BY SAM ALFAN.
The Communication and Multimedia Tribunal has been urged to dismiss the appeal by Safaricom challenging the regulator’s decision to lower call rates.
Submitting before the tribunal, Consumers Federation of Kenya, Airtel Networks Kenya ltd, Telkom Kenya ltd and Jamii Telecommunication ltd said Safaricom’s appeal is an abuse of the court process.
The telcos argue that Safaricom’s appeal is largely hinged on commercial interests and the Tribunal should consider the sensitivities and public interests involved and reject the case.
According to Cofek, Safaricom is neither justified nor has the moral authority to oppose reduced Mobile Termination Rate (MTR) charges, which is long overdue as per the initial glide-path announced by CA.
Cofek said the decision by the regulator was justified and will benefit the members of the public generally and consumers of telecommunication services in particular.
The lobby further told the Tribunal that the public and consumers are currently facing various economic challenges and will continue to suffer more if the appeal is allowed.
The tribunal heard that most consumers are struggling to meet basic amenities for their families such as food, housing, healthcare, school and college fees, clothing, fuel, airtime, transport among others.
In its documents, Cofek added that CA conducted public participation prior to making the decision and Safaricom has not disputed it.
Cofek added that contrary to unfounded assertions by the Safaricom, a lower MTR does not automatically result in losses for the giant telco especially when the same is not juxtaposed against guaranteed higher volume of scale of cheaper calls.
The consumer body said that CA has a sacrosanct legal duty and called to regulate Safaricom as a measure of protecting consumers and other interested parties who stand to gain from long overdue MTR glide path that has stagnated for far too long.
Airtel through the company legal officer Lillian Mugo told the Tribunal that the Safaricom appeal is aimed at sustaining Safaricom’s position as a de-facto dominant telecommunications service provider and protecting its financial interests which it derives and enjoys on account of the said dominance.
Airtel added that Safaricom has approximately 41 million subscribers out of a total of approximately 64 million subscribers in the country, hence controlling about 64% of the Kenya telecom market and by virtue of the said control, it enjoys significant market power.
“The playing field in the telecom market in Kenya has been quite uneven. Despite Safaricom enjoying over 60% of the market share in the industry (ITU recommends dominance threshold at 50% of the market which is also the threshold set in section 84W of the Kenya communication Act), CA has failed to declare it as a dominant operator,” said Airtel.
Airtel added that a declaration of a dominance position would address the issue of unfair competition as provided for under the Act and regulations.
Telkom Kenya through the head of Public Policy and Regulatory affairs Stellar Wawira told the Tribunal that neither they nor Safaricom can dictate to CA the methodology that it should apply when carrying out its statutory mandate to review the MTRs and FTRs.
Telkom added that CA is empowered to regulate and review the MTRs and FTRs and in so doing, it is required to act independently and it is not subject to direction or control by any person.
“Telkom’s position on the CA’s determination is that the same was validly arrived at and is an appropriate interim measure pending the determination of MTRs and FTRs on the basis of a detailed network cost study that would be undertaken using the LRIC methodology “, said Telkom.
The company dismissed Safaricom claims that CA’s determination has the effect of breaching its right to property. While dismissing Safaricom claim, Telkom said CA determination in revising the MTRs and FTRs was grounded in legitimate and recognized MTRs and FTRs review methodology.
