MultiChoice, BOCRA row deepens to fok fok
Mbongeni Mguni | Friday April 13, 2018 13:28
The last time the two parties clashed, the matter went all the way to the Court of Appeal. That time, MultiChoice won the acrimonious battle.
This time around, the Botswana Communications Regulatory Authority (BOCRA) is determined to win where its predecessor, the National Broadcasting Board failed in 2007.
High Court Judge Tshepo Motswagole is due to deliver judgement on August 3 in the matter in which BOCRA is demanding the right to regulate the tariffs MultiChoice charges in Botswana.
At the heart of the dispute is Clause 13 of the licence BOCRA granted MultiChoice Botswana allowing it to operate as a subscription service manager in Botswana. Under the clause, MultiChoice is required to secure BOCRA’s approval for tariff adjustments, a provision that rankles MultiChoice Africa, the local entity’s South African parent group.
The stakes are higher this time and both sides have been beating the war drums louder, ramping up the brinkmanship. On Tuesday, both sides said they were ready for the worst eventuality.
In papers filed ahead of Tuesday’s final arguments before Motswagole, the digital satellite TV company said the matter was one of life or death for the local subsidiary.
“MultiChoice Africa’s position is that cannot submit to BOCRA’s regulatory jurisdiction and risk other African regulators following suit.
“If it is forced to submit to regulation in Botswana, it may have to re-evaluate its relationship with MultiChoice Botswana or the provision of DStv service to subscribers in Botswana in order to preserve its commercial viability.”
Senior counsel for BOCRA, Adriaan Botha said if the regulator could not fully apply the clause, its raison d’être (reason for living) was in jeopardy.
“The fundamental part of the Act will be defeated,” Botha said.
“The purpose of this provision is to protect consumers. The legislative purpose will be defeated if we cut out that clause.
“BOCRA’s whole purpose will be defeated if this review is upheld.
“We are saying if you uphold their review, then set aside the whole licence and we will not be averse to that because the court should not be seen to be authorising an illegality.
“MultiChoice Africa maybe outside Botswana’s borders but they upload their programmes and once they come in, their effect is in Botswana where the broadcast is received.
“Those activities are therefore taking place in Botswana.”
MultiChoice Botswana’s senior counsel, Vim Trengove was equally resolute, saying an accurate reading of the law would show that MultiChoice Botswana’s activities in Botswana did not amount to broadcasting of programmes, which would require regulation of tariffs charges.
“A broadcast service in the law is a broad concept, being both broadcast and a subscription management service.
“MultiChoice Africa broadcasts, meaning it puts that signal into the cloud, but that is entirely outside the borders of Botswana.
“The subscription management service enables consumption of the signal. Enabling that consumption is not broadcasting.
“BOCRA is seeking to abuse the subscription management service licence. Even if they assumed MultiChoice Africa was broadcasting illegally in Botswana, there’s nowhere in the Act allowing BOCRA to enforce that through MultiChoice Botswana’s subscription management service licence.
“That would be seeking to justify regulation by proxy.” For his part, Justice Motswagole appeared curious about the semantics of broadcasting.
“What is a broadcasting service then? It creates problems for me. When the Act says subscription management service is a broadcasting service, then to me it seems it involves broadcasting.
“Your argument is that broadcasting ends with the signal being released to the target area. What happens to that signal is not part of broadcasting?”
According to Trengove, MultiChoice Africa broadcasts from South Africa and Europe by sending “a signal into the clouds”. MultiChoice Botswana, with its subscription management licence, enables the consumption of this signal.
But even apart from that, the senior counsel believes BOCRA has other avenues of relief in the matter.
“BOCRA has powers to amend the licence given to MultiChoice Botswana, if they are not happy with the removal of the clause. They can change the licence conditions.
“They are also saying their whole purpose in the Act would be defeated, but that assumes that their whole purpose is to regulate MultiChoice Botswana through MultiChoice Africa.”
Whatever Motswagole’s decision, the case appears set to create a precedent with other markets where MultiChoice operates closely awaiting the August 3 judgement day.