Court throws out Rainbow TV’s application for judicial review of its broadcasting licence revocation by MACRA

* The deadline given to the TV station to honour the payment was May 31, 2022

* The Court contends that Rainbow TV did not intend to disclose, and in fact suppressed, the material fact that its broadcasting licence had been revoked by the time the claimant paid the balance of the licence fees due

By Duncan Mlanjira

Rainbow TV had its broadcasting licence revoked on June 8, 2022 by Malawi Communications Regulatory Authority (MACRA) for being in substantial breach of its broadcasting obligations by failing to pay to pay annual license fees.

The deadline given to the TV station to honour the payment — which had a grace period of consultation between the two parties — was May 31, 2022 and 14 days after the licence revocation (June 22, 2022), Rainbow paid the sum of K10.348 million through a postdated cheque no 001030, drawn from FDH Bank account no. 1970000030476 due on June 22, 2022.

When MACRA received the payment, the regulator wrote Rainbow TV that: “Regrettably, be advised that any payment outside Board stipulated timelines cannot be accepted without prior approval of the Board.

“According to the letter dated 20th May 2022 from the Authority, the deadline for your payment was 31st May 2022. Further, be advised that once a licence is revoked as in your case, the only way to have a valid licence is to apply for a new licence,” said the letter from MACRA Director General, Daud Suleman dated June 20, 2022.

The TV station, owned by Prophet Shepherd Bushiri, then applied in the High Court for intervention “under Order 19 rule 20 (3) Coirts (High Court) (Civil Procedure) Rules without notice to the defendant [MACRA] for an order for permission to apply judicial review of the putative defendant’s decision not to decide or communicate its decision to the claimant on the claimant’s application for the renewal of its private broadcasting licence made on the 3rd April, 2022”.

Having reviewed the application and evidence rendered in through Justice M.A. Tembo’s Chambers, the Court observed that Rainbow TV did not disclose that it received the revocation letter on June 8.

“…It is the considered view of this court that the claimant did not intend to disclose, and in fact suppressed, the material fact that its broadcasting licence herein had been revoked by the time the claimant paid the balance of the licence fees due,” said Justice Tembo in his determination dated July 8.

“The claimant then asserted that it paid the balance of the licence fees on 22nd June, 2022 but it is clear that by then the licence of the claimant had been revoked by the defendant for breach of the terms of the licence regarding payment of licence fees.”

Justice Tembo observed that Rainbow TV’s case “is hopeless and not fit for further investigation at a full hearing” which would have then involved the defendant, MACRA.

“The claimant was in breach of its broadcasting licence by failing to pay licence fees,” said Justice Tembo in his determination, adding that MACRA had engaged Rainbow TV during the period within which the station applied for renewal.

“In such circumstances, the view of this Court is that the claimant could not reasonably expect the defendant to decide and communicate on renewal of the claimants broadcasting licence when the claimant was failing to to honour licence fees obligations on the subsisting broadcasting licence.

“After the revocation, the obligation to communicate the decision on the licence renewal lapsed because there was nothing to be renewed. The claimant cannot therefore legitimately expect the defendant to consider renewal of a license that was revoked.

“That makes the present application inapt [and] in the foregoing premises, this Court is compelled to decline the claimants application for permission to apply for judicial review for being unfit for further consideration at a full hearing for judicial review, as envisaged in the case of Ombudsman v Malawi Broadcasting Corporation [199] MLR 329.”

In announcing the licence revocation last month, MACRA’s Communication Manager, Zadziko Mankhambo had advised all licensees in the Telecommunications, Broadcasting and Postal sectors that failure to pay annual license fees is a serious breach of their licenses and they risk having their license revoked.

He had disclosed that Rainbow TV had flouted what is stipulated in the Communications Act which demands TV broadcasters to pay an annual fee currently pegged at $5,000 (approx K5.1 million).

“They have failed to do what is required of them as stipulated in the Act, as such, we have indeed revoked their license having failed to pay the annual license fee which they last paid six months ago,” Mankhambo said.

He further clarified that there is no clandestine motive behind the revocation as MACRA has only acted upon powers vested in the Communications Act.

Reacting to the news in an interview with Malawi News Agency (MANA) Rainbow TV Station Manager, Aubrey Kusakala, attributed the delays of payment due to ownership wrangles between the major shareholder Prophet Bushiri and former owner Omar Kaisi.

“Prophet Bushiri was non-committal to settle dues as ownership [arrangements] of the station was not completed at the time, as such, after an agreement with MACRA, we agreed to pay them in installments,” he was quoted as saying.

“We paid K4 million in December, 2021 and also the same amount in February 2022. We committed to finalise the remaining amount by 31st May, but due to the current financial climate, we recently asked for an extension of 90 days which was not responded to.”

Kusakala further alleged that many television houses have been struggling to generate income and it is not only Rainbow TV owing MACRA outstanding payments, others are yet to settle bigger remittances.

“Many media houses made their pledges to MACRA during a meeting in Mangochi to which we were not invited. If we go off air, over 80 employees supporting 400 households will be rendered destitute,” he had said.

At a breakfast meeting MACRA had with media managers held in Lilongwe last week, president of the Media Institute of Southern Africa (MISA) Malawi Chapter, Theresa Ndanga appealed to MACRA to consider revoking television and radio licences from media houses which owes the regulator.

During the meeting, MACRA Director General Suleman disclosed that they were owed over K9 billion by operators in the broadcasting, telecommunications and postal services — with broadcasters’  at about K750 million with telecommunications operators at about K7.5 billion — date back to 2014.

While recognising MACRA’s legal mandate and broadcasters’ statutory obligations, Ndanga said there was still a need for it to consider their stand in the wake of economic challenges the country is facing that also affect the media business.

Thus her call that there was the need to consider broadcasting growth, business interests of owners and welfare of broadcasters before resorting to revoking licenses.

She also said there was need for MACRA to discuss with the concerned broadcasters on how they can settle the debts in instalments over a period of time while coming up with proper mechanisms for handling payment of license fees in future.

While indicating that the regulator would be revoking more broadcasting licenses, DG Suleiman said they were open for discussions to resolve the issue.

He contended that that over the years, MACRA has not been proactive in following up the debts and some broadcasters have not been fulfilling their statutory obligation.