[kictanet] CCK shuts down illegal broadcast transmitters

[Grace Mutung'u (Bomu)]

and  then came the court orders...on a good sunday!

2013/2/3, Grace Githaiga <ggithaiga at hotmail.com>:
>
> Finally!
> CCK has taken the right direction and should not be cowed by all the noise
> in
> the blogsphere. The law must be enforced regardless of the timing. An
> illegality is an illegality. Kindly let us not politicize the matter.
> Enforcement of this judgment does not in any way relate to SK supporting
> CORD.
> This should be seen as a pure enforcement of a broadcast requirement.
>
>
>
> Broadcast
> licences have conditions and CCK does warn against their breaching.
>  For example CCK is usually clear on power of transmitter, the radius of
> broadcast, the equipment that is approved etc. If for example you go beyond
> that radius, or use a more powerful transmitter and therefore interfere
> with
> other stations' signals, you breach the law and CCK has to come in. Further,
> in
> this case, RMS was given sufficient time to put in corrective measures.
>
>
>
> This
> court case between RMS and CCK has been going on for a while. Please read:
> http://kenyalaw.org/CaseSearch/view_preview1.php?link=70542457891338696266282
>
>
>
> Just
> to highlight a few things:
>
> CCK
> issued a public notice on May 17, 2012 where it warned of  "UNAUTHORISED USE
> OF BROADCAST FREQUENCIES"   in the Daily Nation, and
> reminded "the licensed
> frequency users that all radio frequency transmitters must be operated under
> a
> valid licence whose conditions must be adhered to. In accordance with
> the Kenya Information and
> Communications Act, Cap 411A, operation of radio services without a licence
> is an offence that
> attracts a fine of Kshs.5 million and imprisonment for a term not exceeding
> three years or both"
>
>
>
> Those operating illegal licences were given a
> 30 day notice to surrender the frequencies, failure to which CCK warned that
> it
> would take action. Several radio stations among them Neutral Digital
> Broadcasters Limited, Trans World Radio – Kenya, Real-Time Solutions
> Limited,
> Imani Radio & TV Ministries, Capital FM and other stations duly complied
> with the direction and informed CCK that they had installed band filters to
> minimise harmful interference.
>
>
>
> CCK wrote to RMS a “Notice of Violation” letter dated 3rd August
> 2012, where several non conformities were noted. CCK was concerned
> that that despite having asked RMS to correct the anomalies, no action had
> been taken. CCK further asked RMS to take corrective measures within 30
> days
> from the date of the letter to ensure that it installs "the band pass
> filters, obtain Type Approval for its transmitters, shut down unauthorised
> stations and relocate to the designated broadcast sites". RMS on different
> dates received more letters from CCK on unauthorized use
> frequencies.
>
>
>
> Needless to say, RMS did not comply and instead
> went to court (it enjoined the AG and the Minister of Information) arguing
> that it was entitled to continued use of the frequencies since the body
> envisaged by Article 34 (5) of Kenya's 2010 Constitution for licensing and
> issuing broadcaster’s frequencies was
> yet to be established. Further, RMS argued that the letters and Notice
> issued
> by CCK contravened/violated its fundamental rights and freedoms under
> Articles
> 34, 40, 47 and 48 of Kenya's Constitution and requested the court.
> Additionally, RMS wanted (14) (g) A permanent injunction restraining the 2nd
> (Minister) and
> 3rd (CCK) respondents
> or any of them from cancelling, stopping, suspending, restricting or in any
> way
> whatsoever interfering with the petitioner’s licences frequencies,
> broadcasting
> spectrums and broadcasting services.
>
>
>
> The
> courts (Justice Majanja) already re-emphasized the regulatory role of CCK
> in
> issuance of licences and frequencies on 18th January 2013.
>
>
>
> This
> is the summary of the ruling.
>
>
>
> Conclusion and disposition
>
> 62.  In summary, I find and hold that the CCK is
> entitled to exercise regulatory authority over broadcasting and other
> electronic media pursuant to the Kenya Information and
> Communications Act until such time as Parliament establishes the
> body contemplated under Article 34(5) of the
> Constitution. Thus prayers (a), (b) and (c) of the amended petition are
> dismissed.
>
> 63.   I find and hold that the letters dated 6th March
> 2012, 3rd August 2012, the Notice of Violation dated 3rd August
> 2012 and the notice issued in the Daily Nation of 17th May 2012
> are not in contravention of the petitioners rights protected by Articles
> 34, 40 and 47 of the Constitution as they
> are in the nature of notices that afford RMS to show cause why regulatory
> action should not be taken against it. As a consequence, I reject prayers
> (d),
> and (e) of the amended petition.
>
> 64.  The grant of prayers (f) and (g) of the amended
> petition would have the effect of excluding RMS from statutory regulations.
> As
> I have held, I do not think regulatory action, which entitles the RMS to
> due
> process is a violation of the Constitution nor does such action interfere
> with
> its fundamental rights and freedoms of the petitioner.
>
> 65.   In view of the findings I have made, the
> petition is dismissed. As this is a matter for the enforcement of
> fundamental
> rights and freedoms I decline to make an award for costs.
>
> 66.   I thank counsel who appeared in this matter
> for their detailed submissions.
>
> DATED and DELIVERED at NAIROBI this
> 18th day of January 2013.
>
>
>  		 	   		


-- 
Grace L.N. Mutung'u (Bomu)
Kenya
Skype: gracebomu
Twitter: @Bomu
Website: http://www.diplointernetgovernance.org/profile/GraceMutungu