Will a denial of broadcasting service to digitally non-compliant households constitute a violation of the constitutional right to receive information and ideas?

 

Digital broadcasting has emerged as a globally accepted standard for next-generation mass media. It presents a method of relaying radio and television signals with various advantages from analogue broadcasting. It enables a more efficient use of bandwidth and the bundling of multiple channels in one frequency. Moreover, digitally broadcast images, video and audio have a higher quality than their analogue counterparts. The transition from digital to signal broadcasting is arguably the most significant technological cross-over for television and is only closely rivaled, if not slightly surpassed, by the invention of colour television.

 

At the stroke of midnight at the end of 17th June 2015, all nations will cease all analogue broadcasts of radio and television signals and switch over to the transmission of digital-only signals with the exception of

digital migration
digital migration

some developing countries for which the transition period will end on 17 June 2020. On that date, all analogue television sets for which the owners will not have installed a digital signal converter will go black.

In Kenya however, the communications Commission of Kenya (CCK) have new self-imposed datelines. They will carry out the analogue switch-off exercise in 3 phases to wit; Nairobi on 13th December, 2013; Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye, Kisii, Nakuru and Eldoret on 30th March, 2014 and the rest of the country on 30th June, 2014.

Consumers of analogue television services and members of the public in general through Consumers Federation of Kenya (COFEK) have opposed the move by CCK to switch off analogue television frequency signals by 13th December 2013 or any other date before June 2014. They contend that this notice is too short and inappropriate considering that December is a festive season, immediately after which school re-opening calendar together with prevalent economic challenges facing Kenyans puts financial pressure on poor households not to forget the need for Kenyans to follow important national developments which include devolution and constitutional implementation processes, among others.

CCK’s decision, in the event that it is sustained, will lock out millions of Kenyans from following important national matters such as legislations, government policies, and matters of national interest, among others as envisaged under Article 35 of the Constitution of Kenya. While they claim , that so far 500,000 set boxes have been sold in Nairobi, there is no similar evidence and goodwill to demonstrate that the over 3,500,000 remaining television owners will purchase the compulsory and prescribed gadgets

The consumers and general public right to information will be severely infringed because current free-to-air channels, some paid for by the taxpayer, are being forced into pay-TV bundles vide a set-top box which are not free of cost. The specific case in which consumers of television services cannot access NTV, Citizen TV and KTN on the StarTimes platform is one such discrimination, against Article 27(4) of the Constitution of Kenya, which is being perpetuated with untold impunity as CCK maintain their loud silence. It should be a requirement that all set-top boxes/integrated digital TVs must be able to receive all non-encrypted free to air TV. In Denmark, the Ministry of Research and Communication has determined (Danish Ministry of Research, departmental order no. 709 of 25 June 1996) that “Digital decoders must be constructed in a way that allows non-encrypted digital TV signals to pass transparently through them.”

Further, there has been no sufficient public information, education and communication campaign to raise awareness on digital migration to allow consumers the freedom of choice as envisaged in Article 46 of the Constitution of Kenya 2010 and the Consumer Protection Act, 2012.

digital 2
The foregoing concerns are not the bitter pill of new technology that a society must take at a certain time in its development. Rather, once resolved, they will be the relish with which the consumer will find the transition to digital broadcasting more appetizing. The national digital broadcasting switchover programme will need to anticipate and resolve these concerns.

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The Internet and The Consitution:Consumer Rights

In the emerging digital economy where technology is rapidly taking the place of personal interactions in the supply of goods and services, the consumer has become both more empowered and more vulnerable. Strong consumer protection regimes are an imperative for an Internet-driven globalized market.

The repealed Constitution did not make any provisions declaring the rights of consumers. Consumer protection therefore remained the subject of statutory enactments/Acts of Parliament. The Kenya Information and Communications Act, 1998 and its Kenya Communications Regulations 2001 made various provisions for the protection of consumers of ICT services.

However under the current Constitution,in section 47 all Consumers    have the right-

 

  •  to goods and services of reasonable quality;
  • to the information necessary for them to gain full benefit from goods and services;
  • to the protection of their health, safety and economic interests; and
  • to be compensated for loss or injury arising from defects in goods or services.

Closely linked with consumer rights is the right to fair administrative action. A modern trend in many administrative offices has been the adoption of service charters that include an open door policy where members of the public can present their grievances. However, this is a practice that depends on the goodwill of the officeholder as it is not anchored in law. Even while in the communications sector the Regulator, Communications Commission of Kenya (CCK) has been generally fair in responding to consumer complaints, the law will now compel them to also be expeditious, efficient, lawful, reasonable as well as procedurally fair.

Consequently, Consumer Protection Bill, 2011 is to be enacted to provide for the protection of the consumer, prohibit unfair trade practices in consumer transactions,to promote a fair, accessible and  sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to promote responsible consumer behavior, to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements, to make consequential amendments to various other Acts; and to provide for matters connected with and incidental thereto.

Apple Vs. Samsung: Phones that brought the $ 1 billion verdict

Apple won a decisive victory against Samsung in court last week when a jury awarded $1.05 billion in damages to Apple for Samsung’s infringement of design patents, software patents and trade dress.

The Apple Vs. Samsung ruling has been released, and there is a lot to process in there, but one of the most interesting things is the list showing how much each Samsung contributed to the more than $1 billion ruling Accused Samsung Product Amount

Captivate (JX 1011) $80,840,162

Continuum (JX 1016) $16,399,117

Droid Charge (JX 1025) $50,672,869

Epic 4G (JX1012) $130,180,896

Exhibit 4G (JX 1028) $1,081,820

Fascinate (JX 1013) $143,539,179

Galaxy Ace (JX 1030)$0

Galaxy Prevail (JX 1022) $57,867,383

Galaxy S (i9000) (JX 1007) $0

Galaxy S 4G (JX 1019) $73,344,668

Galaxy S II (AT&T) (JX 1031) $40,496,358

Galaxy S II (i9100) (JX 1032) $0

Galaxy S II (T-Mobile) (JX 1033) $83,791,708

Galaxy S II (Epic 4G Touch) (JX 1034) $100,326,988

Galaxy S II (Skyrocket) (JX 1035) $32,273,558

Galaxy S Showcase (i500) (JX 1017) $22,002,146

Galaxy Tab (JX 1036) $1,966,691

Galaxy Tav 10.1 (WiFi) (JX 1037) $0

Galaxy Tab 10.1 (4G LTE) (JX 1038) $0

Gem (JX 1020) $4,075,585

Indulge (JX 1026) $16,011,184

Infuse 4G (JX 1027) $44,792,974

Intercept (JX 1009) $0

Mesmerize (JX 1015) $53,123,612

Nexus S 4G (JX 1023)$1,828,297

Replenish (JX1024) $3,350,256

Transform (JX 1014) $953,060

Vibrant (JX 1010) $89,673,957

Both companies are due back in  court on Sept. 20 to begin the process of injunctions against the devices found to have infringed on Apple’s patents.

The Apple Vs. Samsung ruling (PDF link)