Botswana Communications Regulatory Authority

Transcription

1 BOTSWANA COMMUNICATIONS REGULATORY AUTHORITY ANNEXURE 1 CONTENT SERVICE PROVIDER LICENCE - INTERNET PROTOCOL SUBSCRIPTION TELEVISION: TERMS AND CONDITIONS Issued in terms of the Communications Regulatory Authority Act of (No. 19 of 2012) Contents PART 1: DEFINITIONS Interpretations... 3 PART 2: THE LICENCE Name of Licensee... 6 Licence Term... 6 Licence Package... 6 Commencement Date... 7 Renewal of Licence... 7 Fees... 8 PART 3: SERVICE PROVISION Quality of Service Standards Coverage Programming Programme Hook ups...10 PART 4: TECHNICAL MATTERS Technical Standards...11 Type Approval Radio communication...11 PART 4: CUSTOMER PROTECTION Service Level Agreement...12 Anti Competitive Practices...13 Tariff Regulation (Subscription Fee) PART 5: TRANSFERS AND AMMENDMENTS Transfer of Licence Ownership and Management Change of Shareholding or Information to be furnished to the Authority with regard to shareholding changes Amendments to certain documents of the Licensee Amendments to the licence conditions at the instance of the Authority Amendments to the Licence Conditions at the Request of the Licensee PART 6: RECORDS Records and Reporting...17 Records to be kept by the Licensee Submission of Records to the Authority

2 Amendments to Records kept by the Licensee...19 Production of Records...19 PART 7: COMPLAINTS AND MONITORING Complaints and Monitoring...20 PART 8: CODE OF PRACTICE PART 9: Community Standards...21 Protection of Children...21 Programme Clarification Labels Or Warning...22 Fairness, Accuracy and Impartiality in News and Information Programmes News and Information Programmes on Controversial Issues...23 Subtitling for the deaf...24 Conduct of Interviews...24 Comment Privacy...25 Paying Criminals for Information Prohibition on Party-Political Broadcasts...26 Elections Live Programmes ADVERTISING AND SPONSORSHIP...27 Community Standards, Accuracy and Fairness in Advertising...27 Scheduling of Advertising...28 Sponsorship PART 10: GENERAL CONDITIONS Botswana Preference...29 Corporate Social Investment Emergency Service, Procedures and Business Continuity Location and Address...30 Proceedings of the Authority Force Majeure Breach of the licence conditions Revocation Surrender of Licence...33 Indemnity Notices...33 Free Services Schedule 1: Define Service to Provide...34 Schedule 2: Ownership Profile (Clause 18)...35 Schedule 3: Licensee Internet Protocol Subscription Television Name (Clause 2)...36 Schedule 4: Commencement Date (Clause 5)...37 Schedule 5: Programming Format (Clause 10)

3 PART 1: DEFINITIONS 1. Interpretations 1.1. In these Licence conditions, any word to which a meaning has been assigned in the Communications Regulatory Authority Act [No.19 of 2012] shall have that meaning unless the context otherwise indicates: 1.2. Act means the Communications Regulatory Authority Act [No.19 of 2012] 1.3. Authority has the same meaning as defined in Section 2 of the Act; 1.4. Broadcasting has the same meaning as defined in Section 2 of the Act 1.5. Broadcasting Service has the same meaning as defined in Section 2 of the Act; 1.6. Channel means a single, defined television and sound programming service of a Licensee; 1.7. Children means persons under the age of (18) eighteen years; 1.8. Commencement Date means the date on which the Licensee first commences use of the broadcasting service as specified in Schedule 4; 1.9. ITU means International Telecommunication Union; Licence means this Licence, including the Licence Notice and all the Terms and Conditions, Annexures and Schedules attached to the Licence as amended from time to time; Licence Date means the date of issue of this Licence; "Licensee" means a service provider or operator licenced under the Act by the Authority; 3

4 1.13. Licence Notice means the formal notice issued to the Licensee, to which these Terms and Conditions are attached; Net Turnover has the same meaning as defined in Section 2 of the Act; Shareholders means the shareholders of the Licensee when this Licence was granted; Parental Control Mechanism means a system that allows the viewer to block out a channel or programming using a personal identification number (PIN) in order to select an appropriate level of programming for his/her family; Performance period" means the phase when the Licensee s Broadcasting Service shall be fully monitored for compliance by the Authority each day and shall be between 06:00hrs and 24:00hrs each day; Programme" in relation to a broadcasting service means visual information and sounds or a combination of visual information and a sound intended to inform, educate or entertain and includes advertising or sponsorship matter, whether or not of a commercial kind; Programme hook ups means the linking of broadcasting equipment or stations technically to transmit a special programme; Service Level Agreement means an agreement between a customer and its service provider, which specifies/stipulates amongst others, levels of availability of the service, performance and other attributes of the service. The agreement also entails penalties in the case of violation of the Service Level Agreement Service Availability Rate A percentage of time in which the licensed service is available for access by subscribers Signal includes any signs, sounds, text, images, information or data of any configuration sent, or to be sent, for conveyance by means of a licensed system; 4

5 1.23. Territory means the geographical area of Botswana. 5

6 PART 2: THE LICENCE 2. Name of Licensee 2.1. The Licensee shall operate its Subscription Internet Protocol television under the name specified in Schedule The Licensee may change its name, subject to written approval of the Authority, which shall not be unreasonably withheld. 3. Licence Term 3.1. Unless earlier revoked by the Authority, this Licence shall remain valid for a period of ten (10) years from the Licence Date. 4. Licence Package 4.1. Subject to the terms and conditions provided for in this Licence, the Licensee is hereby authorised to provide multi - channel Internet Protocol Television Subscription Service for commercial broadcasting service authorised by the Botswana Communications Regulatory Authority The rights granted in Clause 4.1 above may be exercised partially through agents of the Licensee, provided that the Licensee shall be responsible for the acts or omissions of such agents executed in the course of their duties as agents of the licensee With regard to the Licensee s relationship to any agent or contractor: The actions or omissions of an agent will not absolve the licensee from any liability in the event of any contravention of a license condition by such agent or contractors Should an agent or contractor of the Licensee commit any act or omission in violation of a condition of this Licence, the Licensee shall upon becoming aware 6

7 thereof notify the Authority and act as expeditiously as possible to remedy or mitigate any such contravention Nothing contained herein shall be construed or understood to relieve or exempt the Licensee from the obligation to comply with the provisions of this Licence, the Act, the Regulations or any other Botswana law, to the extent that they may be applicable The Licensee shall at all times observe the provisions of any applicable international treaties, such as those ITU treaties to which Botswana is a signatory to the extent that they may be applicable. 5. Commencement Date 5.1. The Commencement Date of the Internet Protocol TV Subscription Service shall be no later than the date specified in Schedule The Licensee shall pay a penalty fee to be determined by the Authority but not exceeding P for each month of delay or part thereof in providing the Internet Protocol TV Subscription Service from the Commencement Date, provided that the Licence may be revoked if the default continues for a period exceeding three (3) months The penalty incurred in terms of clause 5.2 shall be payable immediately after each month of delay upon presentation of statement by the Authority that the amount is due and payable. 6. Renewal of Licence 6.1. The Licensee may submit to the Authority an application for renewal not earlier than One year and not later than three months prior to the expiry of this Licence which shall not be unreasonably withheld The Authority shall decide on the renewal application within three (03) months of receiving the application. 7

8 6.3. The Authority may, prior to its decision to grant or refuse any application for the renewal of the Licence, request such further information, documents or explanations from the Licensee as it deems necessary In the event of considering information which may reflect adversely on the Licensee s application for renewal, the Authority shall give the Licensee a full and proper opportunity to make such written and oral representations as the Licensee may require. 7. Fees 7.1. The Annual Service Licence Fee shall be three percent (3%)/one percent (1%) of the Annual Net Operating Revenue, paid quarterly in arrears based on the Net Operating Revenue Turnover reported for each quarter. The fee will only be applicable to the regulated/licenced service In addition to the fees mentioned above, the licensee shall pay any applicable fees due under the Radio Licenses. All fees payable in respect of the Radio Licenses shall be subject to review in accordance with new radio licence fee structure that the Authority may introduce from time to time The licensee may be required to pay any amount prescribed from time to time under Regulations made in connection with the funding of operators operating a Internet Protocol TV Subscription Service and or providing services in underserved regions pursuant to the Universal Access and Service Policy The fees paid in terms of this licence shall attract Value Added Tax (VAT), which shall be paid by the Licensee 7.5. All fees are non - refundable and BOCRA reserves the right to revise them from time to time. 8

9 PART 3: SERVICE PROVISION 8. Quality of Service Standards 8.1. The Licensee shall comply with any rules, industry code of conduct and any guidelines issued from time to time by the Authority in relation to Quality of Service Standards. 9. Coverage 9.1. The Licensee shall provide the service within the territory of Botswana The licensee shall provide the authority with its office locations or agents and their respective contacts. 10. Programming The programming format shall be as outlined in Schedule If the Licensee intends to change its programming format by more than 15%, the Licensee shall apply for an amendment to these license conditions The Licensee shall ensure that the service provided has a Parental Control Mechanism and inform subscribers, upon request, on how to use it In accordance with Section 33 of the Act the Licensee shall not broadcast any material without theconsent of the copyright owner of such material. In complying with this clause, the Licensee shall keep a register of permission to broadcast material produced by other parties and such permission shall be made available for inspection on demand by the Authority 9

10 10.5. The Authority may instruct the licensee to remove a channel or channels from the multichannel bouquet if it deems the channel(s) is in contravention to license conditions or any other laws of Botswana. 11. Programme Hook ups A licensee shall be free to undertake programme hook ups subject to business agreements between them Programme hook ups agreements shall not violate applicable Copyright and Neighbouring Rights laws. 10

11 PART 4: TECHNICAL MATTERS 12. Technical Standards The Licensee shall confine its broadcasting service to the use of standards specified in ITU Recommendations or any applicable Standardisation Body All Internet Protocol TV equipment, intended for sale to the sale to the customer by the Licensee shall be type approved by the Authority in terms of the Act All outages of ten (10) minutes or more shall be reported in writing to the Authority The Licensee shall maintain equipment and keep detailed records of all major equipment repairs. The authority should be informed at one month in advance about planned repairs. 13. Type Approval The Licensee shall ensure the availability of receiving equipment and related accessories, which comply with the technical specifications issued by the Authority in the market on the commencement of the Internet Protocol TV Subscription Services. The equipment should be type approved by the Authority. 14. Radio communication The Licensee, in connection with the operation of the Licensed System, shall be entitled to use the radio frequencies assigned to it under any Radio License which remain in force at the Licence Date. Such use shall be for the respective periods, and on the terms and conditions, of the relevant Radio Licences. 11

12 14.2. The Licensee shall pay any applicable annual fees due under the Radio Licences. All fees payable in respect of the Radio Licences shall be subject to review in accordance with any new radio licence fee structures that the Authority may introduce from time to time Any breach, contravention or non-compliance with a term or a condition contained in a Radio Licence issued to the Licensee shall constitute a violation of this Licence. PART 4: CUSTOMER PROTECTION 15. Service Level Agreement The licensee shall provide its subscribers with an accessible written Service Level Agreement, which shall, inter alia, specify; The options of programming service to be provided and conditions, under which the service is supplied; The supply time for initial connection after payment and the types of maintenance service offered either directly or through an agency, the compensation and refund arrangements for subscribers which apply if the contracted service is not met and a summary of the method initiating procedures for the settlement of disputes; The minimum number and allocation of channels carried on the billed system; Information on the billing and complaints procedure which shall specify the right of the customer to complain to the Authority in the event that the customer is not satisfied with the handling of the complaint; and the address and telephone number of the licensee s business office The Licensee shall lodge with the Authority for approval any intended changes in the Service Level Agreement In the event there is any change or upgrading to be done, the Licensee shall take all reasonable steps to ensure that the existing customer is not unduly disadvantaged. 12

13 15.9. The licensee shall issue a notice to the customer through any available platform that is accessible to the customer at least 30 days in advance of any change in clauses mentioned above, stating reasons for such a change A copy of this Agreement should be presented to the Authority for consideration as Schedule 5 requires. 16. Anti Competitive Practices The Licensee shall: Not engage in any practice, or enter into any arrangement that has the object or the likely effect, of preventing, restricting or distorting competition in the establishment, or the provision of Internet Protocol Television Subscription service or any service that any other operator is licensed to provide; and Comply with any direction issued by BOCRA for the purpose of preventing any practice or arrangement that has the object or effect of preventing, restricting or distorting competition in the establishment, operation and maintenance or provision of Internet Protocol TV Subscription services. 17. Tariff Regulation (Subscription Fee) The Licensee shall submit to the Authority, in writing, a proposal in respect of subscription fees it intends to apply. In determining the subscription fees, the licensee shall follow the principle of cost orientation The Licensee shall offer the licensed services and applications to the rates no higher than the approved subscription fees The Licensee shall ensure that to a large extent, the services are sufficiently unbundled so that, the customers have diversified packages The licensee shall adhere to the tariff principles and guidelines as may be prescribed by the Authority from time to time. 13

14 PART 5: TRANSFERS AND AMMENDMENTS 18. Transfer of Licence Ownership and Management Any changes to the shareholding structure, reflected in Schedule 2, or any transfer or sale or encumbrance of any share shall be subject to the procedures for amendments set out in Clause The Licensee shall not transfer, cede, assign, pledge any right conferred in terms of this Licence or dispose of this Licence without first obtaining written approval of the Authority. 19. Change of Shareholding or Information to be furnished to the Authority with regard to shareholding changes Where the Licensee seeks the permission of the Authority to effect any change of whatever nature to the shareholding structure of the Licensee as set out in Schedule 2, whether through increasing or decreasing the shares of any shareholder of the Licensee or as a result of any arrangement between the Licensee and any other person, the Licensee must furnish the following information to the Authority; The name and address of the person to whom any shares have been or will be sold or transferred; The number and class of shares and the rights attached to such class; The name, address and designation of the person who is in a position to exercise direct or indirect control over a significant proportion of the operations of the Licensee Where the Licensee s Board of Directors is changed, the Licensee must inform the Authority within 14 (fourteen) days of such change as follows; 14

15 Any person who is in a position to veto any action taken by the Board of Directors or any of its delegates; Any person who is in a position to appoint or secure or veto the appointment of any director of the Licensee; and Any person who is in a position to give or to exercise directly or indirectly any restraint or direction in any manner over substantial issue affecting the management of the Licence Any requested change will not be unreasonably denied by the Authority. Amendments to certain documents of the Licensee The Licensee shall lodge a notice of change to the Authority prior to effecting any amendments to the following documents; Where applicable, the Shareholders Agreement of the ultimate holding Company of the Licensee Where applicable the management and technical support agreement between the licensee and any other person. 21. Amendments to the licence conditions at the instance of the Authority The Authority may amend or vary licence conditions: Provided the amendment will not cause substantial prejudice to the licensee and; To such extent as may be necessary by virtue of any bilateral, multilateral or international agreement or convention relating to Internet Protocol Subscription Television to which Botswana is a signatory Where the Authority seeks to vary or amend any licence condition, the Authority shall give notice of its intention to the licensee. 15

16 21.3. Such notice of the proposed amendment and the reason for such amendment or variation shall clearly and fully set out the reason(s) for the proposed amendment or variation Such notice shall invite the Licensee to make written representations on the proposed amendment to the Authority within such a period as the Authority may determine The Licensee shall make such representations within three months or such other period as the Authority may determine. 22. Amendments to the Licence Conditions at the Request of the Licensee The Licensee may at any time apply to the Authority to amend its licence conditions The application for such amendment shall furnish the Authority with all the relevant information and necessary documents, motivating why the proposed amendment should be granted The Authority may, if it deems it necessary or expedient, invite other Licensees make representations on the proposed amendments and to indicate to the Authority whether the proposed amendment(s), if granted, will be prejudicial to their interests The Authority may consult the Licensee prior to making its decision on the proposed amendment(s) Where such other Licensees make representations on the proposed amendments, such representations shall be delivered to the applicant Licensee on the same day as to the Authority The applicant Licensee shall be given such period, as determined by the Authority, to respond to the representations. 16

17 PART 6: RECORDS 23. Records and Reporting The Licensee shall keep separately identifiable records for transactions related to the activities contemplated in this Licence at its registered office in the territory The Licensee shall submit a comprehensive progress report to the Authority within ninety (90) days of Licensee s financial year-end or such other date as the Authority may prescribe and in a format approved by the Authority, outlining the Licensee s progress in respect of its social obligations. 24. Records to be kept by the Licensee The Licensee shall retain the following documents for the duration of the licence period, or such other period as the Authority may determine: The certificate of incorporation of the company in whose name the Internet Protocol TV Subscription Service licence is being held, and any amendments approved by the Authority; The shareholders Agreement which was contained in the application for the licence and any amendments approved by the Authority; The Financial arrangement, if any agreement was submitted in the application for the licence and any amendments approved by the Authority; 17

18 The annual audited financial statements reflecting the gross and net income of the licensee in respect of its Internet Protocol TV Subscription Service; Minutes of meetings of the Board of Directors; Resolutions of the Board of Directors meeting; Records of employees showing number of employees, positions occupied, qualifications and citizenship; Register of subscribers/customers A list of complaints received and responses to complaints by the Licensee; and Records of Service Availability Rate (SAR) of both the Customer Relationship Management (CRM) and the Subscription service SAR for the subscription service is measured at the final point of transmission The licensee shall avail at the request of the Authority; the sound or video recordings of a particular programme in a format acceptable by the Authority provided by the service for at least the last three (3) months Programme logs showing programme categories and time allocated to each category as specified in the Licence Conditions of the licensee for at least the last three (3) months; The records referred to in paragraphs to shall be kept in such manner and format as the Authority may prescribe Any records, documentation and recordings required by the Authority for regulatory purposes, the Licensee shall provide to the Authority at no costs. 25. Submission of Records to the Authority 18

19 25.1. The records set out in sub-paragraph (above) shall be submitted to the Authority within sixty (60) days after the licensee s financial year-end and annually or at such a time determined by the Authority Records referred to in paragraphs to (above) shall be submitted to the Authority in such a manner as is specified by the Authority. 26. Amendments to Records kept by the Licensee No effect shall be given to any amendment in the records or documents set out in subparagraphs to unless such amendment has been approved by the Authority Prior to any amendment to the records or documents in sub-paragraphs to taking effect, the licensee shall apply to the Authority for approval. 27. Production of Records The Licensee shall produce, on demand, or on such other date as the Authority may specify, any record or document, specified in sub-paragraph to and in paragraph 24.2 above, or such other record or document which the Authority may require. 19

20 PART 7: COMPLAINTS AND MONITORING 28. Complaints and Monitoring The Licensee shall: Provide the Authority with procedures designed to address complaints from the public about the Licensee; and, Notify the Authority of the name and contact details of the person designated by the Licensee to deal with any complaints Should the Licensee propose to: change the complaints procedures referred to in paragraph (above); or, replace the person referred to in paragraph (above), the Authority must be advised in writing, within seven (07) calendar days of the changes, of the new contact person and details, or new complaints procedure (as the case may be) In dealing with all complaints, the Licensee shall ensure that complainants are advised that they have the right to refer the complaint to the Authority if they are dissatisfied with the Licensee s response to the complaint. 20

21 PART 8: CODE OF PRACTICE 29. Community Standards The Licensee shall not broadcast content which, measured by contemporary community standards: offends against good taste or decency contains the gratuitous use of offensive language, including blasphemy; presents sexual matters in a gratuitous, explicit and offensive manner; glorifies violence or presents violence in a gratuitous and offensive manner; is likely to incite crime or lead to disorder; or, is likely to incite or perpetuate hatred against or gratuitously vilifies any person or section of the community on account of race, ethnicity, nationality, gender, sexual preference, age, disability, religion or culture. 30. Protection of Children Without prejudice to the provisions of Section 178 of the Penal Code a licensee shall, where a programme to be broadcast is not suitable to be exhibited to the children, advise or warn members of the public accordingly. This includes, but is not limited to: 21

22 offensive language; or explicit sexual or violent material, including music with violent or sexually explicit lyrics. 31. Programme Clarification Labels Or Warning The licensee shall provide audience advisories in each programme enabled In addition to verbal warning about content, a visual warning shall be displayed on the screen at the start of the programme and on all promotional material Acceptable warning symbols shall be displayed on enabled service depicting; P Prejudice L Language may offend V Contains Violence V.L Contains Violence and Strong Language S- Sexual Content may offend Acceptable classifications on age restrictions shall be used depicting; FAM General/ Family Viewing P.G. A Parental Guidance Advised Approved for viewing by persons over 13 years Approved for viewing by persons over 16 years Approved for viewing by persons over 18 years 32. Fairness, Accuracy and Impartiality in News and Information Programmes The Licensee shall report news and information accurately, fairly and impartially, News and Information shall be presented in the correct context and in a balanced manner without intentional or negligent departure from the facts, whether through: 22

23 distortion, exaggeration or misrepresentation; material omissions; or, summarising or editing The Licensee may only present as fact, matters which may reasonably be true, having regard to the source of the news or information, and facts shall be broadcast fairly with due regard to context and importance Where reports are not based on fact or are founded on opinions, suppositions, rumours or allegations, the Licensee shall present it in such a manner as to indicate clearly that this is the case Where there is reason to doubt the correctness of a report and it is practicable to verify the correctness thereof, it shall be verified. Where such verification is not practicable, the fact shall be mentioned in the report Correctness of factual errors shall be broadcast without reservation as soon as reasonably possible after the original error Corrections of errors shall be presented with such a degree of prominence and timing as may be adequate and fair so as to easily attract attention, and shall include an apology where appropriate. 33. News and Information Programmes on Controversial Issues The Licensee shall ensure that, in reporting on controversial issues of political, industrial or public importance, an appropriate range of views is reported either within a single programme or in a series of programmes which are as adjacent as reasonably possible When covering controversial issues of political, industrial or public importance during phone-in programmes, the Licensee shall endeavour to ensure that a wide range of opinions is represented over a reasonable period of time. 23

24 33.3. A person or organisation whose views have been criticised during a programme on a controversial issue of public importance shall be offered a reasonable opportunity by the licensee to reply to such criticism. Such reply shall be: given a similar degree of importance; and, broadcast during a similar timeslot as soon as reasonably possible after the original criticism For the purposes of this section, programme includes news bulletins, current affairs and information programmes, interviews, and panel and phone-in discussions. 34. Subtitling for the deaf A licensee shall ensure that at least it s News and Current Affairs programmes are subtitled for the deaf and hard for hearing. 35. Conduct of Interviews Persons who are to be interviewed by a Licensee shall be: advised of the subject of the interview; and, informed beforehand whether the interview is to be recorded or broadcast live Before conducting an interview with a child, the Licensee shall request permission from the child s parent or guardian to conduct the interview The Licensee shall exercise due sensitivity in conducting interviews with bereaved persons or survivors or witnesses of traumatic incidents. 36. Comment 24

25 36.1. A Comment, whether by the Licensee or by a person invited on air by the Licensee, shall be presented in a manner that clearly indicates that it is a comment A Comment shall be an honest expression of opinion and shall be made only on facts which are clearly stated. 37. Privacy The Licensee shall not present material which invades a person s privacy unless there are identifiable public interest reasons for doing so The Licensee shall not use information acquired without the person s consent unless the information so acquired is essential to establish the credibility and authority of a source, and where the programme for which the information is required is clearly of important public interest Subject to the law, the journalists convention in relation to the protection of sources who require confidentiality shall be respected The Licensee shall ensure that identity of a victim of a sexual offence is not divulged in any broadcast, unless the victim consents in writing to the disclosure of his or her identity Notwithstanding the provisions of paragraph 37.4 (above), Licensees shall ensure that the identity of a child victim of a sexual offence is not divulged in any broadcast under any circumstances The Licensee shall avoid gratuitous and repetitive detail in covering sexual offences. 38. Paying Criminals for Information The Licensee shall not pay persons involved in crime or persons who have been engaged in crime to obtain information unless there is compelling public interest to do so. 25

26 39. Prohibition on Party-Political Broadcasts The Licensee shall not permit party-political broadcasts under any circumstances except during an election period The Licensee shall not permit party-political adverts under any circumstances. 40. Elections Party-political broadcasts; the Licensee shall be required to air contesting party-political broadcasts, affording all contesting political parties similar opportunities Equitable treatment of political parties by Licensees; If, during an election period, the programming of any Licensee extends to the elections, political parties and issues relevant thereto, the Licensee shall provide reasonable opportunities for the discussion of conflicting views and shall treat all political parties equitably In the event of any criticism against a political party being levelled in a particular programme of any Licensee without such party having been afforded an opportunity to respond thereto in the same programme or without the view of such political party being reflected therein, the Licensee concerned shall afford such party a reasonable opportunity to reply to the criticism If, within 48 hours before the commencement of the polling period, a Licensee intends broadcasting a programme in which a particular political party is criticised, the Licensee shall afford the political party a reasonable opportunity to reply thereto in the same programme, or as soon as is reasonably practicable and before polling day. 26

27 The opportunity to reply referred to in paragraphs and (above) shall be broadcast with the same degree of prominence and, where applicable, in substantially. 41. Live Programmes The Licensee shall Be technically equipped in handling programmes so as to avoid broadcasting obscene and undesirable comments from participants, callers and audiences Ensure that contributors and participants to a programmes are treated fairly without discrimination or denigration; and Ensure that they abide by the provisions of the Copyrights and Neighbouring Rights Act, 2000 [No.8 of 2000] PART 9:ADVERTISING AND SPONSORSHIP 42. Community Standards, Accuracy and Fairness in Advertising The Licensee shall ensure that broadcast advertisements: are lawful, decent, honest and truthful; and, conform to the principles of fair competition in business The Licensee shall ensure that advertisements do not contain any descriptions; claims of other material which might, directly or by implication, mislead about the product or service advertised or about its suitability for the purpose recommended. 27

28 42.3. Before accepting advertisements, licensees shall be satisfied that any descriptions and claims have been adequately substantiated by the advertiser The Licensee shall ensure that advertisements do not unfairly attack or discredit other products, advertisers or advertisements directly or by implication The Licensee shall not unreasonably discriminate against or in favour of any particular advertiser. 43. Scheduling of Advertising Advertising breaks must be clearly distinguishable from programming When presenters read advertisements, a clear distinction should be made between the programming material and the advertisements which they deliver The Licensee shall exercise responsible judgement when scheduling categories of advertisement which may be unsuitable for children during periods when large numbers of children may be expected to be watching in line with the watershed period. 44. Sponsorship News bulletins shall not be sponsored but the licensee may accept sponsorship for weather, traffic, financial, technology, health and entertainment reports Subject to paragraph 44.1 (above) any programme may be sponsored provided that the licensee retains ultimate editorial control of the programme The Licensee shall ensure that sponsorship of information programmes does not compromise the impartiality and accuracy of the content of the programme The Licensee shall ensure that sponsors do not advertise or endorse their goods and services within the editorial content of the programme Sponsor funding and contribution to programmes shall be clearly acknowledged immediately before and after the programme and any link between the programme s subject matter and the sponsor s commercial activities must be made clear. 28

29 44.6. Licensees shall not broadcast any programmes which have been sponsored by a political party The Licensee shall not unreasonably discriminate against or in favour or any particular sponsor. PART 10: GENERAL CONDITIONS 45. Botswana Preference In the implementation of its operations under the Licence, the Licensee shall, to the maximum extent possible and in a manner consistent with the safety, efficiency and the economy of its operations, give preference to: materials and products of Botswana; and service agencies located in Botswana and owned by Botswana citizens or bodies corporate established under applicable Botswana company laws which are majority owned by Botswana citizens In all phases of its operations under this Licence, the Licensee shall give preference in its employment practices to Botswana citizens, to the maximum extent possible and in a manner, consistent with the safety, efficiency and economy of its operations The Licensee shall endeavour to train Botswana citizen employees and enable such citizens to qualify for advancement in all areas of the Licensee s operations under this Licence. 46. Corporate Social Investment The Licensee shall, at its own discretion, expend part of its Annual Net Turnover on developmental activities comprising the Social Service Programme which are directly related to the broadcasting industry or information society in Botswana including, without being limited to, education and training projects, bursary schemes and the supply of 29

30 technology, provided that such developmental activities are not directly related to the Licensee s own operation or employees. Nothing contained in this clause shall prevent the Licensee from deriving subsequent or indirect benefit from any such developmental activities The Licensee shall present a written report to the Authority at the end of each financial year on the activities stated at paragraph 46.1 above. 47. Emergency Service, Procedures and Business Continuity The Licensee shall provide an emergency service alone or in conjunction with any other person by means of making free of charge emergency broadcasts or notifications by national or local emergency organisations which shall include the police and security forces, fire brigade and ambulance services, medical and veterinarian services, environmental/national disaster agencies, whether or not such emergency organisations are owned and managed on a private or public basis and may include any additional emergency services which the Licensee may provide in its own discretion Within three (3) months of the Licence Date, the Licensee shall set out procedures and appoint contact persons in order to co-ordinate with the Botswana Defence Force, the National Disaster Preparedness Committee, and any other relevant bodies in times of war, national emergency, disaster or the declaration of a state of emergency. The procedures and name of the contact person should be submitted to the Authority The licensee shall ensure that the licensed service is available all times and shall put in place an adequate Business continuity plan to limit service interruptions for both subscription and availability of the enabled service in cases of disaster affecting its systems or premises. 48. Location and Address The location of the Licensee s head office shall be situated within Botswana. 30

31 48.2. The location of the up-link earth station should be within the territory and the licensee shall apply to the Authority if the uplink earth station is to be relocated outside the territory The Licence notice shall be placed in a conspicuous place at the Licensee s registered office at all times The Licensee s registered office for the purposes of this Licence shall be described on the Licence Notice, which shall not be changed without providing written notice to the Authority. 49. Proceedings of the Authority The Licensee shall at all times ensure that, in any hearing, investigation or amendment application in terms of these licence conditions, it cooperates fully with the Authority by complying timeously with all requests for information and/or documents and any direction made by the Authority in connection with the hearing, investigation or amendment application. 50. Force Majeure The Licensee shall not be held in breach of this Licence if such breach arises from Force Majeure event and its obligations in terms hereof shall be suspended accordingly. For the purposes of this clause Force Majeure shall mean any legislation or regulation of the Government of Botswana, disaster, act of God, act of war, insurrection, sabotage, labour disputes or transportation/customs embargoes which are beyond the control of the Licensee and are not attributable to any fault on the part of the Licensee The Licensee shall advise the Authority as soon as reasonably practicable upon becoming aware of the existence of any Force Majeure event or circumstances likely to lead to such event The Licensee shall bear the onus of proving the existence of a Force Majeure event Licensee shall abide by all such complaints, monitoring and Investigation procedures, as are initiated by the Authority from time to time by, inter alia: 31

32 Submitting, on request, any recordings or documentation required by the Authority for regulatory purposes at no cost Responding to queries from the Authority relating to allegations of noncompliance with licence conditions, regulations or the Act; and, Submitting, where requested, written reports or written responses to allegations of non-compliance with licence conditions, regulations or the Act; and, Appearing, when requested, before the Authority during any adjudication of a complaint or investigation inquiry into alleged non-compliance with licence conditions, regulations or the Act Whenever the Authority intends to hold any investigation into a suspected breach of these licence conditions or investigate any complaint relating to the Licensee s failure or refusal to deal with any complaint or the unsatisfactory handling of any complaint by a member of the public, the Authority shall adhere to BOCRA Enforcement Guidelines. 51. Breach of the licence conditions In the event of any breach or failure of compliance with these licence conditions the BOCRA Enforcement Guidelines shall apply. 52. Revocation Without limiting the general application of Section 86 of the Act, the Licence may be revoked if, amongst others: The Licensee fails to achieve or sustain the minimum obligations in this Licence at any time after the Licence Date of this Licence; or, The shareholding structure of the Licensee is changed without the Authority s written approval; or, 32

33 The Licensee fails to pay any fees or penalty referred to in this Licence; or, The Licensee commits or allows to be committed any violations of the terms and conditions of this Licence, including any omission in terms thereof and fails to remedy same after receiving notice by the Authority to do so within the period specified in such notice, which shall not be less than fourteen (14) days; or, The Licensee is declared bankrupt or insolvent 53. Surrender of Licence In an instance where the Licensee wishes to surrender their licence to the Authority, the licensee shall inform the Authority in writing. 54. Indemnity No matter or thing done or omitted to be done by a member of the Board or Staff of the Authority shall, if the matter or thing is done or omitted to be done bona fide in the course of the operations of the Board/Authority, render a member or staff personally liable to an action, claim or demand The Licensee indemnifies the Authority against any claims for liability or damage which may occur as result of the Licensee complying with any condition under this Licence or direction given by the Authority in terms of the Act. 55. Notices All written notices to the Authority shall be marked for the attention of the Chief Executive and shall be hand delivered to: The Private Bag Independence Avenue Gaborone Botswana 33

34 55.2. Or to such other address as the Authority may specify in writing to the Licensee. 56. Free Services The Licensee shall provide free of charge, its broadcast services to the Authority at its official premises for monitoring purposes. CONFIDENTIAL Schedule 1: Define Service to Provide 57. A provision of Service operated to deliver a subscription based Digital Television through an internet protocol technology via a broadband connection. 34

35 Schedule 2: Ownership Profile (Clause 18) 58. This Schedule sets out all the shareholders of the Licensee and no shareholder may increase or reduce its shareholding without the written approval of the Authority. No sale or transfer of shares to any media concern shall be effected without the prior written approval by the Authority. 59. This Schedule reflects the ownership structure of the Licensee at the time of the granting of this licence. 60. The shareholding of the Licensee shall be as follows: Shareholder Nationality Percentage of Shares 35

36 Schedule 3:Licensee Internet Protocol Subscription Television Name (Clause 2) 61. The Licensee shall operate its Internet Protocol TV Subscription Service under the name. 36

37 Schedule 4:Commencement Date (Clause 5) 62. The Commencement Date of the Internet Protocol Subscription Television be no later than six (06) months following the Licence Date or such other date as the Authority may approve in writing. 63. Failure to commence operations which will result in licence revocation will be given a cooling off period of two (02) years before submission of Internet Protocol TV Subscription Service licence application. 37

38 Schedule 5: Programming Format (Clause 10) 64. The Licensee is authorised to provide Internet Protocol TV Subscriptions Services which will be provided through subscription access to different channels which may include but not limited to educational, entertainment, sports, news and information channels. 65. The Licensee shall notify the Authority 30 days prior to addition of any new channels to the subscription service 66. The notification shall include; The name of the channel The genre of the channel A statement indicating broadcasting rights for the territory of Botswana has been cleared. 67. The Licensee s office hours shall operate for a minimum of eight (8) hours with a call centre operating for at least 12 hours during week, and for at least 8 hours on the weekends and public holidays. 68. The Licensee is required to submit to the Authority the proposed Service Level Agreement for approval, which shall not be unreasonably denied. The Agreement should be submitted to the Authority within a period of ninety (90) days from the Licence Date. 38

39 39