The Judgement itself depicted BOCRA as an organisation which wants to apply a one-size fits all approach to all its regulated entities despite their diferent classificaion - a matter that stands to scare service providers from making it easy for consumers to receive services.
It equally helped to show that lots of institutions in the country do not challenge the Regulator in terms of seeking interpretations of the regulations and the Act. The institutions seem to believe that the Regulator is always right and what MultiChoice has done twice is in the best interest of the industry because it has provided an opportunity for the courts to interpret the regulations.This is a good thing not only for MultiChoice but also for the industry. An example is that about four companies were invited to come and receive their respective licences, but MultiChoice refused while Starset Botswana, Kwese and others simply received their licences with the same controversial clause, but never bothered to question BOCRA.
These companies were happy to be licensed but had not scrutinised the conditions of the licence whether they are practical or not.At the centre of the controversy of the marathon trial is Clause 13 of Section 90 of the licence which calls for MultiChoice Botswana to submit to BOCRA in writing a proposal, in respect to subscription fees it intends to apply. MultiChoice refused to take the licence arguing that they can only do so after Clause13 has been scrapped off as they are a Subscriptions Management Service (SMS) company and not a Broadcaster.
The case was a repeat of the first one that took place in 2005 under the National Broadcasting Board (NBB) where MultiChoice Botswana advanced the same arguments. During the trial that started in April 2013 it became evidently clear that all BOCRA did was to insert the failed clause on the new Act stating that they are including SMS companies but without going deeper into understanding the relationship between a subscriptions management company and a broadcaster.
This is despite that different industry players are classified or structured differently, but the ruling has now put to bed once and for all the fact that an SMS company is not a broadcaster. The ruling was made in 2005 by Justice Walia; it was upheld by the Court of Appeal.
The ruling states that if BOCRA’s intention is to regulate a foreign broadcaster in Botswana, then they will have to find a way of regulating that foreign broadcaster instead of finding an elusive way, as Justice Brand put it. This surely is a big challenge, but what is not disputable based on the judgement is that BOCRA cannot regulate broadcasters by proxy. More concern during the trial was that some of the companies such as Starset are completely independent of the broadcaster, they do not even have a relationship as they are simply agents but are given licences that allows them to pay tariffs .
Justice Motswagole’s judgement was focusing on the relationship between SMS Company and the Broadcaster that they share a common relationship.The question that arose is what if the agent does not have a common shareholder with the broadcaster? The judgment answers this when it shows unequivocally that MultiChoice Botswana is simply an SMS provider and therefore the regulator cannot impose conditions on an SMS provider and at the same time on the broadcaster.
In terms of the high court judgement, companies such as CineMedia who are agents for Netflix were going to be regulated according to what Netflix is charging in Botswana through CineMedia. It is clear that BOCRA was derailed by the fact that MultiChoice Botswana and MultiChoice Africa are sister companies who share common shareholders.
Court of Appeal
In his order Justice Brand who appeared with Justice Walia and Justice Zibani Makhwade set aside the high court order and replaced it with an order reviewing and setting aside Clause 13 of MultiChoice Botswana’s licence, dismissed BOCRA’s counter application and directed them to pay costs of the High Court proceedings, including costs of the two counsels. Justice Brand stated that MultiChoice Botswana’s challenge to the validity of Clause 13 essentially rests on two grounds - firstly that, although BOCRA is authorised in terms of Section 32 (2) of the Act to issue a licence subject to such conditions as it deems necessary, those conditions must pertain to and be appropriate to the conduct and activities actually undertaken by the licensee itself.
MultiChoice Botswana’s licenced activities do not form part of the actual broadcasting activities which are taken by MultiChoice Africa, consequently, MultiChoice Botswana cannot be bound to conditions that pertain to actual broadcasting in which it performs. Justice Brand stated it somewhat differently, that BOCRA is not allowed to regulate the activities of MultiChoice Africa by proxy through imposing conditions on the license of MultiChoice Botswana as it was proposed to do. Brand further confirmed that MultiChoice Botswana has no control and input with regard to tariff rates charged to subscribers nor the content of the programming or composition of the packages or bouquets of channels presented to the subscribers, and therefore cannot comply with section 13, and that BOCRA is not allowed to impose conditions which are impossible in a licence.
Speaking to BG News on what their next step is BOCRA’s Communication Manager, Aaron Nyelesi said that their legal team was constrained to respond to media questions before the Board is briefed on what the case means and what could be the way forward.
“Despite this, the court has held that the licence is still valid without clause 13. Basically MultiChoice should be regulated as an SMS provider. The court views clause 13 as BOCRA’s way of imposing conditions on MultiChoice Africa through MultiChoice Botswana, which is in the opinion of the court, wrong. However, note that they advise against us being quoted before the executive structure has been briefed to advise on the way forward”.
MultiChoice Botswana (MCB) has won temporary amnesty in an urgent court application to interdict Botswana Communications Regulatory Authority (BOCRA) from implementing its enforcement guidelines against them.
At the centre of controversy is Section 90 of the Botswana Communication Regulatory Authority Act which requires all the licensed service providers to submit their intended tariffs to BOCRA for approval.
MCB argues that it is impossible for them to provide such tariffs because they do not provide such services, instead such services are provided by MultiChoice Africa.MCB brought the matter before High Court Judge Tshepho Motswagole on an urgent basis on Wednesday morning where seasoned attorneys were lined up.
Attorney Virgil Vergeer of Collins Newman and Company assisted by Keamogetswe Sefakwe appeared for BOCRA. MCB was represented by Advocate Stephen Vivian appearing with instructing Attorney Sipho Ziga of Armstrongs Attorneys. The two were accompanied by Attorneys Wendy Rosenberg and Samantha Sinden of Werksmans in South Africa.
BOCRA’s argument is that as a licensed service provider, MCB is bound by the terms of the license and the Act which require them to submit the tariffs for approval. At Wednesday’s hearing the court only dealt with the issue of urgency which was decided in favour of MCB meaning the hearing of the application will be expedited with argument set for 20th October 2017.
BOCRA attorney argued that MCB failed to demonstrate that the matter is urgent as they have known about the terms of the licence since 29 June 2017, but did nothing to challenge it in court.
While MCB attorney, Advocate Vivian argued that the matter was urgent because BOCRA had since given them up to 17 October 2017 to have complied failing which BOCRA would implement its enforcement guideline.BOCRA is required to have filed its affidavit on September 29, 2017 while MCB will file its own on October 10, with heads of arguments set for filing on October 17.
Should the court grant the interdict MCB will then pursue its review application against the decision of BOCRA relating to the implementation of license conditions, alternatively the conditions as required by section 90 of the Communication Regulatory Act. Court records show that both parties have been exchanging letters but never got to agree with each other as BOCRA wanted MCB to comply with the license in its entirety notwithstanding that MCB has instructed its attorneys of record to institute court proceedings applying for declaratory relief as to proper interpretation of Clause 13 of the licence, and to the extent necessary, to review and set aside the Authority’s decision to include terms in the licence.
MCB argues that they cannot comply with this clause because their role is to provide subscription management services for subscribers to the DStv service Botswana. These services include subscription fee collection, marketing and sales, technical and installation support and the operation of a national call centre.MCB does not provide a broadcast service, and does not have any control or input over the content channels which are included in DStv service.What prompted MCB to act was a letter dated 5th September written by BOCRA to MCB’s then general manager Billy Sekgororoane informing the latter of BOCRA’s mandate to carry out tariff regulations in terms of Section 90.
MCB wrote back through their attorneys on 29 August requesting BOCRA to provide them with a written undertaking not to take steps against compliance of clause 13 of the MCB licence. But, BOCRA could not budge maintaining that their position as indicated in their letter of 18 August 2016 stands.
Botswana Communications Regulatory Authority (BOCRA) awarded licences to new television broadcasting players last week, marking another milestone towards Botswana’s vision of a connected and informed society.
BOCRA awarded a licence to a Subscription Management Service Provider and two licences to two Subscription Satellite Television Service Providers. This follows after the organisation last month awarded the first set of licences to Subscription Management Service Providers.
The new licencees were Ovy Network, Alfaview, Clouds TV and Econet Media Botswana. Handing over the licences, BOCRA acting chief executive, Tshoganetso Kepaletswe said the satellite Television Service providers will broadcast content as a single channel or aggregate several channels built into a bouquet.He said the content could be locally produced by the licensee or commissioned from third parties in the form of a full channel or specific programme. “It is important to note that the licensee will carry all the broadcasting obligations especially of material that is suitable for Botswana broadcasting. Conscious of the broadcast market dynamics, we would like to urge new entrants to make a strategic shift towards creating your own content and even better quality local content,” Kepaletswe said and adding that creation of local content is vital in a society as it provides material that is relevant to the audience.
The BOCRA official said value of local content cannot be overemphasised as it is through local content that local broadcasters can showcase abundant talent and creativity that exists in the country. He said on the other hand, local content presents an opportunity for the industry to showcase the country’s rich cultural diversity and through that, broadcasting will contribute directly to the economic empowerment of people.
Already, BOCRA has commenced initiatives to facilitate the development of local content and is currently working alongside other stakeholders in the local content committee to devise ways and means of facilitating production and consumption of local content. Kepaletswe urged producers to take keen interest and participate in the initiative. He said BOCRA’s mandate is to foster the development of broadcasting service and increasing variety of choice for customers. Traditional broadcasting, in comparison to online broadcasting is capital intensive and requires a lot of investment and due to the small population in the country, there has been low interest in venturing into the broadcasting sector.
“We all know that advertisers who are the primary financiers of broadcasting are driven by large audiences, for the simple reason that they want a wide reach for their products, fortunately, due to technological advances and different facility sharing models, the cost of running a broadcasting station is coming down,” said Kepaletswe.
In light of these developments, the authority said it is giving opportunity for aspiring broadcasters to venture in this sector.
“I believe you will not disappoint and our predecessors have previously issued licences under other licensing categories, but the licencees never progressed beyond holding a licence. Our reason for licensing more players is to see the industry grow and offer consumer variety of choice,” said Kepaletswe.Econet Media Botswana’s KWESE Executive Director, Kagiso Mmusi, expressed gratitude towards BOCRA for awarding the new licences and said this is a great opportunity for them to meet and satisfy the country as they are going to bring more TVs with different channels which can educate and entertain.
“At KWESE, we have already launched in nine countries and we have about 61 channels and we will be launching here in Botswana in the next two months and we already have offices and a team of staff,” he said. Mmusi said they will try to make sure that they fully utilise the licence and believed that other new players would do the same.
Botswana is ranked 5th in Africa and 108 in the world in the Global ICT Development Index (IDI), a point up from 109 realised in 2015. According to the report Africa region registered by far the lowest regional average IDI performance.
Only three countries in the region - Mauritius, Seychelles and South Africa - fall into the two upper quartiles of the IDI distribution or exceed the global average value in IDI 2016, while Cape Verde and Botswana exceed the average value of 4.07 for developing countries.
“For Botswana to reaffirm her position as 5th in Africa is confirmation of the positive strides that this country has made on the global ICT arena. The country is doing very well in terms of two parameters of Access and Use but still needs to put more effort into improving ICT skills,” says BOCRA Chief Executive Officer Thari Pheko.
By contrast, 29 out of 39 African countries in the Index rank as Least Connected Countries (LCCs) in the lowest quartile of the distribution, and the region includes all ten countries at the bottom of the global rankings. Findings illustrate the extent to which Africa lags behind other regions in ICT development and importance of addressing the region's ongoing digital divide.
All countries in the region showed some improvement in IDI value between 2015 and 2016, although in 11 countries this improvement was marginal (less than 0.10 points). The average improvement recorded was 0.18 points, less than the average improvement of 0.22 points for developing countries.
This year's results show that nearly all 175 countries covered improved their IDI values between 2015 and 2016. During the same period, stronger improvements have been made on ICT use than access, mainly as a result of strong growth in mobile-broadband uptake globally. The report was released last month.
Work opportunities for the thousands of jobless ICT graduates abound in the postal services sector, which risks being rendered irrelevant by the sweeping changes brought by technology and competition from alternative modern media communication platforms.
Deputy Chief Executive Officer of Botswana Communications Regulatory Authority (BOCRA) Mphoeng Tamasiga told the 14th Annual Meeting of Southern Africa Operators Association (SAPOA) in Gaborone that the postal sector ought to modify its business models to remain relevant in the service of local communities. Further the postal sector must embrace the rapid changes in technology to help the industry become relevant and sustainable. One way to do this, he said, was for the postal sector to exploit the many government support schemes and opportunities available for ICT graduates.
“Some of these opportunities need collaborations with communities who will reap socio-economic benefits,” he said. Southern African Development Community (SADC) Secretariat representative Cecilia Mamelodi-Onyadile said that they recognise that the postal sector touches human lives in various ways and contributes significantly towards the development of SADC economy.
She said that the SADC Postal Sector plays an important role in ensuring access to Universal Postal Services with the modernisation of the post office and the introduction of the e-Post within the region. She commended SAPOA for continuously finding ways of re-inventing the post office to serve citizens. Mamelodi-Onyadile said that the study on Postal Reforms in SADC, which commenced in January 2014, has resulted in the SADC Model Policy Guidelines on Postal Services, which have since been approved by the SADC Ministers responsible for postal, communications and ICT.
Botswana Communications Regulatory Authority (BOCRA) has refuted protestations that internet bandwidth price reductions have not translated to the end consumers, as consumers allege.
This publication has gathered from a number of forums held in Gaborone by various stakeholders that customers decried high Internet prices despite numerous price cuts by the Botswana Telecommunications Corporation’s Limited over the last two years. BOCRA Director of Communications, Aaron Nyelesi responded to BG Business recently that, “It is incorrect to suggest that reduction in bandwidth wholesale tariffs has not trickled to the customer. It should be noted that the reduction on bandwidth affects mainly the price of Internet services and BOCRA has seen reduction of Internet prices over time for the end user.” BOCRA’s submission which regulates Public Telecommunications Operators depicts price reduction of ADSL (internet) services that are enjoyed by customers as follows: Bronze package prices reduced by 52 percent between 2013 and 2014 from P547.23 to P264.33 (per 512/128kilobytes per second-kbps); Platinum reduced from P943.00 to P654.25.
In addition, prices were reduced twice in 2014 in line with reduction in wholesale prices. According to BOCRA, Public Telecommunications Operators (PTOs) have also been reducing Internet prices for the prepaid customers to more affordable packages. What also transpired from a BoFiNet stakeholders’ seminar earlier this year was that BOCRA as the regulator has always indicated that there is no legislation that compels it to take action against those network providers that do not cut down prices to consumers. Therefore, they are calling for BOCRA to tighten the regulation. In response, Nyelesi explained that provision of Internet services is a fully liberalised and competitive market with many service providers in operation including the Value Added Network Service (VANS)/Internet Service Providers (ISPs). “Regulation of prices is focused on areas where the competition is limited.
BOCRA can still regulate if competition fails. However, such a scenario has not yet been reached in our market.” He additionally submitted that, “There is price regulation for most of the services that PTOs provide because there are only three players in the market.” In 2011 BOCRA issued a directive to all the three PTOs to implement new prices and they obliged, he said. He highlighted that retail service packages are many and varied. There are packages that can be purchased for as low as P9.50 a bundle. The lower the bundle capacity the higher the price per meg and vice versa.
Only Orange Botswana introduced prepaid data bundles in 2011 while Mascom, charged per meg. Botswana Confederation of Commerce Industry and Manpower (BOCCIM) ICT sector chairman, Neo Nwako at one of the forums told BG Business that the creation of BoFiNet has helped at corporate level as prices have since dropped even though it does not commensurate with excellent service. The remaining challenge however, he said is on individual market, adding that “the cost of Internet is extremely high especially mobile Internet, for instance 3G. There continues to be complaints that some retailers are not passing the price reduction to the end users. The consumer is still however spoilt for choice because there are a lot of service providers available. The only thing with BoFiNet is that it is not there to bring medium to long term Internet solutions to ensure that Botswana’s competitiveness is enhanced by connectivity using various technologies.”
Also HATAB Chief Executive Officer, Lilly Korong had indicated that the costs of Internet need to be reasonable, adding that the pricing currently is exorbitant. “As long as the regulator is not willing to change the legislation, customers will not benefit from the price reduction,” she said. According to the Southern African Development Community (SADC) mobile pricing comparison of 2014, Botswana is amongst the cheapest Internet providers. Botswana comes third after Tanzania and Mauritius in that order. Of Botswana’s three PTOs, beMobile is the cheapest provider of Internet services followed by Orange and Mascom coming third.