverts.
In a statement of claim to the courts, GIBA said “The NCA wanted to put in a conditional access system to replace the revenue provided by the TV license law. But to do this they really needed to replace the current policy and law. GIBA presented alternatives, including using a percentage of the current Communications Services Tax. They didn’t accept our proposals.”
“The TV license law works on a levy on equipment, the TV itself. It doesn’t interfere with access to and distribution of content. There is no legal basis for a conditional access decision that would block content from reaching people. We went to the Supreme Court on this constitutional argument as it would deprive people of the right to access content and this right is enshrined in the country’s constitution.”
After looking at thoroughly at the statement of claim, the High Court delivered a ruling in favour of the GIBA and quashed the NCA’s decision to use conditional access to block television content to viewers who do not pay TV license fees.
The Court held that, the Conditional (Controlled) Access System which the NCA has made a requirement, for the importation of television sets and set-top-boxes (decoders), to enable it to impose and collect an electronic tax in the form of TV License Fees, in the absence of any substantive or subsidiary legislation to that effect, amounts to Jurisdictional Error by Excess of Jurisdiction.
It ruled therefore that the provision made for the inclusion of Conditional Access System for Free-to-Air TV receivers was “illegal and therefore quashed”.
“One other key takeaway from the judgement is the emphasis on the continuous need for open and honest engagement with stakeholders to foster partnerships in formulating policies, not just for the media industry but in all other sectors, especially when policies that affect them are being developed.”
Arm Twisting tactics
Speaking of open and honest stakeholder engagement, that recommendation by the courts is critical because in the march towards the attempted imposition of the conditional access system, the Communications Ministry and NCA applied a lot of arm-twisting tactics, including allegedly preventing some stakeholders from attending meetings but listing their names in minutes to suggest they attended the meetings and approved of decisions.
Again, ahead of constituting a proper all-inclusive board of directors, which will then appoint a CEO to manage the PPP (public-private partnership) platform for the purpose, the Communications Ministry unilaterally constituted the company, and the President appointed the CEO without consultation with the stakeholders.
According to GIBA, the digital transition is a work in progress. It was agreed that a PPP would be set up and that a table of fees – depending on the number of regions reached – would be agreed. Rates would be lower for remote sites and higher for those reaching more populous sites: “We’ve never got the rates from NCA and broadcasters were put on the platform on a trial basis for 4-5 years. It was supposed to go to the National Media Commission to determine directors and staff, to ensure fairness, neutrality and efficiency.”
However, the company was set up and the President made the appointments: “This is not acceptable. There are always problems when politicians appoint someone in the media.” Rates were proposed to some broadcasters at a meeting which GIBA was not invited to: “GIBA wants to be seated at the table. The broadcasters don’t all understand the dynamics, regulatory and technical.”
Meanwhile, the NCA, which often reports its court victories over regulated bodies and individuals on its website, has failed to report the outcome of the conditional access court case with GIBA.
