SAM ALFAN.
The Communication Authority has urged the Multimedia Tribunal to upholds the decision of the Authority as contained in its letter dated 1st August 2018 that fined Safaricom PL almost half a billion.
The authority through lawyer Wambua Kilonzo says Safaricom will not suffer any prejudice if it complies with the as contained in the letter of 1st August 2018 as the Authority is capable of refunding the penalty amount should the Appeal succeed.
The Authority wants the appeal dismissed with cost.
In a replying affidavit CA Director General Francis Wagusi, the Authority received a letter dated 25th April 2018, a complaint from Elige Communications Limited (Elige Communications) alleging that the Safaricom was blocking and rate limiting their calls on their network.
CA made the decision after GeoNet made a complaint on 22 of November 2016 over alleged interference and interruption of it services by Safaricom who GeoNet alleged was blocking its calls.
The regulator further says , the action was taken after continuous interference of other licenses by Safaricom.
” I am aware of the continued interference of other licensees’ systems without approval of the Authority constituted a breach of the terms of the Appellant’s NFP-T1 license and which warranted a regulatory sanction by the Authority”. Says Wagusi.
CA wrote to safaricom PL and the said letter of 26th April 2018, the Authority required the safaricom to respond to the allegations by both Geonet Communications and Elige Communications within 14 days from the date of the letter failure to which Authority would not hesitate to take appropriate regulatory measures.
CA through lawyer Wambua Kilonzo in response to Safaricom appeal against the authority historical penalty, says the tribunal lacks the necessary quorum for it proceedings and it is not properly constituted as required.
The Authority further said the tribunal chairperson who is Senior residence Magistrate William Okech has not met the required by the law.
They argued Kenya Information Act requires that a person to be appointed as chairperson of the tribunal shall be a person qualified for appointment as a judge of the High Court as provided by the law.
August 24 this year, Communications and Multimedia Appeals Tribunal suspended decision by Communication Authority of Kenya to fine Safaricom Limited almost half a billion shillings for failure to head the authority’s directives pending hearing and determination of the application.
According to legal documents exclusively in possession of NairobiTimez, Safaricom appealed the decision by CA to fine the telecommunication giant 449 million shillings which is the highest penalty in the history.
“The CA decision requiring the applicant (Safaricom PL) to pay the penalty of 0.2% of its annual Gross Turnover for a period ended 31 March ,2018 amounting to Kshs. 449,070,000,0 is hereby stayed pending hearing and determination of the application” ordered Tribunal Oketch Senior Resident Magistrate.
The tribunal further suspended the letter dated 1 of August , 2018 that ordered Safaricom to pay the said amount by 30 th of this month.
“Tribunal stay the decision of Communications Authority of Kenya made by a letter dated 1 of August, 2018 and reference ‘failure to heed the Authority’s directives’ pending the hearing and determination of the application” Oketch Senior Resident Magistrate.
The company filed the application under certificate of urgency through lawyer John Ohaga .
This is the highest regulatory fine in Kenya’s history.
The company argued the CA found that Safaricom was liable to pay the penalty of 0.2% of it annual gross turnover for a period ended 31 of 2018 amounting to Kshs. 449,070,000,0.
The telecommunication giant argued that, the period of the almost half a billion penalty lapses on the 30 of August this year and CA is likely to initiate proceedings for the recovery of the said amount immediately.
“Regulation 8 (7) of the Kenya Information and Communications (Dispute Regulations) Regulations, 2010 is clear that the decision of the 1 Respondent shall be binding until subsequent orders are made by the Tribunal or the determination of the appeal” said the company.
The telecommunication company claims the company will suffer substantial loss and irreparable damage if the decision is executed by CA.
In a supporting an affidavit,the head of department regulatory and public policy of Safaricom (PLC) Mercy Ndegwa, safaricom acknowledged to be the most profitable company in the country and will be ready to pay the penalty if the appeal is unsuccessful.
“The applicant is a public company and is acknowledged to be the most profitable company in Kenya and will no doubt be in position to remit the penalty without delay in the unlikely event that the appeal is unsuccessful” said Mercy in the affidavit.
She argued CA will not suffer any prejudice if the decision dated 1 August ,2018 is suspended pending hearing and determination of the appeal.
Tribunal further certified the appeal urgent and directed Safaricom PL to serve Communication Authority and Elige Communications Limited within three days of the order.
In the year 2015, Federal Communications Commission slapped AT&T with a$100 million fine, accusing the country’s second-largest cellular carrier of improperly slowing down Internet speeds for customers who had signed up for “unlimited” data plans.
