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AFRIK-IT  July 2004

AFRIK-IT July 2004

Subject:

Victory! FastLane wins battle to compete against Jambonet

From:

Brian Longwe <[log in to unmask]>

Reply-To:

African Network of IT Experts and Professionals (ANITEP) List

Date:

Fri, 30 Jul 2004 09:20:22 +0300

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (73 lines)

 
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 Kenyašs  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.

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