The High Court, Accra, has quashed the decision of the National Communications Authority (NCA) to introduce conditional access for free-to-air (FTA) television.
That followed an application filed by the Ghana Independent Broadcasters’ Association (GIBA), which sought to quash NCA’s decision on grounds that the introduction of the conditional access system will block the content of Free-to-Air digital television.
In a ruling, the General Jurisdiction Division of the High Court, presided over by Justice Eric Baah, a Court of Appeal judge sitting as an additional High Court judge, quashed the NCA’s decision.
“The controlled access system had a real likelihood of affecting broadcast viewership, and will therefore affect the expected income and business plans of members of GIBA,” the Court declared in a response to the NCA’s position that GIBA had no capacity to initiate the action.
GIBA complained about the new standards on Digital Terrestrial Television (DTT) and Direct-To-Home (DTH) published on the website of the NCA in 2019.
According to GIBA, the document published by the NCA had a new chapter, numbered 13, which contained Conditional Access and Middleware Applications and additional control features as minimum mandatory requirements, contradicting the original standards (document (GS1099: 2019) published by the Ghana Standards Authority (GSA), which is the statutory body mandated to do so.
The association contended that the standards amounted to attempts to implement dramatic changes in the television broadcast sector with the introduction of systems of control known as Conditional Access System (CAS).
Whereas the GSA standard made CAS non-mandatory for FTA television (TV) receivers, GIBA said the revision to the ‘legal’ standard by the Ministry of Communications made CAS a mandatory requirement for the reception of all TV programmes carried on the nation’s only FTA digital broadcasting facility.
That requirement means that one needs to acquire a special decoder, with proprietary software, before watching any FTA TV programme in the country.
GIBA is of the view that the GSA standard must be adopted and used to regulate the operations of players in the broadcast space to ensure fairness to all.
It is based on these positions that the GBA filed the application at the High Court, arguing that the Free-to-Air broadcast services its members provide were relied on by nearly all Ghanaian households.
GIBA contended that the conditional access system which the NCA sought to implement would affect its viewers or customers and the business plans of its members.
The NCA on the other hand argued that the conditional access would make it more efficient for the government to collect TV licence fees after the legal framework had been put in place.
The NCA further contended that the conditional access system merely operated to encrypt television content using the Set Top Boxes (STBs) or decoders of owners of television sets, requiring that they to pay their licence fees which would be annually.
It said the decision GIBA sought to quash was promulgated under NCAs mandate enshrined in NCA Act, 2008, Act 769 and Electronic Communications Act, 2008 Act 775.
The NCA, therefore, urged the court to dismiss the application because, among others, the GBA lacked capacity to pray the court to quash the decision for lack of merit.
However, the court disagreed with the NCA and quashed the NCAs decision.
It was the considered view of the court that GIBA had the capacity to approach the court for a review of the decision because the policy had the potential to affect viewers or businesses who were members of the association.
“The controlled access system which NCA has made a requirement for imports of television or electronic sets preparatory to the imposition of an electronic tax in the form of television licence fees, in the absence of any substantive or subsidiary legislation to that effect amounts to jurisdictional error by excess of jurisdiction.
The application is to that extent granted.
“That provision,which is illegal, is brought up in this court and is hereby quashed,” the court held.