For broadcasting, an early celebration of the death of monopoly

In moments of soaring confusion, some salient but very troubling issues may just develop unnoticed. Life goes on while those issues could build into a broth that could trouble the body in future. Especially in businesses where every Naira invested is of major interest to the investor, such things could either help the image of the business environment or deter investors to scram with their funds.

As Nigerians waded through the flood in recent months, slept on the road for days while trying to connect one part of the country to another, or stay overnight at the filling stations, especially for those who live in Abuja, a small story sprouted out of Rivers State and has gained traction in Abuja, of which a final denouement could reverberate into the future of broadcast businesses across the nation.

Standing on the pillars of the 6th Edition of the Nigeria Broadcasting Code, a small broadcast operator in Port Harcourt, capital of Rivers State, Metro-Digital, initiated a David versus Goliath fight, when it took Multichoice to court with a prayer that the biggest pay TV operator in Africa, sub-license some of its channels to the Port Harcourt broadcaster.

Quite innocuous. So it seems. But the wheel of justice grinds slowly and the patient one would usually take the fat bone arising from such an odyssey.

On July 13, 2022, an Appeal Court in Port Harcourt, ordered the broadcast regulator, the National Broadcasting Commission (NBC), to address the programming sublicensing complaint filed against Multichoice Nigeria Limited by Metro-Digital Limited, by bringing the disputing parties to the round table .

In setting aside the judgment of the lower court, the Appeal Court gave the following consequential order:

“An order of mandatory injunction is issued to compel the 2nd respondent to issue directives on the appellant’s complaint against the 1st respondent pursuant to the Nigeria Broadcasting Code, 6th Edition (as amended). The 2nd respondent shall initiate the process for the determination of the dispute between the appellant and the 1st respondent within 21 days of the date of this judgment, under the auspices of the NBC Act, the 6th Edition of the NBC Code and its addendum.”

This was my observation on this development on July 27, 2022. “For me, the broadcasting industry is getting very interesting as the resolution of this case could go a long way to determine how business is done in the industry. It will affect the depth of competition. It will affect content development and ownership. It will teach us to watch out for mischief and act very spontaneously once a document is being done, and some smart fellows are throwing in some hidden traps. In fact it will add some accoutrement to the definition of deregulation in the business dictionary.”

Dear friends, we are there right now. The regulator did not act within the window given, until it was goaded into action, this writer has gathered. Instead of calling a round table meeting between the disputing parties, the regulator with just put under some subtle pressure, has issued a directive to Multichoice to sublicense its channels to a competitor in the industry.

Now the other party is over the moon, and those around are trying to restrain his flight or at least constrain him to the reality of the earth. Such is the victory that can be so sweet but sometimes not too far away from ashes in the mouth.

Part of the NBC letter addressed to the leadership of Multichoice, Nigeria, reads: “You are hereby directed to comply with the 6th Edition of the NBC Code as amended pursuant to Metro-Digital’s request for channel sublicensing as ordered by the Federal Court of Appeal.”

According to reports, Chief Executive of Metro-Digital, Dr Ifeanyi Nwafor, is overjoyed that the regulator has finally agreed with the court order and has equally expressed appreciation to the Federal Government, especially the Minister of Information and Culture, Alhaji Lai Mohammed, and the judiciary.

“We are glad to announce today that NBC has complied with the order of the court. The end of monopoly in the Nigerian broadcasting industry will enhance competition, innovation and quality of service delivery. The industry will enjoy rapid growth and consumers will benefit from competitive pricing that follows,” he was quoted to have said.

You really have to accommodate the excitement of Dr Nwafor and really encourage him to pitch his tent close to reality. Some contents of the Code really gave his spirits verve. For instance, Chapter 6 of the Code focuses on Sports Rights, Acquisition, and, in fact, how an owner should treat his own products apropos the attitude of competitors in the market.

For instance, the Code says in 6.2.5: To ensure fair and effective competition to all platforms at an agreed fee, rights owner, operators or exclusive licenses to Live Foreign Sporting Events shall offer rights to Broadcasters on the different platforms inclusive but not restricted to the platforms stated below – Satellite (DTH), Multipoint Microwave Distribution System (MMDS), Cable (Fibre Optics), DTT(Terrestrial), Internet, Mobile, Internet Protocol Television (IPTV) and Radio.

The only problem however, is that there is no closure on this case yet as Multichoice has proceeded to the Supreme Court, the highest court in the land, asking for relief and protection. I have no knowledge to ask whether the action of the regulator in issuing that directive is fit and proper. Such conjecture belongs to the learned ones in our midst but I can hint here that the journey ahead may be long, windy and rough.

The only other intervening factor here is that sublicensing will be subject to a business decision between owners of contents, including sports, and those who want to be sublicensed. It may interest you that content owners may not want to sell at a loss no matter the content of the Code. It is first a business before those who hide behind patriotism to take what others have built up over time.

Apart from the action already taken by the regulator, I am of the opinion that the entire broadcast ecosystem – the operators, including the parties in dispute, the regulator, the Ministry of Information and Culture, and even the invisible drummers who are playing for the little bird to dance on the road, will be waiting with bated interest to hear the pronouncement of the Supreme Court on this matter. Perhaps, just perhaps, we may be approaching a lasting peace in the broadcast industry.

Irrespective of the developments, I still hold fast to my little opinion that pay TV and premium programming are inseparable but very challenging to achieve. It is expensive and it demands people to wear their thinking, creative cap always. An operator that has achieved a niche in the sector can be accused of monopoly practices. Unfortunately, for me, I have been in some meetings where industry monopolies are discussed. Sometimes, I am in the minority when I point out that monopoly can spring from the greedy appetite of some industry players but, oftentimes, it is fuelled by the laziness of other operators who are either too lazy to innovate, too terrified to dare, or simply do not have the funds to compete fairly.

All of the above are at work in Nigeria. The broadcast industry has been challenged for a long time, leaving most of the operators to point at the direction of one operator who seemingly has stolen their beef. It is worse if such unfortunate reasoning bears the imprimatur of some fellows in government. But it is never too late to purge an idea whose emergence is tragic and unfortunate. The Supreme Court may provide a cushioning but cautionary resolution of a supervening uncertainty. Meanwhile, let’s say a celebratory orison for the death of monopoly in the nation’s broadcast industry!