[kictanet] CCK shuts down illegal broadcast transmitters

Mon Feb 4 11:50:58 EAT 2013

Wambua,

I wish CCK could act with the same speed on other issues, so we see the consistency!

Edith

From: kictanet [mailto:kictanet-bounces+eadera=idrc.ca at lists.kictanet.or.ke] On Behalf Of Wambua, Christopher
Sent: February 4, 2013 11:46 AM
To: Edith Adera
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] CCK shuts down illegal broadcast transmitters

Paul,

The transmitters that we switched off were using frequencies that were acquired illegally a few months ago. We issued a 30-day notice regarding the self-appropriated frequencies on 3rd December 2012, requesting the affected broadcaster to cease operating the illegal transmitters. We therefore acted after the expiry of the notice.

 The other frequencies acquired in the same manner between 2008 and 2012 are awaiting judicial adjudication, and therefore have not been switched off.

The issue of timing is in my view misplaced. The law is supposed to be observed and implemented all the time. State agencies cannot suspend doing their work because of elections.  CCK is simply executing its mandate Bwana Roy.

Wambua

From: kictanet [mailto:kictanet-bounces+wambua=cck.go.ke at lists.kictanet.or.ke]<mailto:[mailto:kictanet-bounces+wambua=cck.go.ke at lists.kictanet.or.ke]> On Behalf Of Paul Roy
Sent: Monday, February 04, 2013 11:09 AM
To: Wambua, Christopher
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] CCK shuts down illegal broadcast transmitters

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<mailto: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<tel:%2B230%20403%2051%2000>
Head, Communications and PR, AFRINIC           Fax:  +230 466 67 58<tel:%2B230%C2%A0466%2067%2058>
george at afrinic.net<mailto:george at afrinic.net> - www.afrinic.net<http://www.afrinic.net/>

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On Feb 3, 2013, at 11:46 PM, "Grace Mutung'u (Bomu)" <nmutungu at gmail.com<mailto:nmutungu at gmail.com>> wrote:

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

2013/2/3, Grace Githaiga <ggithaiga at hotmail.com<mailto: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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--
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