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Pay-TV firms face consumer suit over missing channels

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Nairobi residents shop for set-top boxes for the digital TV signal at a GOTv tent in the city centre last December. Photo/Salaton Njau

Digital TV signal distributors GOtv and StarTimes’ failure to deliver content from three local free-to-air channels has set them on the road to becoming the first casualties of the legal provision for class action suits.

The Kenya Consumer Protection Advisory Committee (Kecopac), a consumer watchdog, said it would go to court on behalf of consumers if access to KTN, NTV and Citizen is not restored within seven days.

Kecopac chairman Stephen Mutoro said the Consumer Federation of Kenya (CofeK) had received numerous complaints over the consumers’ inability to access the channels despite the promise that the two digital distributors made while selling the decoders. 

The disruption of services came in the wake of the April 11 Court of Appeal decision that barred GOtv and StarTimes from broadcasting content from the three media houses without their consent.

The Supreme Court has ruled that continuation of the same would amount to infringement of intellectual property rights of the three TV stations. 

Mr Mutoro, also the CofeK CEO, said cessation of transmission of content from the three channels has inconvenienced consumers who are not party to the dispute between the signal distributors and the three media houses. 

“Cofek confirms that it has received numerous consumer complaints regarding the absence of NTV, KTN and Citizen TV channels on GOtv and StarTimes,” Mr Mutoro said.

“Under the circumstances, and invoking provisions of Section 4 of the Consumer Protection Act, 2012 we will commence class action proceedings against GOtv, StarTimes and the Communications Authority of Kenya (CAK) failing resumption of the transmissions within seven days.”

GOtv and StarTimes are pay television channels but are required to offer at least five free-to-air channels to their subscribers according to the CAK regulations.

The rules also provide for a two-week window during which subscribers who have defaulted on their subscription payments can continue accessing the five channels on any of the platforms.

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GOtv subscribers who want to opt out of the pay- TV bouquet need to pay a one-off non-refundable fee of Sh2,600 with no monthly subscription to access a range of free-to-air channels.

This is the category of subscribers that have been adversely affected by inability to access the free-to-air channels since the court decision was made earlier this month.

Should the consumer watchdog go to court, it will set a precedent for class action suits provided for by the Consumer Protection Act, 2012. 

Under the law, directors of firms that fail to make full disclosure on their goods and services are liable to imprisonment for a term not exceeding five years or to a fine not exceeding Sh10 million for their companies or both.

The law also prohibits use of misleading information to sell goods and services – making the clause the centre-piece of any suits that consumers may file against GOtv and StarTimes.

Besides, the law also provides for punishment of businesses that knowingly sell sub-standard goods and services or lie about their pricing.

Consumers are entitled to warranties for damaged or injurious goods under the law, which also requires products to match marketing hype.

GOtv has been running an apology message promising resumption of services upon signing new contracts with the TV stations.

“We apologise for the interruption on this channel — we are currently in the process of renewing our carriage contract with the channel. We hope to be back in this slot as soon as possible,” reads the communication from GOtv. 

Mr Mutoro, however, argued that an apology silent on resumption date is not enough.

“Consumers prepay for the services under the oral and/or written contract that promises the availability of the FTA channels,” he added. Cofek is also questioning the silence of the industry regulator on the matter, terming it “too deafening not to be noticed.”

Cofek said it would also be seeking compensation for the aggrieved subscribers, a declaration that the two retailers have reneged on their service level agreement with the regulator and that the CAK had failed to protect consumer rights as per its mandate.

“Consumers must be compensated for the period the FTAs have been off-air. Our demand is that the period be treated as if no services were provided and for which an equivalent credit be made to respective consumer accounts,” Mr Mutoro said.

Firms that are found to have supplied sub-standard or injurious products and services are liable to a raft of punitive measures, including recall of such products from the market, repair of defects, replacement of faulty products or payment of refunds to the aggrieved customers.

Mr Mutoro’s warning means that should GOtv and Startimes fail to strike a deal with the three media houses in the next seven days they will face court action from Kecopac.

The agency was established under the Consumer Protection Act, 2012 that was signed into law in March 2013, but whose creation was delayed.

The inability to access some of the television channels is the latest hiccup in Kenya’s plan to transit to digital TV and radio transmission.

When the digital migration process started  consumers were left holding onto set-top boxes — the gadgets that convert analogue signals to digital — that they could not use after the government upgraded the technology from Digital Video Broadcasting Technology-One (DVBT-I) to DVBT2. 

On February 2012 pay TV provider Smart TV closed shop after failing to secure adequate funding for its operations, leaving thousands of subscribers and dealers with obsolete decoders.