Ephraim Percy Kenyanito

International Trade, Technology, Media & Telecommunications Law.

Seven steps to reform the CA

This article was originally published at page 21 of the Star Newspaper of October 1, 2018

The past month has been eventful for the Communications Authority of Kenya (CA), with the election of John Omo as the secretary general of the African Telecommunications Union. He will represent the CA and the government at the union. Kenya will therefore lead all the regulators in Africa through the regional organisation and coordinate the continent’s engagement with international telecom partners.

Additionally, Kenya, through the communications regulator, recently bagged three top positions within the Universal Postal Union, which is a UN agency dealing with postal operations.

Three weeks ago, the CA launched a new system allowing customers to monitor the quality of service of telecommunication providers and contribute to the annual report prepared by the authority. The previous system did not take into account customer feedback as much and was disputed by some of the telcom providers who had been previously fined.

Additionally, the regulator, together with the Central Bank of Kenya (CBK), have been cracking the whip on banks, mobile money firms and other operators to file reports within 24 hours of any cyber-attack in addition to a quarterly incident reports detailing procedures followed in handling the incidents.

The above actions are laudable but the CA needs to do more to remain a leader among peers in Africa and the world. I propose that the CA work on seven key areas to ensure that it is effective and independent, and that it meets its mandate of enabling access to affordable, reliable, and efficient telecommunications services.

First, the CA needs to reassert its independence. There have been damning allegations of interference from the parent ministry and other actors. The CA should push to amend the law to reduce the number of Principal Secretaries on its board.

Second, although the country successfully migrated from analogue to digital broadcasting, not enough investment has been made into enhancing local content for the platforms. There is dire need for the CA to create incentives for more local content.

Third, in April 2017 the CA granted $8.3 million (Sh838 million) from the Universal Service Fund (USF) to three companies—Liquid Telecom, Xtranet Communications and Commcarrier Satellite Services—to connect 896 schools at a cost of Sh836 million. Going forward, the CA needs to ensure sustainability of these projects and proper use of the USF. This will bring more women and elderly people, especially in the rural areas, into the digital age as these two demographic categories have been historically under-served.

Fourth, between 2014 and 2018 telcos have paid a total fine more than Sh500 million for poor quality service, which equates to 0.15 per cent of the gross turnover of each of the companies. This has been an effort to improve quality of services offered by telcos. Going forward, the CA needs to device new incentives to improve quality of service and increase universal access. The regulator should also find ways to encourage further multi-stakeholder discussion around the 2017 Telecommunication Competition Market Study in Kenya report carried out by London-based Analysys Mason Limited.

Fifth, the CA needs to work with all stakeholders in the industry to fast track the draft data protection bills. Infact, the regulator needs to support effective public participants and all engagement with relevant state organs whenever new regulatory issues are being discussed and relevant policies developed.

Sixth, The regulator must also endeavour to enhance transparency around frequency spectrum management and should allow for more public participation during the awarding of prime frequencies for broadcasting or telecommunications.

Seventh, going forward, the CA needs to stick to its constitutional mandate by avoiding regulatory overreach. An example of this overreach are 2017 Guidelines for the Prevention of Dissemination of Undesirable Bulk Political SMS and Social Media Content which sought to regulate internet users not licensed by the authority. This was despite the High Court decision in Geoffrey Andare v Attorney General & 2 others holding that the Kenya Information and Communication Act (KICA) was not intended to regulate bloggers or individual Internet users.

The Communications Authority is better grounded as an institution than it was before the legislative transformation that saw it shed the “Communications Commission of Kenya” identity. To safeguard investor and consumer confidence, the CA must ensure that it improves on regulatory independence, digital migration, affordable access, consumer protection, public participation and transparency.

This article was originally published at page 21 of the Star Newspaper of October 1, 2018

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