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AFRIK-IT  August 2004

AFRIK-IT August 2004

Subject:

Re: 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:

Mon, 2 Aug 2004 08:33:04 +0300

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (105 lines)

 
 
Hi Nemo,

Thank you. There is opportunity for the Communications Commission to appeal
this decision at the High Court. Bu-u-u-t I'm not sure that they would want
to, since now they are free from government control, I assume they would
only appeal if they felt the need to be a "dependent" regulator ;-)

Brian


On 31/7/04 2:30 AM, "Nemo Semret" <[log in to unmask]> wrote:

> Dear Brian,
> 
> Congrats to you and your colleagues on this historic achievement. I
> think you are absolutely correct in describing it as shaping the "future
> of Kenya", not just "Kenyan communications".
> 
>         -nemo-
> 
> P.S. Is this the final level of appeal or is there a chance it could go
> to a higher court?
> 
> 
> 
> 
> Brian Longwe wrote:
> 
>>  
>>  
>> 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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