In objecting to the regulations, e.tv said in court papers earlier this month that the regulator had required it to use the services of Sentech, the state-owned signal distributor that enjoys a monopoly position.
The free-to-air broadcaster also raised concerns about a R500 000 fine that broadcasters would have to pay if they failed to comply with certain migration timelines.
Nafcoc argued that the proposed regulations would extend M-Net's monopoly in the terrestrial pay TV market. The business chamber said that M-Net should be given one channel rather than eight, while the remaining channels should be allocated to black-owned firms.
This is the second regulation that Icasa has been forced to withdraw following a legal challenge by powerful and frequently litigious operators. Last year Icasa withdrew the handset subsidy regulations following a legal challenge brought by Vodacom. But the regulator has downplayed its decision to withdraw and amend the digital migration regulations, saying this was necessary to avoid a lengthy court case.
Robert Nkuna, an Icasa councillor, said the body would amend certain sections of the regulations dealing with issues that were raised by e.tv.
"We have taken note of the issues raised by e.tv and we believe that those issues could be resolved without going to court as this might affect the digital television deadlines," said Nkuna.
The migration from analogue to digital will bring more television channels, and services such as mobile television. The government plans to switch off the analogue signal in November 2011. Broadcasters are testing the digital signal, before its planned launch in April next year.
"The best way to effect the amendment will be to issue a notice for public comment. We need to expedite the changes so that (they do) not affect the migration deadlines," Nkuna said. He added that Icasa would take into consideration other issues raised by the industry, including Nafcoc's concerns. He said more sections might be amended depending on public comments.
He said Icasa did not foresee further court action. e.tv confirmed that it had received a letter from Icasa making clear the decision to withdraw the regulations. The broadcaster reiterated that it wanted a strong, fair and properly considered regulatory framework put in place for the digital migration. Avhasei Mukoma, a lawyer and broadcasting analyst, said the withdrawal of the regulations - despite possibly being the correct decision - had the potential to further entrench the perception that the regulator did not properly apply its mind when taking critical decisions affecting its licensees.
"In order to meet the tight deadline for digital migration, Icasa has an... obligation to ensure that the framework enables the broadcasters to comply with the migration process without being entangled in litigation due to non-compliance with provisions in regulations, which are not relevant to the digital migration process," he said, adding that the R500 000 penalty was problematic and not well thought through.
Reagan Malumo
Programme Officer: Media Freedom Monitoring and Research
Media Institute of Southern Africa (MISA) Regional Secretariat
21 Johann Albrecht St
Private Bag 13386
Windhoek
Namibia
Phone: +264 61 232 975
Fax: +264 61 248 016
Mobile: +264 81 311 2626
E mail: reagan@misa.org
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