Ghana’s Supreme Court has dismissed a case filed by the Ghana Independent Broadcasters Association (GIBA) against the National Communication Authority (NCA) and the Attorney General concerning the decision by the regulator to give conditional access to its free-to-air TV space.

The seven-member panel of justices presided over by Chief Justice Anin Yeboah unanimously dismissed the case in a decision read by Justice Sule Gbadegbe.

The Bench, which also had Justices Jones Dotse, Samuel Marfu-Sau, Prof Nii Ashis Kotey and Nene Amegertchar, said the applicants did not properly invoke the original jurisdiction of the apex court.

GIBA filed the suit on 28 January 2020, arguing that the NCA's decision to introduce conditional access to free-to-air TV broadcast was aa breach of the right to free press as enshrined in the 1992 Constitution.

In its writ, GIBA sought a number of reliefs including that the Conditional Access (CA) System introduced as a mandatory requirement by the NCA by which media content of free-to-air broadcasters are blocked by the government unless certain criteria have been met, constitutes an unnecessary restraint on the establishment and operation of private media as enshrined in Article 162(3) of the 1992 Constitution.

It also sought a declaration that the blockage of media content of free-to-air broadcasters through the use of the Conditional Access System introduced by the NCA is unconstitutional as same constitutes an unreasonable and unnecessary abridgement of the freedom of the media contained in Article 21(a) and 162 (1) of the 1992 Constitution.

Another relief sought was a declaration that the blockage of media content of free-to-air broadcasters through the use of the Conditional Access System introduced by the NCA, contravenes the spirit and letter of Article 21(f) of the 1992 Constitution since same constitutes an unnecessary abridgement of the right to information guaranteed under the Constitution.

GIBA also sought an order directed at the NCA to remove from the Minimum Requirements for Reception of Digital Terrestrial and Satellite Television Services, any system in the nature of Conditional Access that encrypts or blocks the content of Free-To-Air television channels from being received.

The Ministry of Communication, through its agency, the NCA, since 2017, have been attempting to implement dramatic changes to the television broadcast sector with the introduction of systems of control (Conditional Access System – CAS) which GIBA frowned upon, due to its ability to lockdown the liberalised airwaves and send the nation back to the dark days of monopolised and controlled media.

Prior to going to court, GIBA accused the Ministry of Communication (MoC) of doctoring the standards document prepared by the Ghana Standards Authority (GSA) regarding Digital Terrestrial Television (DTT) and Direct-To-Home (DTH) Receivers, and, in the process, smuggled in conditions which make access to the country’s “only free-to-air digital broadcasting facility” conditional.

In GIBA’s view, the doctored document makes nonsense of the GSA’s recently-revised standard (GS1099: 2019) on Digital Terrestrial Television (DTT) and Direct-To-Home (DTH) Receivers, which made Conditional Access System (CAS) non-mandatory for Free-To-Air TV Receivers, a development that the association welcomed on 18 December 2019.

“In a dramatic fashion”, however, GIBA said in a statement issued on Wednesday, 8 January 2020 and signed by its President, Mr Andrew Danso-Aninkora that “the MoC, working together with Mr Andy Townend – representing Inview Technologies, assisted by Mr Oluwatoyin Subair – founder of the erstwhile Hi-TV Pay Network in Nigeria and ILC Consulting Ltd, has come out with an alarming publication which is a doctored version of the Ghana Standards Authority’s newly-gazetted and published Technical Standard of August 2019 as the Ghana Minimum Technical Specifications for Digital Terrestrial Television (DTT) & Direct-to-Home (DTH) Receivers for Free-to-Air Television Reception”.

According to GIBA, the doctored document, which was published on 30 December 2019, by the National Communication Authority (NCA) on their official website as a technical standard, “requires the broadcast industry in Ghana and all Ghanaian households to abide by its mandatory requirements for the reception of all TV programmes carried on the nation’s only free-to-air digital broadcasting facility”.

The requirements, GIBA noted, “include the acquisition of a special decoder with a proprietary software before anyone could watch any Free-to-Air television programme in Ghana”.

The special decoder, it said, “shall be controlled by Conditional Access software and Middleware applications to be provided by a foreign company called VERIMATRIX, solely selected by the MoC as their partner. By default, Verimatrix, who have also been awarded the business of broadcasting value-added services, shall perpetually provide updates to the platform because by virtue of the proprietary software introduced”, adding: “No other entity can perform updates to the platform”, a situation GIBA said “raises serious issues of unfair competition”.

GIBA said the MoC’s private partners “have also been given the mandate to trade in broadcasting services, without authorisation by the NCA as required”.

The association has urged “all well-meaning Ghanaians and leaders from the political divide to question what is going on”, charging: “Let us defend our constitutional right to FTA media platforms and safeguard our media space from sinister ownership and the negative machinations of the MoC”.

“GIBA is prepared to lead this fight to its logical conclusion”, the group warned.

Read the full GIBA statement below:

MINISTRY OF COMMUNICATIONS PUBLISHES DOCTORED STANDARDS DOCUMENT TO SNEAK IN CONDITIONAL ACCESS FOR FREE-TO-AIR TELEVISION THROUGH THE BACKDOOR

The role of the broadcasting media, particularly the television press service in Ghana’s maturing democracy cannot be overemphasised. Free-to-Air Television Broadcasting forms part of what is often known as the media for the Masses because of its capacity to reach all citizens including literates and illiterates with vivid audio-visual contents and events as they happen. It is arguably the most patronised medium of the press, with over 99% of TV households in Ghana relying exclusively on it.

Before the promulgation of the 1992 Constitution of Ghana, the broadcast airwaves were under the exclusive control of Ghana Broadcasting Corporation (GBC) and tele-guided by the government at the time.

Fortunately, the 1992 Constitution paved the way for the media to be independent and free, but this did not materialise until the ruling government at the time succumbed to pressures from civil society to liberalise the airwaves in 1994, allowing for the participation of private and plural broadcasting media in Ghana's media space to give true meaning to our practice of multiparty democracy.

The broadcast media in Ghana has been relatively free, with the establishment of private transmission stations which currently dominate the space, giving the opportunity and platform to both the affluent and less privileged to participate in national discourse and hence to nation-building.

With the advent of digitisation of the broadcast media, Ghana like all other nations commenced the process of migrating all the analogue broadcast services to digital, but this also marked the beginning of unpatriotic exploits taking advantage of the new technology to destroy the democratic gains we have made as a nation and the crucial part played by the existence of a plural and diverse media.

Since the year 2017, the Ministry of Communication (MoC) has been attempting to implement dramatic changes in the television broadcast sector with the introduction of systems of control (CONDITIONAL ACCESS SYSTEM – CAS) which the Ghana Independent Broadcasters Association (GIBA) objected to, due to its ability to lockdown the liberalised airwaves and send the nation back to the dark days of government monopolised and controlled media.

On the 18th of December 2019, the Ghana Independent Broadcasters Association (GIBA) welcomed a revised standard (GS1099: 2019) on Digital Terrestrial Television (DTT) and Direct-To-Home (DTH) Receivers by the Ghana Standards Authority (GSA), the statutory and legally authorised institution mandated for the setting of Standards in Ghana, which made Conditional Access System (CAS) non-mandatory for Free-To-Air TV Receivers. In a dramatic fashion, the MoC, working together with Mr Andy Townend - representing Inview Technologies', assisted by Mr Oluwatoyin Subair - Founder of the erstwhile Hi-TV Pay Network in Nigeria and ILC Consulting Ltd, have come out with an alarming publication which is a doctored version of the Ghana Standards Authority’s newly-gazetted and published Technical Standard of August 2019 as the Ghana Minimum Technical Specifications for Digital Terrestrial Television (DTT) & Direct-to-Home (DTH) Receivers for Free-to-Air Television Reception.

The DOCTORED document which was published on the 30th of December 2019, by the National Communications Authority (NCA) on their official website as a technical standard, requires the broadcast industry in Ghana and all Ghanaian households to abide by its mandatory requirements for the reception of all TV programmes carried on the nation’s only free-to-air digital broadcasting facility. The requirements include the acquisition of a special decoder with a proprietary software, before anyone could watch any Free-to-Air television programme in Ghana.

The special decoder shall be controlled by Conditional Access software and Middleware applications to be provided by a foreign company called VERIMATRIX, solely selected by the MoC as their partner. By default, Verimatrix who have also been awarded the business of broadcasting value-added services, shall perpetually provide updates to the platform because by virtue of the proprietary software introduced, no other entity can perform updates to the platform. This raises serious issues of unfair competition which will be addressed later in this release. They have also been given the mandate to trade in broadcasting services, without authorisation by the NCA as required.

It is worth noting that several entities have had to go through a vigorous qualification process to receive broadcast authorisation to provide some of the very broadcast services which the MoC is freely and discriminately giving out to its broadcast partners exclusively and with the full support of tax-payers funds under the pretext of them being consultants. Details of these facts can be found in the service offerings of Inview Technologies as published in the GIBA Press Release in the Daily Graphic of 28th May 2019.

Among the several businesses handed over to the software partners by the MoC, are:

•    On-screen banner advertising
•    Push Video On Demand and Portable Video Recording
•    Connected Services
•    Interactive Broadcast Services, with a Conditional Access System, Middleware Applications and Receiver

Security, exclusively handed over to VERIMATRIX.

Ironically, these broadcast services handed down to the Middleware partners as Value-Added Services (VAS), can only be achieved by running on content generated off the mainstream local broadcast services providers, such as TV3, UTV, Joy News, Crystal TV, GhOne TV, Net2 TV and every other broadcast channel, to be carried on the nations DTT platform.

This is akin to the setting up of a subscription-based television broadcast facility with state funds for the benefit of a private enterprise.

The doctored document, which was published under NCA’s cover, can be found on the NCA’s website. It has a whole new chapter numbered 13 which contains Conditional Access, Middleware Applications and other additional control features, as minimum mandatory requirements and thus contradicting the original Ghana Standards Authority document (GS1099: 2019). The doctored version of the Standards document covers all the services mandated to the so-called consultants of the MoC, which are Inview Technologies and their local partners ILC Consulting, as laid out exactly in the letter between them and the MoC, signed in July 2017, by Madam Ursula Owusu-Ekuful, the Minister of Communications, few months after taking office.

The MoC has also given the mandate to these ‘consultants’ to setup customer service centres nationwide with taxpayers’ funds. They are also mandated to select the software partners and source for the suppliers of the specific decoders. As at the time of this publication, the MoC and its partners have advanced plans with demands on the NCA to provide funds in millions of US dollars, for the purchase of Decoders and the payment for the Conditional Access System, Software and Middleware, to be applied, counter to the judicious approach of the GSA gazetted document focus on this project. 

The document, which purports to have been issued from the “National Digital TV Transmission Network”, a body unknown to industry stakeholders, is said to follow the Government of Ghana’s revision of the National Policy for the Transition of Television Services from Analogue to Digital. This purported final Policy, which major industry stakeholders have been denied the opportunity to make inputs into and which the Ministry is unable to publish, has also not been sighted by the stakeholders and is being held closely to the Minister’s chest. The last mention of the policy by the MoC was when the Deputy Minister of Communications, Mr George Andah stated on national television that the policy had not been finalised.

Previously, GIBA had pointed to some clandestine moves by the Ministry of Communications (MoC) with its foreign consultants to introduce encryption of Free-To-Air (FTA) television in Ghana by means of a conditional access system ostensibly to collect TV license fees.

GIBA believes that Ghana can achieve Digital Migration without the clampdown of the national media space. If the reason for the CA is to collect TV license fees, there are time-tested alternatives for the collections which do not require the introduction of a universal control key and content blocking device on the transmission facility of the nation and which does not require unguided spending of public funds. The cost of managing a CA-driven collection of TV license fees, far outweighs the revenue to be received thus directly contradicting the intention of collecting license fees without considering the global alternatives.

GIBA has consistently indicated that the authorisation category and business model of its Free-To-Air TV members whose revenue is based on advertising requires them to transmit without content encryption. The MoC has ignored legitimate stakeholder concerns by taking the unilateral decision to impose encryption on the industry against constitutional and statutory provisions guaranteeing media freedom and the right to information. As GIBA pointed out in previous publications, blocking access to public service free-to-air television networks such as TV3, TV Africa, Joy Prime, Adom TV, UTV, Crystal TV, etc. raises serious constitutional concerns, relating to freedom of the media and the right to information.

It is instructive to note that during the review of the Ghana Standard on digital television receivers, the MoC tried unsuccessfully to push the conditional access agenda through the GSA. The GSA considered the proposals from the MoC accepting some of them but rejected the introduction of a conditional access system encryption as the Committee deemed that as inappropriate for the Free-To-Air television industry.

It is worrying that the MoC and NCA which were well-represented on the Technical Committee of the GSA, which eventually promulgated the revised GS 1099:2019 ruling out conditional access encryption of Free-To-Air television, chose to doctor the very document they passed without the knowledge of the document author – the GSA.

BACKGROUND

In the year 2010, the NCA, as the regulator, secured the commitment of all broadcasting services in the country to work together as one entity in partnership towards the establishment of a single platform infrastructure for the broadcast of all free-to-air programs in Ghana, with the understanding that this will be a more beneficial way of managing digital broadcasting service, as it will be more economical and technically friendly for consumers in the country to patronise, without having to struggle with the reception of the various broadcast signals coming from dispersed locations of the country. It will also be a more efficient use of spectrum, which the government was interested in harvesting as spectrum dividends.

The regulator convened several meetings towards this partnership and got the full participation of all broadcasting entities, including GBC and GIBA, to commit their resources into the setup and construction of a single national platform for the country, which will be the sole entity to provide free to air broadcasting services in the nation.

This understanding and other provisions got the blessing of Ghana's cabinet, which set the project up and got the document approved as policy toward the project.

In setting regulations for the sector, the NCA, backed by various sector legislation, provided among other rules that;

1.    To ensure fair competition, an FTA network licensee, which shall carry programmes and services from other broadcasters other than its own, cannot itself be a television programme service provider unless the entity obtaining the license was created as a consortium of all the services carried on the network.

2.    The FTA DTT Network Licensee shall be required to provide fair, reasonable and non-discriminatory access for Parties’ wishing to provide television services through the network platform.

Today, as we can see from the DOCTORED document from the MoC, the FTA network service provider will become the programme service provider, in high-level competition with those that they serve, because the MOC, for reasons best known to them, decided rather to work with entities whose core businesses are the provision of broadcast programme services as partners, which contradicts one of the NCA rules as stated above, if the MoC is allowed to carry out its agenda as planned.

This is not about the media industry alone but DEMOCRACY as a whole because of what the doctored document contains. Imagine the Broadcast Press service in Ghana, controlled by the push of one button?

Their game this time around is to target the consumers of broadcast contents through the distribution and controlled management of the only Free-to-Air DTT platform. In the past, the control over the only national broadcast service could get the citizenry influenced with one-sided government propaganda. Now, if the TV reception devices nationwide are controlled, the greater part of the objective is achieved and even if the Government becomes repentant and changes its approach, it would be impossible to reverse gear because once the tax-payer funded decoders are circulated into Ghanaian homes, the software and CA providers, who are strategically holding the keys to the software within the decoders nationwide, can still communicate with the decoders from any part of the world. This is a massive agenda against the future of Ghana's Democracy, which has survived till today, largely because of Plural Media and Press Freedom. Let us rise to the defence of our democracy for the sake of posterity. The question is; should anyone (be it the government of any POLITICAL PARTY or individual) have control over the Broadcast content delivery in the country?

Once this is achieved, the national broadcast infrastructure itself will not be of any importance, should the main scrambling device be removed subsequently. Let us be clear in our minds that nobody can retrieve the decoders already supplied to homes across the nation. They can be addressed by any third party in connivance with the software owners. 

Should we be working with a software controller, who holds the key to our broadcast space by default, because they SHALL be required to update the software they implanted???

GIBA urges all well-meaning Ghanaians and leaders from the political divide to question what is going on.  Let us defend our constitutional right to FTA media platforms and safeguard our media space from sinister ownership and the negative machinations of the MoC.

GIBA is prepared to lead this fight to its logical conclusion.

Signed

President GIBA

Andrew Danso-Aninkora