The Malawi Communications Regulatory Authority (MACRA) has lost a case against Multichoice Malawi over management of DStv subscription fees.
This was a judicial review case in which MultiChoice wanted the court to interpret the law on whether or not MultiChoice Africa Holdings should be seeking approval from Macra before adjusting DStv tariffs.
The move followed Macra’s decision to stop MultiChoice Africa Holdings (MAH) from adjusting tariffs without its approval.
High Court Judge, William Yakuwawa Msiska has ruled that MACRA was not supposed to regulate DStv rates as they are not set by MultiChoice Malawi.
This means that MAH can now implement earlier DStv tariffs. However, with the recent 40 percent devaluation of the Kwacha, there is likelihood that there will be an increment on the same.
The Atlas Malawi outlines events leading to the withdraw of DStv services in the country.
Multichoice Malawi (MCM) is a content broadcasting service provider with a content licence renewed on 24th July 2020 for a period of 7 years to provide Subscriber Management Services (SMS).
Under the SMS licence, DSTV offers five bouquets/packages from high to low end: (premium; compact plus; compact; family; and access)
The Licence, together with the Communications Act, sets the terms and conditions to be implemented by all service providers including MCM.
Previous years up to June 2022, MCM has been submitting to the Authority all its tariff requests to seek approval.
On 3rd June 2022 – Multichoice Malawi (MCM) submits a tariff request to MACRA for DStv and GOtv services.
On 21st June 2022 – MCM makes a public announcement to adjust tariffs effective 1st August 2022 before the MACRA Board convenes for an approval of the same
On 24th June 2022 – MACRA Technical Committee met to consider tariff requests, however, MCM’s request was not deliberated due to the public announcement on the price adjustment made on 21st June 2022.
On 28th June 2022 – MACRA notified MCM of a preliminary finding of breach of section 74(1) of the Communications Act and Clause 11.2 of MCM’s SMS licence for implementing DStv tariff adjustment without prior approval from MACRA.
On or around 12th July 2022 – MCM applied to the High Court for permission to commence judicial review proceedings, challenging MACRA’s preliminary finding that MCM had breached the Communications Act and its licence and further challenging MACRA’s decision to invite MCM to a disciplinary hearing. MCM also applied for an injunction against the hearing.
On 13th July 2022 – MACRA suspended MCM’s disciplinary hearing pending the decision of the High Court on MCM’s application to commence judicial review proceedings.
On 25th July 2022 – the High Court refused to permit MCM to commence judicial review proceedings against MACRA because the application was premature. MCM should have first attended the disciplinary hearing before approaching the High Court. The application for injunction was also dismissed.
On 1st August 2022 – MCM proceeded to implement the tariff adjustments without approval from MACRA Board.
On 28th November 2022 – MCM was heard before the Legal and Administration Committee (LAC) of the Board of MACRA, which recommended to the Board to find MCM in of breach of the Communications Act and the licence for implementing tariff changes without prior approval.
On 22nd December 2022 – MACRA Board upheld the recommendation by the Legal and Administration Committee and made a final finding of breach. The Board imposed the following sanctions:
a. that MCM should pay K10 million fine;
b. cease and desist from implementing the revised and unapproved tariff structure; and
c. refund the customers the difference between the unapproved tariffs and the approved tariffs.
On 13th January 2023 – MCM was granted leave to commence judicial review proceedings against MACRA and obtained an injunction restraining MACRA from implementing the decision in 10 above, to find MCM in breach and from implementing the consequential sanctions imposed on MCM.
On 17th January 2023 – MACRA DG meets with MCM General Manager at BICC in Lilongwe to map a way forward.
From 23rd to 27th January 2023 – MACRA and MCM engaged at technical level at Nkopola Lodge in Mangochi for an amicable settlement of the court case. But negotiations failed due to the insistence of MCM that DStv tariffs should not be subject to prior approval by MACRA.
On 14th June 2023 – MACRA Board met with MCM/Multichoice Africa Holdings (MAH) led by their Group CEO in Salima to discuss on possible settlement out of court of the matter.
On 11th July 2023 – MACRA Board approved the recommendations from the Salima meeting to allow MCM to ‘notify’ the tariffs to the Authority but with MACRA reserving the right to intervene whenever it deemed the proposed tariff implementation unfair or unjust. MACRA wrote MCM of the proposal. MCM has not responded.
On 17th July 2023 – MCM notified MACRA of the proposed tariff increase for DSTV services effective 1st August 2023.
On 28th July 2023 – MACRA obtained an injunction from High Court restraining MCM from implementing second DSTV tariffs without prior approval from MACRA.
On 31 July 2023 – MCM obtained a temporary relief/order to stay implementing the injunction that MACRA obtained. The temporary stay was granted to allow MCA to rectify its system, which was already set to bill using the new tariffs. The order was for four days until 3rd August 2023.
On 1st August 2023 – MCM proceeded to implement the second tariff adjustment without approval from MACRA Board.
On 4th August 2023 – MCM applied to the High Court ex parte (without giving notice of the application to MACRA) for directions on how it should conduct itself and to avoid being in contempt of court in view of the fact that Multichoice Africa Holdings Ltd (MAH) had stated it could not reverse the DSTV tariff adjustment for Malawi. The High Court directed that the application be heard inter parte (both parties to be present at the hearing) on 7th August 2023. Consequently, the court extended the stay order to 7th August 2023, the date of the inter parte hearing.
On 8th August 2023 – the High Court A hearing of both parties on the injunction was held and the High Court upheld the injunction obtained by MACRA and vacated the stay order obtained by MCM.
On 8th August 2023 – MCM announced the withdrawal of DStv services in Malawi.
On 25th August 2023 – Full trial of the case.
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