[Kictanet] Fw: [Afr-ictpol-adv] Victory! FastLane wins right to compete against Jambonet

[alice at apc.org]

> 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
>
>