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I can break the news that the battle to pump hardcore pornography over South Africa's TV airwaves got even more complicated as the high court case heard today of South Africa's broadcasting regulator - seeking an urgent court interdict against the pay TV operator TopTV - will only be decided upon by the court on Wednesday.
The Independent Communications Authority of South Africa (Icasa) applied for an urgent court interdict which was heard on Friday in the South Gauteng High Court - a case which I can tell you went for several hours and only ended late Friday evening.
At issue: The regulator wants TopTV to stop from launching its new stand-alone pornographic package of hardcore 24 hour pornographic TV channels - Private Spice, Adult XXX and Playboy Europe - which TopTV now intends to launch on 20 January according to its affadavit.
Despite reputational damage and having no approval certificate from Icasa (who must still hold a public hearing on the matter and after that make a decision) TopTV is adamant on launching its new pornographic channel set.
TopTV's porn plan which has been making international news has meanwhile been met with resistance from TopTV subscribers, the South African public which includes South African Christian Muslim and Hindu faith-based groups, and organisations such as the Film and Publication Board (FPB).
TopTV planned to launch its porn package on 20 December as it told TopTV subscribers in a letter at the end of 2011; then moved the date to 20 January.
The channels Private Spice, Adult XXX and Playboy Europe are provided by Playboy UK/Benelux Limited. TopTV which signed carriage agreements in 2011 with them, says it needs to launch and start broadcasting the porn package due to contractual time stipulations made with the content providers or lose money. TopTV plans to make the three TV channels available at a combined additional price of R199 per month in a separate subscription requiring an additional PIN code.
Icasa argued that TopTV can't launch any TV channels until the regulatory process, which Icasa is obliged to carry out, has been completed and then only if permission is granted. TopTV argued that Icasa has no basis to bring an urgent interdict since the pay TV operator believes that it has automatic approval to start broadcasting porn.
TopTV wants to launch the porn channels without an approval certificate from Icasa, saying it has the right to do so since it applied for the porn package on 13 September and that 60 days had lapsed since the application which gave the pay TV operator automatic approval by 13 November 2011.
The ''application for authorisation for channels'' was first published in the Government Gazette on 17 November. That gave the public and stakeholders two weeks to comment after which Icasa can then at its own discretion call for a date for a public hearing.
Further complicating the matter: Besides the court case and urgent court interdict (of which a court decision will only be made on Wednesday) is the fact that the normal regulatory process for TopTV's television porn application is still actually underway. The public hearing on TopTV's application to broadcasting the tripple porn play package will take place this coming Monday 16 January at 10:00 at Icasa's office in Sandton which anyone can attend.
Here's a breakdown of the latest dates and what will be happening - basically two parallel processes about the same issue, now running concurrently:
16 January (Monday): Public hearing at Icasa in Sandton on TopTV's porn application. After this Icasa must still make a decision about whether to approve or deny the application in its own time.
18 January (Wednesday): A separate process: A decision by the South Gauteng High Court to either grant or refuse Icasa's urgent court interdict. If granted it will block TopTV and make the pay TV operator revert to Icasa's timeframe for possible channel approval. If refused TopTV will go ahead without an approval certificate from Icasa and launch its porn package as soon as possible.
20 January (Friday): The date that TopTV now wants to launch Adult XXX, Private Spice and Playboy Europe as three pornographic channels in a new stand-alone, separate subscription package, irrespective of whether it has clearance from Icasa or not.
ALSO READ: Analysis - The fight for the heart of TopTV: As it pushes for porn the South African pay TV operator arrives at a crossroads.
ALSO READ: Analysis - TopTV's porn plans: A deeper look at the bigger problem with the South African pay TV platform.
