[kictanet] CCK shuts down illegal broadcast transmitters

Mon Feb 4 11:09:07 EAT 2013

Politics politics and more politics. It took CCK over 5 years to realize
that RMS was using illegal frequencies? Surely CCK had a political motive
to act now especially around the election time. If RMS has been operating
illegal frequencies for all this time, then someone at CCK needs to answer
some questions and step aside for investigations.

On Mon, Feb 4, 2013 at 10:44 AM, George Nyabuga <george at afrinic.net> wrote:

> I find it funny that people are reading 'politics' here when it is clear
> that Royal Media Services had clearly broken the law, 'grabbed' frequencies
> and acted with 'impunity'. Although I am a great supporter of the freedom
> of the media, and right to information, CCK acted within the law by
> shutting down the transmitters. I also find it odd that Justice David
> Majanja issued the order restraining the Communications Commission of
> Kenya from interfering with 18transmitters on Sunday. I hope such court
> services can be extended to the 'common people' who continue to suffer
> injustice. Perhaps CCK can also tell us how many 'legitimate' frequencies
> Royal Media Services has besides  62 FM ones( is this figure correct) it
> reportedly 'hoards'. Why does Royal Media Services think it's above the
> law? I find it absolutely ludicrous that this can be allowed to continue,
> and that some (especially (even senior) politicians) think the shut down is
> politically motivated.
>
>
> Dr George Nyabuga                                                 Tel:   +230
> 403 51 00
> Head, Communications and PR, AFRINIC           Fax:  +230 466 67 58
> george at afrinic.net - www.afrinic.net
>
>
> ----------------------------------------------------------------------------------------------------
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> 2013
>
> ----------------------------------------------------------------------------------------------------
>
> On Feb 3, 2013, at 11:46 PM, "Grace Mutung'u (Bomu)" <nmutungu at gmail.com>
> wrote:
>
> 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
>
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> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
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-- 
"Change is slow and gradual. It requires hardwork, a bit of
luck, a fair amount of self-sacrifice and a lot of patience."

Roy.
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