The Ghana Independent Broadcasters Association (GIBA), in a definitive attempt to uphold transparency and accountability, has filed for a mandatory injunction at the High Court against the Ministry of Communications and Digitalisation and KNet Ghana Limited.
The move is against their unlawful fee demands as TV Channel fees and engagement in the collection of illegal fees for their so-called Contribution Link Services.
This legal action underscores a commitment to protecting public interests and ensuring regulatory compliance.
As you may recall in August 2023, GIBA on behalf of its members filed a suit at the High Court against the Ministry of Communications and Digitalisation (MoCD) and KNet Ghana Limited to the effect that;
- The MoCD had unilaterally mandated KNet Ghana Ltd to exclusively provide what they refer to as “Contribution link services” and charge arbitrary 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 MoCD established and charges arbitrary fees to be paid into a CENTRAL DIGITAL TRANSMISSION COMPANY LTD as DTT channel hosting fees by broadcasters, without the approval of the fees from Parliament.
This case at the High Court therefore arises from growing concerns that these unapproved fees imposed on broadcasters have bypassed proper channels of review and approval, potentially violating statutory requirements and regulatory standards.
That in spite of the lack of legal and contractual basis for the claims, KNet, with the mandate from the now former Minister for Communications and Digitalization, continues to block media outlets on the National DTT Broadcasting platform for being accessed by the viewing public until they have paid what it has arbitrarily decided to charge as a fee and this portends a great danger for members of the broadcast media who are unable to pay the unlawful fee or have not paid on a matter of principle.
GIBA is seeking redress from the court as it believes that, the demands and claims for arbitrary fees imposed on authorized broadcasting services by the Ministry of Communications and Digitalization for TV Channel fees and those charged by KNet Ghana Ltd, backed by the Minister of Communications and Digitalization, lack any legal foundation.
It believes that KNet’s outrageous actions to unlawfully shut down nationwide broadcasting entities for their own narrow interests, by exploiting their control over the State Broadcasting Infrastructure, are highly detrimental to the rights of the broadcasting press media as a whole.
These actions represent a dangerous development for electronic media services operating on the National DTT platform and constitute an affront to the freedom of the media as enshrined in the 1992 Constitution.
By seeking this injunction, GIBA aims to highlight and address practices that could undermine trust, fairness, and equity in the broadcast media sector.
The President of GIBA stresses the point that “the media’s role as watchdogs of society obligates us to bring attention to issues that could harm stakeholders and the public”. He further noted that “this case is about more than fees; it is about restoring accountability and ensuring that every institution adheres to the rule of law.”
The key concerns raised include the lack of consultation and authorization, where evidence that exist suggests that the fees in question were implemented without requisite approval from regulatory bodies and more importantly, Parliament, noting also the consequential impact on consumers of broadcast services in Ghana in relation to fairness and affordability.
In addition, the lack of clarity surrounding these charges undermines public trust, as they violate the principles of informed consent.
The motion filed speaks to the fact that currently the National Digital Terrestrial Television (DTT) Platform, being a critical national asset and the only gateway to nationwide broadcast communication for the Free-To-Air DTT operations in the country, it would be wrong for the Minister in charge of the sector to use letters to establish fees as that would lead to indirect control of the media by the Government which may set exorbitant fees leading to the folding up or blocking of many media outlets in the country.
GIBA’s legal initiative is also aimed to compel immediate compliance with established regulations in order to safeguard the broadcast sector and the Ghanaian public from further harm.
The mandatory injunction filed at the High Court is therefore necessary to;
- Stop the collection of any such unlawful fees where no contract exists between parties;
- To restore unto the national DTT platform, all media broadcast companies that have been disconnected and blocked from the platform on the basis of not paying the supposed arbitrary contribution link fee to KNet Ltd or have refused to pay as a matter of principle and;
- To prevent KNet Ghana Limited from blocking any broadcaster on the national DTT platform from being accessed by the general public on account of non-payment of any non contractual or unlawful fees until the final determination of the case.
This action also serves as a reminder that both public and private institutions are equally accountable under the law.
Through this action, GIBA reaffirms its commitment to championing justice, promoting transparency, and protecting the interests of broadcasters in particular, all citizens and the general public as a whole.
Background
In 2006, the Government of Ghana signed the Geneva 2006 (GE 06) Agreement of the International Telecommunication Union (ITU) (“the GE 06 Agreement”).
The GE 06 Agreement established the Digital Terrestrial Broadcasting Bands 174-230 MHz and 470-862 MHZ at the Regional Telecommunications Conference.
The essence of the agreement was to ensure that signatory countries, including Ghana, change from the old way of transmitting television broadcast signals known as analogue to a new digital technology known as Digital Terrestrial Television (DTT) by June 17, 2015. The transition from analogue to digital broadcasting is often called “Digital Migration”.
That as part of the Digital Migration process, the Government sponsored and built what is now referred to as the National DTT Transmissions platform which is designed to receive, host and transmit all television content from all authorized free-to-air (FTA) broadcasters including members of the GIBA (The Plaintiff/Applicant).
That per the migration process all broadcasters on the DTT Transmissions platform, broadcasters who hitherto had applied for and obtained specific spectrum from the National Communications Authority (NCA) in accordance with their media rights guaranteed under the 1992 Constitution, and some of which had operated over two decades (with their own transmissions installations across the country) were issued with newly paid for digital channel authorizations as replacement for their analogue service authorizations called “Digital Replacement Authorizations” by the National Communications Authority.
This was in compliance with the 2010 Cabinet approved Analogue to Digital Broadcasting Migration policy and program of the country, requiring all analogue television broadcasting stations to relinquish their authorized frequencies back to the National Communications Authority, as harvested spectrum for reallocation to other providers of telecommunication services in the country, for all of them including newly authorized FTA broadcasters to be hosted on the single National Free-To-Air DTT Transmissions platform.
That the effect of being hosted on the DTT Transmissions platform, pursuant to the policy, is that one had no more controls and use of their previously acquired broadcasting spectrum which was assigned to them by the NCA for their analogue operations and so any draconian rules introduced, whether under law or otherwise that seeks to adversely impact broadcasters would be a direct attack on their media freedoms as it is the case in the present matter.
That upon the completion of the DTT Transmissions platform, members of the Plaintiff/Applicant were hosted on same in line with the digital migration policy and it came to the attention of the members that KNet Ghana Ltd (the 2nd Defendant/Respondent in this case) was the entity that was managing the said platform.
That by the nature of their authorizations from the NCA, Plaintiff/Applicant’s members were required to digitally transport/link their programs to the head-end of the national platform located at Kanda and indeed all the coordinates were given to the members by the regulator, NCA, to ensure such transmission.
That all the Digital TV broadcasting authorizations issued by the NCA and indeed the official publication of the regulator titled “KEY CONDITIONS TO NOTE IN YOUR TV AUTHORISATION” also contained this fact as directives and instructions to the DTT operating stations/authorization holders, to make their programmes available to the DTT headend, in the prescribed digital format, just as directed in the authorizations that all broadcasters hold, which included the additions of the GPS Coordinates for the Kanda headend location, in aid of their installations.
That, in the year 2015 into 2016, the Ministry of Communications negotiated and concluded arrangements with existing analogue broadcasters to obtain their program contents for the testing of the newly-built Digital Terrestrial Television (DTT) platform at the time as a crashed program, and offered to install microwave link systems free of charge to facilitate the carriage of the contents, in order for the platform to be switched on.
These facts are attested to even by KNet (the Defendants), in their letter to GIBA dated 29th October, 2020, confirming the installation of links paid for by the government to facilitate the crash program.
That the 2nd Defendant, the entity that was contracted to build the platform, sometime in the year 2020 served invoices on all TV broadcast members of the Plaintiff/Applicant, claiming fees it refers to as Contribution Link Fees. GIBA states in their motion that the contribution link as a recurring service was strangely crafted and created by the 2nd Defendant, outside of the scope of their original contract with the Ministry of Communications and Digitalization without the knowledge of the Plaintiff/Applicant and its members.
The newly purported service and the associated fees which were arbitrarily charged in United States Dollars, were unilaterally decided by the 2nd Defendant, with the claim that they were authorized by the Minister of Communications and Digitalization, acting as the sector minister for the Ministry of Communications and Digitalization (the 1st Defendant/Respondent in this case), to start the collection of the payments from broadcasters commencing from 1st May, 2020.
That members of the Plaintiff/Applicant have refused to pay the 2nd Defendant’s invoices, insisting that there is no service known as “contribution link service” that warrants monthly recurring payments.
And that broadcasters have been authorized by the NCA to send their feeds to the DTT headend by themselves, without the need for intermediaries like the 2nd Defendant.
Moreover, there are numerous NCA-approved services and technologies available for broadcasters to use in sending their digitally formatted program links to the national platform.
Members argue that it should be their prerogative to enter into contracts with the 2nd Defendant if their services are required by any broadcaster who wants them to do so on their behalf, rather than being subjected to arbitrary billing and claims for a service for which they have not contracted.
The members stated that if Knet Ltd (the 2nd Defendant) is asserting ownership over the government’s link systems, as suggested in paragraph 2 of their letter dated August 23, 2019, or if they are attempting to commercially exploit the microwave links that the Ministry willingly paid for and installed for the analogue broadcast stations in order to obtain their program content for the initial testing of the newly built National DTT platform at the time, then broadcasters who are desirous to provide their contribution links to the DTT headend by themselves as instructed by the NCA, should be allowed to do so as they are able to do that through many other technologically approved methods of the NCA, just as they have regularly and successfully been providing for the carriage of digital broadcast signals from remote locations such as the Parliament house, local and global conference centers and even from international sporting events across the world, which they broadcast throughout the nation for the viewing pleasure of all consumers without any involvement of KNet (the 2nd Defendant).
That KNet (the 2nd Defendant) on the basis of the vague and unlawful mandate granted to them by the Ministry of Communications and Digitalization (the 1st Defendant) went ahead to disconnect broadcast stations on the National DTT platform that refused to comply with their illegal demands.
They executed this disconnection by severing the contribution links equipment that the government negotiated and freely installed for the analogue broadcasters to acquire their programs to kick-start the operations of the national DTT infrastructure.
GIBA states that these links equipment are not owned or financed by KNet (the 2nd Defendant), yet they were circuitously claiming ownership of, as indicated in their letter dated August 23, 2019.
That despite that the government-installed link equipment were functioning properly and without any quality-of-service issues, the 2nd Defendant unilaterally disabled these links, selectively preventing broadcasters from connecting their program content to viewers nationwide on the national DTT platform, solely because those stations refused to acquiesce to their demands.
According to KNet’s (the 2nd Defendant’s) letter to the Ministry of Communications and Digitalization (1st Defendant) dated 24th November, 2022, and their letters dated 9th December, 2022, addressed to various stakeholders, they explicitly stated that the service disconnections were not due to any quality-of-service issues. In their own words, they indicated that: “these service stops are not due to any network failure issues,” and that the disconnections were “not due to quality-of-service issues but rather because of non-payment of fees and non-compliance with the Ministry’s directives regarding same.”
Thus, the reasons given for disconnecting the Plaintiff/Applicant member stations from the National DTT platform were solely related to fees for a service that the broadcasters had not contracted KNet (the 2nd Defendant) to provide, as well as non-compliance with the directives of the Ministry of Communications and Digitalization (the 1st Defendant), which were instituted without legal foundation.
GIBA states that KNet (the 2nd Defendant), emboldened by their control over the national DTT infrastructure as platform managers and misusing the discretionary power granted by the Ministry of Communications and Digitalization (1st Defendant), acted with impunity to arbitrarily shut down some broadcasting services sitting on the national platform across Ghana.
And that out of sheer show of power for holding total technical controls over the national DTT infrastructure, KNet (the 2nd Defendant) went ahead and disconnected stations that resisted their unlawful demands, resulting in a total shutdown of those legitimately established broadcasting services on the National DTT Network platform from being terrestrially accessed nationwide by viewers.
GIBA says the obvious fact that KNet (2nd Defendant) has the unlimited authority and backing of the Ministry of Communications and Digitalization (1st Defendant) and the Minister, to do unto any broadcaster sitting on the national broadcasting platform as they so wished regarding contribution links even unlawfully, they (the 2nd Defendant) went ahead with their disconnections of broadcast services and would not heed any advice regarding same, except to receive payment of their bills or to cut-off broadcasters who refuse to accept their services.
Out of fear and imminent losses to their businesses, some members of GIBA (the Plaintiff/Applicant) went ahead and made payment to them (the 2nd Defendant) to escape their wrath, whilst those who disagreed with their claims and patronage, by refusing to pay them, had their National DTT platform channels blocked from being accessed nationwide by the general viewing public.
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