broadcasting

Broadcasting services are required to be licensed in terms of the Electronic Communications Act, of 2005 (the ECA).  Such services are licensed separately from electronic communications services.  The networks over which broadcasting and electronic communications services are provided are also required to be licensed in terms of an electronic communications network service licence issued under the ECA.

The Broadcasting Act, of 1999, which also regulates broadcasting activities, distinguishes between public, commercial and community broadcasting services.  These broad categories of broadcasting services are divided into the following sub-categories:

• free-to-air broadcasting services
• terrestrial subscription broadcasting services
• satellite subscription broadcasting services
• cable subscription broadcasting services and
• any other class of licence prescribed by the Independent Communications Authority of South Africa (ICASA) from time to time.

The South African government has committed to the digital migration of television broadcasting services by 2015.  Switchover of services is anticipated to commence in 2010.  ICASA has indicated that three multiplexes will be made available for the purposes of migrating existing services to digital terrestrial transmission platforms.

broadcasting services

The SABC currently holds a public free-to-air broadcasting service licence, authorising it to provide three television channels (SABC1, SABC2 and SABC3) and various sound broadcasting services including 5fm, Metro FM, Radio 2000 and SAFM among others. Electronic Media Network Ltd (M-Net) holds a private terrestrial subscription broadcasting service licence, authorising it to provide national pay television services. Midi TV (Pty) Ltd is the holder of a free-to-air broadcasting service licence, and it operates a national service known as e.tv. Trinity Broadcasting Network currently holds the only community television broadcasting service licence, in terms of which it provides a free-to-air religious service in parts of the Eastern Cape Province.
ICASA has issued approximately 90 four-year community sound broadcasting licences in nine provinces.

MIH Holdings Limited, through MultiChoice Africa, operates a subscription satellite broadcasting service, DStv, and four further subscription satellite broadcasting services were licensed by ICASA in 2008.

bowman gilfillan’s experience

Bowman Gilfillan has been advising ICASA (and its predecessor-in-law, the Independent Broadcasting Authority (the IBA)) on all areas of broadcasting law since 1997. Bowman Gilfillan advised the IBA on all aspects of the process that culminated in the award of the first private free-to-air terrestrial television licence to etv. Through our experience in acting for the IBA and ICASA, we have gained extensive knowledge and expertise in relation to all aspects of the broadcasting regulatory regime.

We have the following experience in respect of the drafting of licence conditions for broadcasting licences:

• We drafted the licence conditions for e.tv pursuant to the award of the first private free-to-air terrestrial television service licence to it in 1998. We also drafted its revised licence conditions after the amendment of its licence in December 1999 and again in February 2003.
• We advised ICASA on amendments to M-Net’s licence conditions pursuant to its application, considered by ICASA during June 2002, for the renewal of its subscription television broadcasting licence in terms of section 44 of the IBA Act.

Bowman Gilfillan has advised the IBA and ICASA in respect of a range of licensing processes including:

• The process for the licensing of community sound broadcasting services in Gauteng in 2004.
• The licensing of sound broadcasting services in secondary markets which was finalised in April 2007.

Bowman Gilfillan has advised the IBA and ICASA on a number of applications for the amendment of broadcasting licences. These projects include the following:

• the application, considered by the IBA during June 1999, by Umoya Communications (Pty) Ltd for the amendment of its private sound broadcasting service licence in respect of Radio Algoa;
• the application, considered during August 1999, by Radio Jacaranda (Pty) Ltd for the amendment of its private sound broadcasting service licence;
• the application, considered during August 1999, by Kaya FM (Pty) Ltd for the amendment of its private sound broadcasting service licence insofar as it relates to its shareholding structure;
• the application, considered during November and December 1999, by Midi TV for the amendment of e.tv’s free-to-air terrestrial commercial television licence;
• the application, considered by ICASA during August 2000, by KFM (Pty) Ltd for the amendment of the ownership and control provisions of its private sound broadcasting service licence;
• the application by P4 Radio Durban (Pty) Ltd and P4 Radio Cape Town (Pty) Ltd, considered in July 2001, for changes to their shareholding structures which would have allowed New Africa Media (Pty) Ltd to acquire control of those commercial radio stations;
• the applications, considered during January 2002, by East Coast Radio (Pty) Ltd, Jacaranda FM (Pty) Ltd and Radio Oranje (Pty) Ltd for the amendment of their shareholding structures;
• the application, considered during October 2002, by Midi TV for the amendment of its free-to-air terrestrial commercial television service licence;
• the application brought by Primedia (Pty) Ltd for the amendment of the sound broadcasting licence held by Radio 702.

Bowman Gilfillan has advised ICASA on the following applications for the renewal of broadcasting licences:

• the application by Primedia Broadcasting (Pty) Ltd for the renewal of its private sound broadcasting licence in respect of Radio 702, which application was considered during February and March 2000;
  the application by M-Net, considered by ICASA during June 2002, for the renewal of its subscription television broadcasting licence;
• the SABC’s application for the renewal of its public sound and television broadcasting licences, which came before ICASA in December 2003 and January 2004; and
• the application brought by Trinity Broadcasting Network for the renewal of its community television broadcasting licence, which was considered by ICASA in July 2006 .

Bowman Gilfillan has also represented the IBA and ICASA in High Court judicial review applications brought against them in respect of several of their decisions regarding licence applications and the imposition of licence conditions, including:

• Radio Islam’s unsuccessful attempt, in November 1997, to obtain an urgent interdict against the IBA and the Broadcasting Monitoring & Complaints Committee (BMCC);
• Voice of Soweto’s unsuccessful application, in January 1998, for an order reviewing and setting aside the IBA’s decision to refuse its application for a temporary community sound broadcasting licence;
• Radio Islam’s application, in August 1998, for an order reviewing and setting aside the IBA’s decision to refuse its application for a temporary community sound broadcasting licence, which application was settled on terms favourable to the IBA;
• Radio Islam’s application, in October 1998, for an urgent interim interdict against the IBA;
• Radio Hoogland’s application, in June 1999, for an urgent interim interdict against the IBA;
• Kingdom Radio’s unsuccessful attempt, in December 2000, to have ICASA’s decision regarding the Capital Radio licence reviewed and set aside;
• Trinity Broadcasting Network’s unsuccessful attempt, in December 2002, to have ICASA’s decision regarding the amendment of its licence conditions reviewed and set aside, as well as its subsequent appeal to the Supreme Court of Appeal;
• Radio Pretoria’s unsuccessful attempt, in January 2003, to have ICASA’s decision regarding its application for a temporary community sound broadcasting licence reviewed and set aside, as well as its subsequent appeal to the Supreme Court of Appeal;
• Good News Community Radio’s application to have ICASA’s decision to refuse its licence application reviewed and set aside and its subsequent application for leave to appeal to the Supreme Court of Appeal;
• several other review applications (including applications by Radio Kingfisher, Link FM, Campus Bay FM and Radio Pretoria) in respect of ICASA’s decisions regarding applications for community sound broadcasting licences.

In addition, Bowman Gilfillan has been involved in the following other projects for and on behalf of ICASA in the broadcasting law arena:

• the drafting of reasons for ICASA’s decisions on a wide variety of matters arising from the exercise of its regulatory powers in the broadcasting field;
• representing ICASA at hearings by the BMCC in respect of broadcasting licensees’ failure to comply with their licence conditions, including:
• the hearing, held in September 2000, in respect of the alleged failure by Midi TV to comply with its licence conditions in respect of local productions; and
• the hearing, held in October 2000, in respect of the failure by Midi TV to comply with its licence conditions relating to its control and empowerment structures;
• drafting regulations on:
• the regulation of broadcasting activities during the course of local government elections;
• advertisements and infomercials;
• processes and procedures in respect of licence applications and registrations;
• procedures to be followed by inspectors.