Malawi: Court rejects Rainbow TV’s application for judicial review of revocation of its broadcast license by Macra

Rainbow TV had its broadcast license revoked on June 8, 2022 by the Malawi Communications Regulatory Authority (MACRA) for substantial breach of its broadcast obligations by not paying the annual license fee.

The deadline given to the broadcaster to honor the payment — which had a consultation grace period between the two parties — was May 31, 2022 and 14 days after the license was revoked (June 22, 2022), Rainbow paid the sum of K10.348 million through a post-dated check no. 001030 drawn on HDD bank account no. 1970000030476 due June 22, 2022.

When MACRA received the payment, the regulator wrote to Rainbow TV that: “Unfortunately, please be aware that any payment outside of the timelines stipulated by the Board cannot be accepted without the prior approval of the Board.

“According to the Authority’s letter dated May 20, 2022, the payment deadline was May 31, 2022. Also, be aware that once a license is revoked as in your case, the only way to have a valid license is to apply for a new license,” reads the letter from MACRA Director General Daud Suleman, dated June 20, 2022.

The TV station, owned by Prophet Shepherd Bushiri, then asked the High Court to intervene “under Order 19 Rule 20 (3) Rules of Courts (High Court) (Civil Procedure) without notice to the defendant [MACRA] for an order granting leave to apply for judicial review of the putative defendant’s decision not to rule or communicate its decision to the plaintiff on the plaintiff’s application for the renewal of his private broadcasting license made on April 3, 2022 “.

After reviewing the request and the evidence presented through the office of Judge MA Tembo, the Court observed that Rainbow TV did not disclose that it had received the revocation letter on June 8.

“…It is the considered opinion of this Tribunal that the Applicant had no intention of disclosing, and in fact suppressed, the material fact that its broadcast license was revoked at the time the Applicant paid the balance of license fees due,” Judge Tembo said in his decision dated July 8.

“Claimant then claimed that he had paid the balance of the license fee on June 22, 2022, but it is clear that at that time, Plaintiff’s license had been revoked by Respondent for violation of the terms of the license regarding the payment of license fees.

Judge Tembo observed that Rainbow TV’s case “is hopeless and does not lend itself to further investigation at a full hearing” which would then have implicated the defendant, MACRA.

“Plaintiff violated its broadcast license by failing to pay the license fee,” Judge Tembo said in his decision, adding that MACRA had engaged Rainbow TV during the period the station applied for renewal.

“In such circumstances, the Court is of the view that the plaintiff could not reasonably have expected the defendant to decide and communicate on the renewal of the plaintiff’s broadcasting license while the plaintiff was in breach of the royalty obligations on the current broadcasting license.

“After the revocation, the obligation to communicate the decision to renew the permit lapsed because there was nothing more to renew. The plaintiff cannot therefore legitimately expect the defendant to consider the renewal of a permit revoked.

“This renders the present application unsuitable [and] in the foregoing premises, this Court is compelled to dismiss the plaintiffs’ application for leave to seek judicial review for being unfit for further consideration at a full judicial review hearing, as contemplated in Ombudsman v Malawi Broadcasting Corporation [199] MLR 329.”

In announcing the revocation of the license last month, MACRA’s communications officer, Zadziko Mankhambo, informed all licensees in the telecommunications, broadcasting and postal sectors that non-payment of annual license was a serious violation of their licenses and that they risked having their license revoked.

He had revealed that Rainbow TV had flouted what is stipulated in the Communications Act which requires TV broadcasters to pay an annual license fee currently set at $5,000 (about K5.1 million).

“They have not done what is required of them as stipulated in the law, as such we have in effect revoked their license after failing to pay the annual fee which they last paid a year ago. six months,” Mankhambo said.

However, during a breakfast meeting MACRA had with media officials in Lilongwe last week, the president of the Malawi chapter of the Media Institute of Southern Africa (MISA), Theresa Ndanga, called on MACRA to consider revoking television and radio licenses from media that owe the regulator.

During the meeting, MACRA Director General Suleman disclosed that they were owed more than K9 billion by broadcast, telecom and postal service operators – with broadcasters accounting for around K750 million and telecom operators at around K7.5 billion – dating back to 2014. .

While acknowledging MACRA’s legal mandate and the broadcasters’ statutory obligations, Ndanga said there was still a need for her to review their position following the economic challenges facing the country which are also affecting the media sector. .

Thus, his call for the need to consider the growth of broadcasting, the commercial interests of owners and the welfare of broadcasters before resorting to revoking licenses.

She also said there was a need for MACRA to discuss with affected broadcasters how they can settle debts in installments over a period of time while proposing appropriate mechanisms to manage the payment of license fees in the future. .

While indicating the regulator would revoke more broadcast licenses, Suleiman said he was open to discussions to resolve the issue.

He argued that over the years MACRA has not been proactive in monitoring debts and that some broadcasters have failed to fulfill their legal obligation.