GIBA drags Communications Ministry, KNet to court over DTT operations

The Ghana Independent Broadcasters Association (GIBA) has, on behalf of its members, taken the Ministry of Communications and Digitalisation (MoCD) to court for mandating KNet Ghana Ltd, to unilaterally provide what they refer to as “contribution link services” and charge fees they refer to as “contribution links fees” to itself, with the added authority of disconnecting broadcasters from the National DTT Transmissions platform on account of nonpayment of the fees, without any legal basis or Parliamentary approval.

The suit, which cites KNet as a co-defanfant, also relates to the ministry's establishment and charging of arbitrary fees to be paid into a Ceentral Digital Transmission Company Ltd., as DTT channel hosting fees by broadcasters, without the approval of the fees from Parliament.

A statement signed by GIBA president Cecil Sunkwa-Mills announced the suit.

BACKGROUND:

In the year 2005, the National Communications Authority (NCA) set up a taskforce of which the Ghana Independent Broadcasters Association (GIBA) was a member; to consider Ghana’s position and the signing of the Geneva 2006 (GE06) Agreement establishing the Digital Terrestrial Television (DTT) broadcasting plan in the bands 174 – 230MHz and 470 – 862MHz.

In January 2010, the Minister of Communications inaugurated a National Digital Broadcasting Migration Technical Committee (NDBMTC) of which GIBA was also a member, to develop a roadmap document and among other objectives make policy recommendations to the Government to enable Ghana achieve a cost effective and timely migration from analogue to digital broadcasting.

In August 2010, the Report to the Government of Ghana on the migration from analogue to digital broadcasting in Ghana was approved by the Cabinet as the Digital Migration Roadmap document.

In order to protect the public interest, achieve universal access and to prevent marginalization resulting from the analogue to digital broadcasting migration programme, the decision was made for a unified transmissions network, serving as a single national DTT platform for the broadcast of all authoalsed Free-to-Air TV stations, in accordance with the roadmap, which served as a guiding framework for the migration programme in Ghana.

KNET’S DEMAND NOTICE AND THE DISCONNECTION OF BROADCASTERS’ SIGNALS FROM THE NATIONAL DTT TRANSMISSIONS PLATFORM

In 2020, GIBA received a number of distress calls from some of its TV members about letters they had received from KNet Ghana Limited demanding for payments for Contribution Link Servicesthat it purports

to have been providing to the broadcasters in contributing their programme signals from their studio facilities to the National DTT Headend at Kanda in Accra. KNet claimed that the Ministry of Communications and Digitalisation (MoCD) approved of them to be the links service provider and granted

them the mandate to demand payment of such services from broadcasters on the national DTT platform.

Beyond the issuance of the Payment Notice, KNet has decided to disconnect the TV service of some members of GIBA from being accessed by the general viewing public, and continues to pressurise other broadcasters who refused to patronise their “LINK SERVICES “, with threats of disconnection from the National DTT platform.

To avoid disruptions in the broadcast services of our members in the face of threats from KNet even though unlawful, some of our members are pushed to make some payments to the KNet company to hold their actions off in order to keep their services up and avoid a major breakdown in the delivery of their broadcast to the nation and escaping the wrath of KNet's illegal actions, while others refused to yield to their wrongful actions and disconnections by demanding for the right and lawful thing to be done.

DIGITAL REPLACEMENT AUTHORISATIONS AND CONDITIONS

The cabinet approved Analogue to Digital Migration Report, with the relevant Sections (Section 8.3.3) allowed the NCA to issue what is called the DIGITAL REPLACEMENT AUTHORISATIONS to all existing Analogue authorised terrestrial television broadcasters to among others; “Operate their Digital

Terrestrial Free-To-Air (FTA) Television Programme Channels on the National Digital Terrestrial Television (DTT) Transmission Network alongside their existing Analogue channels until the official Analogue-Switch-Off date”.

The broadcasters are required to operate their Television services in digital and analogue formats simultaneously (simulcast) with specific conditions and regulations to abide with, including the directives, requiring the broadcasters to make their digital programme contents in digital format to the National Headend at Kanda-Accra, for which the NCA provided the relevant GPS Coordinates alongside to aid the broadcasters in their installations.

Per the conditions of the Digital Replacement Authorizations, GIBA members were required to keep running their analogue transmissions with huge costs and investments alongside the Digital services during the simulcast or dual illumination period.

It was against this backdrop that the Government also offered, by way of support, to procure the installations of Studio-Transmitter-Link (STL) equipment free of charge to the existing analogue broadcasters at the time (as a crash programme), in order to obtain their programme feeds, and there was absolutely no discussion pertaining to recurrent costs or a special service requiring a “Links services provider” besides what was required from broadcasters per the conditions of their broadcast authorizations issued by the NCA.

The Contract awarded to KNet for the supply of the DTT Infrastructure does not describe a service to be provided solely by it termed as “Contribution Link Services” under the scope or minimum technical requirements.

GIBA’s position has always been that; broadcasters should be allowed by KNet to contribute their signals to the National headend at Kanda, as required by the broadcasting authorization they hold, issued by the NCA. If any member decides to go into a private contract with KNet or any other professional entity to establish or manage their links, they could do so. Provisioning of studio-to-transmitter links or the transportation of broadcasting programmes to transmissions headend has been done and still been carried out by broadcasters, even before the advent of Digital Migration and this should not be mandated to a one particular entity such as KNet.

PROVIDING INSIGHTS FOR THE LAYMAN'S UNDERSTANDING AND APPRECIATION OF GIBA'S DISAGREEMENTS, ARGUMENTS AND POSITION ON PROVISIONING OF LINKS TO THE NATIONAL DTT TRANSMISSIONS PLATFORM

Today, broadcasters in Ghana contribute digital feeds via all types of links to very dispersed locations throughout the country and even to global platforms outside Ghana such as Intelsat, Eutelsat, Turksat, Arabsat, Azerspace, Nigcomsat and several others (which are equally platforms with head-ends and transmission services), without having to be physically present at those locations, because these platforms are setup with adequate systems and well-equipped as professional broadcasting/transmission headends, whose responsibility it is to receive all third-party feeds, as specified and required of KNet to install per the contract they entered into with the Ghana Government.

On the reverse, if for instance an international network or a sporting studio were granted space on the national platform, KNet will only require such networks to deliver their content to the headend by indicating the various formats that are compatible with the National platform installations here in Ghana. KNet will not be their “links service provider”.

Why should it be different when dealing with Ghanaian networks? Is it because we lack the understanding of the technical operations and that this should become a separate business that KNet should be mandated to provide exclusively? Or it is because of the use of discretionary power as it pleases authorities. GIBA was a formidable member and part of the group that put together the network design, standards and technical requirements necessary for the building of a robust and well equipped DTT broadcast infrastructure in Ghana and it is well informed about the systems required per the contract to be installed by KNet, in order to achieve a technically standardized and sustainably hitch-free platform, for the carriage of all broadcast services in the country.

It is for very good reasons that the contract required from the supplier to build the National DTT platform with the technical capabilities to receive all forms of third-party devices and feeds, using various input/output connectors in accordance with international best practices. So therefore, what is required (even if the government decides to restrict the presence of individual broadcast entities away from the headend as their reasons for unilaterally mandating KNet), is for the supplier/operator to indicate the various signal formats acceptable and compatible with the systems so supplied per the dictates and requirements of the contract, in order for broadcasters to contribute their feeds in conformity and in accordance to specifications so provided, instead of instigating total control of the service by monopolising the establishment of contribution links as a separate service, through a mandate letter from the minister,allowing them to trade their private services without going through any public procurement processes or having prior consultation and negotiations with those that are meant to pay for such private service.

GIBA is of the view that the foregoing developments raises issues concerning the legal basis of KNet's services and charges in the absence of legislative or contractual obligations as well as the constitutionality of the management of the public infrastructure, without the involvement and mandate of the NMC as provided by the Constitution to appoint the heads of all state media institutions. KNet's authority through mandates and contracts from the MoCD without any consultations or regulation whatsoever, is troubling considering the impact of the power assumed by them to disconnect TV stations, in view of the constitutional protections of the media from interference of government.

ISSUES OF MAJOR CONCERN AND GIBA’S POSITION ON THEM:

1. The introduction of contribution links as a private service, only through which broadcasters can access the National DTT platform, performed solely and separately by KNet who also doubles as the National

DTT platform operator, contrary to requirements of authorization granted to broadcasters by the regulator-NCA, amounts to monopoly, which is against the very provisions of the NCA Act 2008 (Act775).

2. K-NET’S current empowerment by the MoCD to implement a fee regime, saddled with cost which was solely and unilaterally determined in their favour without the involvement of those that the cost was

meant for is unlawful.

3. The fee regime which is enforceable by truncation and cutting off television stations from being carried on the National DTT platform, resulting in the automatic disconnection of broadcasters programmes

from reaching the general public on the basis of a mandate letter by the Minister, allowing them to trade their private services without going through any public procurement processes or having prior consultation and negotiations with those that are meant to pay for such private services, is illegal.

4. The DTT Network is a public asset owned entirely by the Government of Ghana which set it up to meet public policy objectives including ensuring universal access to free-to-air digital television service for

all households, and the efficient use of spectrum for the benefit of other public services such as telecommunication. It was therefore not set up as a purely commercial venture and its management is only expected to be commercially oriented for the sake of sustainability. As a consequence of the switch to digital broadcasting, the DTT Network has become the only media platform for the distribution of all terrestrial Free-To-Air television broadcast signals nationwide.

The use of disconnections by a private company assuming the capacity to exercise such power against almost all

TV stations in Ghana under the direction and on the authority of the Minister through letters demonstrates the gravity of the implication of K-NET’s purported mandate for the freedom of the media, for which a regulatory framework ought to be applied as required by the constitutional principle of the rule of law, to avoid arbitrariness.

5. The Constitution provides under article 296(c) that the exercise of lawful discretionary public power by any authority such as the Minister or the National Communication Authority (NCA) must be

governed by regulations to check the arbitrary exercise of public power.

By this provision, the Minister cannot by means of a letter only and without recourse to any legislative instrument or procurement processes, lawfully authorize the charging and receiving of fees by a private entity to itself, for the provision of broadcasting services which is exclusively tied to a

nationwide public facility on which all terrestrial Free-To-Air television broadcasts in the country depend.

6. GIBA is of the view that the delegation of power by the Minister in favour of a private profit-oriented entity to charge an unspecified amount from an industry of which that private entity is itself an industry player/competitor for the use of a nationwide public facility on which all terrestrial television broadcasts depend amounts to an illegality i.e. unlawful delegation of public power. In the absence of any valid authority to charge fees on account of the lack of Regulations, K-NET may seek to recover its

fees on the basis of contract ormquasi-contract. It is clear that no written contract was entered into between K-Net and the broadcasters it seeks to recover charges from.

7. To the extent that the Ministry of Communications and Digitalization could authorise a private entity, profiting from revenue to itself as the mandatory provider of Studio-To-Transmitter Link services for

the State broadcasting infrastructure, without satisfying any public procurement guidelines or processes, amounts to monopoly.

8. GIBA believes this act of illegality begs the following questions:

i. Which Law, Terms and Conditions or by what authority is KNet acting to disconnect duly authorized TV channels on the national DTT platform from being accessed by the public, as a consequence of non-payment of any kind of bill levied to the broadcaster?

ii. Which contract or agreement are they relying upon to carry out such links services, to the extent that they could link payment to them as private commercial entities, to the operations of the National DTT platform, with the authority to take off an essential and critical service such as broadcasting from being accessed by the public?

iii. What does it amount to when a government minister is purported to have authorised the deactivation or disconnection of a duly authorized TV broadcaster from broadcasting to the general public?

iv. Should KNet unilaterally determine cost of any services on the national DTT platform or should it be by negotiations, considerations and consent of those that will pay for such services or at best, the responsibility of Parliament to determine fees and charges in consultation with the sector MDAs and all stakeholders?

v. How is it that the provision of STL service which had been part of the core activities of broadcasters since the liberalization of the airwaves long before the world's decision to migrate from analogue to digital broadcasting, now a monopoly service that can only be undertaken by KNet and not by the broadcaster as it was the case? A service that the broadcasters are willing to provide themselves as it is done all over the world but were refused by KNet whenever such demands were made. GIBA is of the view that if the broadcaster must bear the cost of STL between its facility and the national DTT Headend, then the broadcaster has a choice and the right to determine how it delivers its content/channel/signal to the Headend, uninterrupted.