The Act Provides For Regulation And Licensing Of ICT Services By Establishing The Communications Authority Of Kenya (CA) As The Sector Regulator To Promote Development And Innovation In ICT.
It Broadly Regulates:
This part establishes the COMMUNICATIONS AUTHORITY.
Section 5A protects the Communications Authority ’s independence to ensure it is free from interference by government, politics & commercial interests.
The Authority is to be guided only by
Management of the Communications Authority is provided for under Sections 6-23 of the Act. Executive authority vests in the Board of Directors led by the Chairperson while day to day management is by the Director General (DG) who is the CEO and his/her staff.
A Board Member must have a Bachelor’s degree in a relevant field and 5 years’ experience in ICT (10 years for the Chairperson).
Board Member and Chairman are disqualified if they ;
Board members are appointed for a term of 3 years (renewable once) using the procedure in Section 6B by a Permanent Selection Panel of Stakeholders & are removed from office is provided under Section 6D.
The DG is competitively appointed by the Board for a 4 year term renewable once.
The Communications Authority under Section 23 should ensure telecommunication services are provided to satisfy public demand, including emergency services & public payphones. It also should:
Communications Authority licenses the telecommunications companies.
The Communications Authority in consultation with the Cabinet Secretary has power to make regulations for licensing including;
Obligation of Telecommunication Companies
Telecommunications companies must
Offences by telecommunication companies
Note that Section 29 which provided for the offence of improper use of a system to send offensive, indecent, obscene annoying or menacing messages was repealed by the High Court in Geoffrey Andare v AG  eKLR.
Sections 35 & 36 provide for the licensing of radio stations & apparatus before use.
Types of Licenses
The Cabinet Secretary in consultation with the Communications Authority to issue regulations on radio communication giving:
PART IV (A) – BROADCASTING SERVICES
Section 46A gives the following functions of the Communications Authority in regulating broadcasting:
Types of Licenses
Section 46C requires all broadcasters to be licensed by Communication Authority failure to which they shall be liable to a fine of up to one million shillings, or imprisonment for up to three years.
Section 46C The section allows Communication Authority to attach conditions such as;
Section 46D however disqualifies the following form being licensed;
Section 46H establishes the Programme Code. It requires the CA to set and enforce standards for the time and manner of programmes to be broadcast. It also allows broadcasters, through membership to an association supervised by CA, to create & administer their own programming code.
Regulations on broadcasting can be made by the Cabinet Secretary, in consultation with the Communications Authority.
Complaints by Audience
Section 46L each broadcaster is required to operate a complaints procedure for persons aggrieved by any broadcast.
Once such procedure is exhausted without remedy, an appeal may be proffered to the Communications Authority and further appeal may lie to the Communications and Multimedia Appeals Tribunal.
Postal systems and services in Kenya must be licensed under this Part. The Communications Authority is required to:
Types of Licenses
Section 52 statutory conditions of license include;
Public postal licensee are in addition required to;
Regulations are made by CA under this Part to deal with:
This part provides for licensing procedures.
It allows for an (at least) 30 day gazettement period during which the public can comment/object to proposed licences. The Communications Authority must consider these inputs in making the licensing decision.
Section 79 requires written communication of Communications Authority decision to an applicant and allows him to appeal to the Communications and Multimedia Appeals Tribunal.
Section 83A enforces license conditions by providing a Kshs 500,000/- penalty for noncompliance with conditions
PART VI - A – ELECTRONIC TRANSACTIONS & CYBER SECURITY
Section 83B states that provisions on electronic transactions do not apply to writing or signatures required by law in making wills; negotiable instruments; &/or documents of title.
Functions of communications Authority
The Communications Authority is in charge of promoting e-commerce by ensuring;
in electronic signatures, electronic records, writing and with removing e-commerce barriers.
Communications Authority is also required to manage critical internet resources and develop a cyber-security framework.
A license is required under Section 83D to;
Recognition of Electronic Records
Section 83G provides for legal recognition of electronic records if it can be assured that they are accessible for future reference and they are of high integrity.
Electronic contracts can be made under Section 83J.
This allows valid contracts by means of electronic messages and also signing of messages & documents using legal advanced electronic signatures under the relevant regulations. Government agencies must also use electronic records and signatures.
PART VI-B – UNIVERSAL SERVICE FUND (USF)
Section 84J establishes the Universal Service Fund to support widespread access to ICT in Kenya, The fund is to support capacity building and promote innovation in ICT.
The Universal Service Fund is funded from;
Section 84L , Anyone can apply for a loan or grant from the Universal Service Fund.
Regulations on the USF are made under Section 84P on;
PART VI-C – FAIR COMPETITION AND EQUAL TREATMENT
This part provides for ex-ante (before the fact) regulation of competition in ICT.
The Communications Authority is supposed to promote develop and enforce fair competition and equality of treatment among telecommunication companies.
Section 84Q generally prohibits; anti-competitive behaviour, that is, licensees must not engage in activities, which have, intend to or are likely to unfairly prevent, restrict or distort competition.
Section 84S states that unfair competition includes:
Power to Investigate
The Communications Authority can use powers under Section 84T to investigate any licensee, either by itself or on receiving complaints, for breach of fair competition or equal access.
It must however notify in writing that it is investigating a telecommunications company and explain reasons for suspicion and any information needed from the telco.
The licensee is then allowed to make its case to the Communications Authority within 30 days.
Penalties for offences
If found guilty by the Communications Authority, it can order the telecommunications company to:
Anyone can appeal to the Communications and Multimedia Appeals Tribunal from a decision of Communications Authority.
Regulations on Competition
The Communications Authority also creates regulations on competition.
Section 84W(4) allows the Communications Authority declare a Telecommunications Company dominant after considering (for example) whether it has market share of more than 50% and whether it has significant market power. If it is declared dominant, the firm must file with Communications Authority,
SECOND SCHEDULE: THE APPEALS TRIBUNAL [Under Section 102.]
Section 102 as read with the Second Schedule establishes the Appeals Tribunal to arbitrate disputes between the parties under this Act.
It consists of;
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