Dear all,
The ISP industry in Kenya is in elation at the successful appeal against CCK's decision not to grant FastLane a license to compete against Telkom Kenya's Jambonet.
In a landmark ruling which will probably shape the future of Kenya and the wider region's communications industries, the Communications Appeals Tribunal directed that FastLane be issued the license immediately.
The most important aspect of the ruling was not the granting of the license - but rather the fact that the Tribunal stated clearly that CCK as a Commission was to ignore any policy guidelines of a specific nature coming from the Ministry as the Act was clear that CCK was to give "due regard to policy guidelines of a general nature".
This means that CCK's independence as a regulator has been re-emphasised and underlined.
Here is the story from the East African Standard.
We will be posting the ruling in it's entirety on the FastLane website in the course of the day.
Regards,
Brian longwe ISPKenya/FastLane
------------------------------------------ (From East African Standard) Jambonet rival wins appeal By Athman Amran
Communications Appeals Tribunal yesterday struck down a decision by the Communications Commission of Kenya to deny a second independent Internet service provider (ISP) an operating license.
Tribunal chairman Justice (Rtd) Majid Cockar consequently ruled that Fast Lane Limited be granted a licence to compete with Telkom Kenya's Jumbonet.
Cockar made the ruling public at Telcom House, Nairobi in the company of two members of the tribunal Dr. Meoli Kashorda and Jotham Amisi. Fast Lane, which is a conglomerate of seven ISPs, appealed to the tribunal after CCK denied it a licence claiming that Internet Backbone Service provision was subject to an exclusivity clause granted to TelKom Kenya .The company first applied for a licence to operate an Internet backbone service on December 12, 2002.
On February 11, 2003 ,Fast Lane submitted its business plan and technical description to enable CCK to process the application. But on March 4, 2004 CCK wrote to the firm communicating its decision to reject the application.
In its appeal Fast Lane, through lawyer Daniel McVicker, argued that the decision of CCK to grant an exclusive license to TelKom Kenya for the provision of Internet backbone services was without legal foundation and in breach of the Telecommunications Act. The appellant argued that there was no express provision in the Act for the granting of an exclusive licence to Telkom.The lawyer also argued that the said policy was an adoption of the statement of policy guidelines issued by the Minister for Transport and Communication.
The commission on its part argued that granting of monopoly was not prohibited by any provision of the Act.
In his judgment Cockar said the proper course for the CCK would have been to consider the exclusivity clause inserted in the approved market structure as ultra vires to the Act and proceeded to use its discretion within the parameters of the policy guidelines. "There are other legal ways of keeping national interest in the fore-front without in the process breaching the mandatory provisions of the Act," Cockar said.
-- Brian Longwe CellFon: +254 733 518744 "Difficult to see. Always in motion is the future." Yoda