Picture: Sunday Times/Simphiwe Nkwali
Picture: Sunday Times/Simphiwe Nkwali

As the dust settles on the Independent Communications Authority of SA’s (Icasa) public hearings into broadcast exclusivity, we are better able to explore the implications of what transpired.

The purpose of the week-long hearings late last month was to gauge support for Icasa’s draft amendments to the sports broadcasting service regulations.

Simply put, the regulations propose, within the context of sporting events Icasa believes are in the national interest, that more content should find its way onto public, free-to-air broadcasters.

Such was the spice of the matter that it attracted submissions from more than 35 parties, ranging from sporting federations to broadcasters, both public and private.

Before the Proteas began to unravel at the World Cup in England, it was the hottest topic in local sport — one given extra tang when it was discovered that Cricket SA, unlike other major sporting bodies, had declined to submit its views.

By the third day, many of the issues raised by Icasa’s draft regulations had coalesced around one figure: Premier Soccer League (PSL) chair Irvin Khoza.

In his submission, Khoza warned unambiguously of ruin for the PSL if Icasa tampered with its deal with MultiChoice’s SuperSport.

Khoza knows about such things. It was he who masterminded the PSL’s crossing of the floor, so to speak, when, after 11 years of lodging its rights with the SABC, the league decided on a commercial agreement with SuperSport instead. That was in 2007 and it sparked an outcry: fans were outraged at having to pay for the privilege of watching local football. It was the "people’s game", after all, and watching it on a free-to-air channel was surely one of the dividends of democracy.

Dali Mpofu, SABC CEO at the time, spoke for many when he said of the public broadcaster’s jilting: "The so-called deal is a laughable sham."

[Icasa’s proposal is] just going to kill the smaller sports and entrench the fact that we’re a three-sport country
David Sidenberg

History has proved Mpofu wrong. Now in its 12th year and worth billions, the deal between the PSL and SuperSport has been a gold mine for both parties.

Showing regular, well-produced local football has led to SuperSport selling thousands more decoders. With PSL football as part of the offering, DStv subscriptions have shown phenomenal growth since 2007.

The PSL has also gained. All PSL clubs, with sponsors or without, get a healthy monthly grant. The players are conspicuously wealthier too. Matches start on time and the names on shirts are spelt correctly. The league is arguably the best run in Africa.

Even the institution many thought would suffer most has benefited. According to David Sidenberg of BMI Sport Info, who gave a presentation at the hearings, the SABC has access to more PSL football as part of a sub-licensing deal with SuperSport than it had when it was the primary rights-holder of PSL football before 2007.

The broadcaster can leverage advertising revenue off of the PSL deal and is no longer saddled with the production costs of hundreds of games per season.

"The irony," says Sidenberg, "is that the SABC has access to more soccer as part of its sub-licensing arrangement than it can show. And the stats confirm that — [they’re] going up year by year."

However, it is moot whether PSL football should feature on Icasa’s list of "national interest" events at all. The Soweto derby between Kaizer Chiefs and Orlando Pirates might count as a national interest event, but would a match between Free State Stars and Bloemfontein Celtic draw a national audience?

The answer, surely, is that a humdrum PSL fixture isn’t of national interest. By smuggling PSL football onto a list of "national interest" events, Icasa has shown its hand.

The draft regulations and the hearings, it seems, did not aim to benefit an ill-conceived "public" at all. Rather, they appear to have been designed to clip the wings of SuperSport — an organisation that has committed the unpardonable sin of being commercially successful.

Khoza was clearly in no mood to bad-mouth his commercial partners.

"We wish to place on record that by no stretch of the imagination is the PSL a national sporting event," he said. "My plea to Icasa is to remove the PSL from any regulation. The impact of such listing will be fatal for football in this country."

Sidenberg thinks the real victims of possible legislation against SuperSport’s exclusivity lie elsewhere.

It’s the smaller sports that will suffer, he says, because they are kept afloat by what they earn from the sale of their broadcast rights to SuperSport. "The real victims of this will be the smaller guys, netball and women’s soccer," he says. Netball has its first black captain, and Banyana Banyana are at their first world cup; both are of national interest and neither is likely to be shown free-to-air.

"Why would SuperSport fork out R50m to netball if legislation says it must be on free-to-air, which can’t produce and can’t pay? [Icasa’s proposal is] just going to kill the smaller sports and entrench the fact that we’re a three-sport country."

While Sidenberg highlights the SABC’s capacity and cash-flow issues, saying that there’s no way it could manage to broadcast events such as the Olympics, he also chuckles at the cut and thrust of the matter. "Word came through at the hearings that SuperSport had just concluded a sub-licensing deal with the SABC for the Cricket World Cup, which was good for everyone, right?" he says.

"Then we found out that it was for two games only — for the duration of the hearings, in other words."

Several observers last week said Icasa’s council of 11 became progressively more conciliatory as the hearings progressed.

More than one federation noted Icasa’s draft regulations are anticompetitive, unconstitutional and legally unenforceable, which reflects poorly on an organisation that has a reputed annual budget of R650m, and which travelled and consulted widely in preparation of the draft paper.

This much appeared to be recognised by Palesa Kadi, one of Icasa’s councillors, who said: "We are careful of overreach — which will result in the regulator being taken to courts of law because of interference. It is not permissible for us to enter into any disengagement between a licensee and a commercial partner."

Given that Icasa is wary of exceeding its mandate — and given the significant pushback from sporting federations — what does the future hold?

The wise favour an incremental approach in which, for example, the regulator steps in to ensure the Springboks’ matches (matches within the "national interest", in other words) are not shown "delayed live" on the public broadcaster, as is often the case, but are shown in real time, simultaneous with SuperSport’s broadcast.

They also point to growing sports that are clearly of national importance — rugby Sevens, netball and women’s football, for example — that Icasa might encourage the SABC to screen more often, particularly as there are world cup tournaments for the two latter sports this year.

What it means

Icasa seems determined to clip the wings of SuperSport

And, finally, a snapshot of where we’re at: only hours after proceedings in Irene had finished for the week, the national under-20 football side played Portugal in their final group game of the Under-20 World Cup in Poland. Helped along by an English commentator who struggled to pronounce the South Africans’ names, the game was shown live on SuperSport’s channel 207.

Over at the public broadcaster, the SABC was screening the Extreme Fighting Championship (produced for the SABC), boxing and an old Jackie Chan flick that contained such eye-poppingly brilliant lines as: "Don’t worry — his brother’s a cop and he’s a retard!"

The football was being played by Bafana Bafana’s stars of tomorrow, against a side who were European Champions in their age group. This was manifestly sport of national interest as defined by Icasa, but it was nowhere to be found on the public broadcaster.

So there we have it. On the one hand, we have SuperSport, master of unregulated consumption, which shows a wonderful range of sport from across the world, but which is complacent about the fiddly things. Its interviewers are shoddy, its attention to detail is often lacking, and it’s shrewd to the point of manipulation behind the scenes.

On the other, we have the SABC, with its revolving door of executives, perpetually squabbling board and lack of war chest to buy the very rights Icasa seems hellbent on legislating that it gets..

Surely, as many were happy to privately admit after the proceedings, Icasa’s well-paid council of 11 needs to go back to the drawing board and tighten its draft. After that, the regulator needs to tread softly as it tip-toes around local sport that is vulnerable in these financially difficult times.