The Ghana Independent Broadcasters Association (GIBA), has filed a suit against the Ministry of Communications and Digitalisation (MoCD) and K-Net Ghana Limited over a decision to unilaterally charge what they referred to as “Contribution Links Fees”.
The Association is in court challenging the Ministry’s decision to grant K-Net the power to disconnect broadcasters from the national Digital Terrestrial Television (DTT) transmission platform on account of nonpayment of the fee charged for the controversial Contribution Link Services without any legal bases or Parliamentary approval.
Contribution Links are technical means of transporting a broadcaster’s programme-contents from their studio facilities to reach a broadcasting headend, (i.e.) the National Digital Terrestrial Television (DTT) Headend, using various technologies and systems such as Radio and Microwave.
Attached to the suit is the Attorney General (AG) by virtue of Article 88(5) of the 1992 Constitution, as the matter is against the MoCD which is under the Executive arm of government.
The Association is seeking among others, an order of the court “quashing the decision of the Ministry of Communications and Digitalisation authorising the disconnection of broadcasters from the DTT Transmission platform on account of nonpayment of the fee charged for Contribution Link services and TV Channel fees.”
Statement of Claim
GIBA says as part of the migration process from analogue to digital transmission, government built the DTT Transmission platform which is designed to receive, host and transmit all television content from all authorised free-to-air (FTA) broadcasters, including the over 400 members of GIBA.
The suit avers that subsequently, the NCA issued what is known as the Digital Replacement Authorisation to all analogue FTA television broadcasters and digital terrestrial television authorisation to new FTA non-analogue broadcasters, with specific requirements as conditions for their operations.
“There is no condition in their respective licences or authorisations that constitutes the Ministry of Communications and Digitalisation or the 2nd Defendant (K-Net Limited) as the only entity to deliver the required digital formatted programmes of broadcasters to the DTT head-end, as a special activity or service,” the writ avers.
It said included in the process which GIBA members holding the NCA authorisation are required to provide, is what is referred to as Contribution Link or Studio-to-Transmitter Link (STL) which is the means by which the contents of broadcasters are transported or digitally made available to various transmissions stations or the location of a DTT Transmissions platform, operating as a carrier network.
The writ states that upon completion of the construction of the DTT Transmissions platform, the MoCD carried out the hosting of all the broadcasters on the said DTT Transmissions platform from the period of test transmissions to date.
GIBA said it has, however, come to its attention that K-Net Limited has been the company that maintains the said platform pursuant to arrangements between it and MoCD and K-Net Limited, and sometime in 2020 served notices containing fees it has charged to members of GIBA and all broadcasters on the DTT Transmissions platform as fees for contribution link services that it purports to be providing and demanded payment from broadcasters failing which it would prevent the said broadcaster from sending any content to the DTT platform for transmission to the general public.
It said K-Net indeed went ahead to disconnect broadcasters who by protest refused to pay the said fees, and reconnected those who yielded to their demands to pay.
GIBA said when it challenged K-Net on the basis of its authority to charge the fees it has demanded from broadcasters, the company “stated that it was the Minister of Communications and Digitalisation who by a letter mandated it to charge and collect the said fees and further to disconnect any broadcaster that does not pay the fees charged.”
The Association however, contends that at no point in time in the migration process was it agreed that there will be the creation of another separately dependent service which the broadcasters would be required to pay for, now being described as “contribution links service”.
GIBA further states that its members are unaware of the arrangement between MoCD and K-Net Limited by way of fees and charges, and have never been informed about any such financial arrangements nor engaged in discussions pertaining to same.
It says the fees are not in accordance with law as the authority that has the power to establish a fee for the use of a national infrastructure like the DTT Transmissions platform is the Parliament of the Republic of Ghana and not by a letter from a Minister of State.
It also contends that the decision to establish the fees by the Ministry is also most unreasonable as it forces a unilateral contract between broadcasters and K-Net to provide a service broadcasters have not requested and of which they are able to provide on their own as required, at a much cheaper cost.
“Plaintiff further says that the further decision of the Ministry instructing the 2nd Defendant to disconnect any broadcaster that refuses to pay the impugned fees is also not backed by law, most unreasonable and amounts to abuse of discretionary powers,” it stated.
GIBA adds that unless restrained by court, MoCD and K-Net shall proceed to charge, demand and collect fees they refer to as contribution link service and TV channel fees and further disconnect broadcasters who refuse to pay even though the said fees are being charged without any legal basis.