1. The legal issues involved in Digital Migration and lessons from Kenya.
Digital migration refers to the switch from an analog broadcasting system to a digital
broadcasting system. The International Telecommunications Union (ITU) to which
Uganda is a signatory, set June 2015 as the deadline for the transition from analog
to digital.
Digital migration will improve the quality of our TV broadcast signals. However,
although the transition is undoubtedly a move in the right direction, regulatory
issues have arisen not only in Uganda but in also in other Africa countries.
In Kenya for example, the analog signal for KTN, Citizen, NTV and its subsidiary
QTV was turned off over the weekend.
In retaliation, the TV stations have since switched off their digital signals in protest.
This follows a recent supreme court ruling in the case of Communications
Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014]
eKLR, where the court unanimously ruled on several important issues relating to
Kenya’s contentious shift from analog terrestrial broadcasting to digital terrestrial
broadcasting before the international analog switch-off date.
The digital migration case was triggered by the decision of the Communications
Commission of Kenya’s (CCK) to allocate a Broadcast Signal Distribution license to
Pan African Network Group Kenya (PANG) a company which is wholly owned by
foreigners at the expense of National Signal Networks (NSN) a joint venture of
Royal Media Services Limited, Nation Media Group and Standard Media Group all
local Kenyan Companies.
NSN appealed the decision to the Kenyan Public Procurement Appeal review Board
but lost. They made a further appeal to the High court of Kenya lost again but were
successful in the court of appeal in Kenya which ruled that the NSN had invested
heavily in the broadcast industry and thus had a legitimate expectation to be given
the BSD license.
This is what led to PANG’s subsequent appeal to the Supreme Court of Kenya
which upheld their license and authorized CCK to proceed with enforcing the
deadline. One of the major points of contention in the Supreme Court case was
whether the issuance of the license by CCK to PANG in conformity with the “must
carry” rule could be reconciled with the constitutional right to protection of

2. intellectual property as well as the provisions of the Kenya Copyright Act. The “must
carry rule” which provides that all locally licensed television stations must be
carried on a cable provider's system has caused a stir between Pay TV’s and Free to
Air stations.
The rule inadvertently allows a licensee to broadcast a Free to Air (FTA) channel
with or without the FTA’s consent. This in essence would result into copyright
infringement in the absence of specific consent although subject to the exceptions
under their copyright laws.
The Supreme Court of Kenya however held that the “must-carry” rule is not
“rebroadcasting” and therefore does not infringe on the intellectual property rights
of the local broadcasters a decision that this author respectfully disagrees with.
Free to Air channels own copyright in their broadcasts and should have the express
authority to allow their content to be aired. Although the court’s decision clearly
stated that Intellectual property is not a fundamental human right, it is still an
important right nonetheless.
In Uganda’s case, Uganda Broadcasting Corporation through Signet shall be the sole
Signal Distributor for the first 5 years of implementation of the policy. As a result, all
the current FTA channels, must utilize their platform if they are to broadcast in the
country.
It is yet to be seen, whether the Uganda Communications commission (UCC) has
been fair in the consultation processes with all stakeholders, and has properly
reviewed the existing legal framework in the communications sector.
For the ordinary Uganda, it is also yet to be seen whether the objectives of the
Digital Migration Policy for Television Broadcasting in Uganda as formulated by the
ICT Ministry in 2011 will be achieved especially in as far as cost and availability of
set top boxes.
Muhangi Kenneth
Signum Advocates