BY SAM ALFAN.
Communication Authority of Kenya (CA) wants a case filled by a lobby group over the entrance of Starlink into the Kenyan market by providing satellite internet services, dismissed.
The telecommunications regulator said the case filed by Kituo Cha Sheria dismissed saying it has no basis.
The regulator says in reply to the case that the petition is a “proxy litigation” or in the alternative “surrogacy proceedings” brought on behalf of an identifiable company with vested commercial interests in the sector.
CA argues that the petition is neither “Public Interest Litigation” nor “Consumer Right Protection Litigation” but a proxy suit “hiding” its real owners.
According to CA, any issuance of an order was unnecessary and serves no practical purpose since this subject technology is evolving daily and its existence is a present reality.
The industry regulator said courts do not issue orders for academic purposes.
The lobby group moved to court to stop Safaricom PLC and CA from taking any actions that may be prejudicial to the consumers of SpaceX’s Starlink.
The entrance of the firm which is owned by American billionaire Elon Musk has rattled the industry wit Safaricom writing to the regulator.
Musk has been named by American president-elect Donald Trump in the Department of Government Efficiency.
However, CA through veteran lawyer Wambua Kilonzo argued that it is not in the province of the Court to issue the declaratory order sought that relates to correspondence between a licencee and regulator.
Kilonzo said no regulatory decision has been made or taken for the matter to be taken to court.
“The issuance of any such injunction can only materialize once a regulatory decision is made by the Communication Authority on the impugned letter and not before,” Kilonzo said.
According to regulator, the issuance of such a declaration sought by Kituo Cha Sheria in the absence of emergence of actual or a factual dispute between parties would be an overstretch of the court’s supervisory jurisdiction.
“The issuance of the sought declaratory order would offend the Doctrine of Exhaustion since a declaration of predatory practices is a jurisdiction assigned to other judicial bodies before invoking the jurisdiction of this Honourable Court under the various ordinances regulating competition in the communications sector,” said Kilonzo.
CA added that the letter by Safaricom was neither a regulatory decision nor is Safaricom a sector regulator capable of making any regulatory decision in the communications sector.
CA says it shall provide evidence to the court that other industry players in the terrestrial based internet service providers have equally raised similar concerns about the emerging satellite technologies and services just like Safaricom.
“It is an undisputed fact, as the communications sector regulator, it has neither responded to, made any decision nor taken any regulatory action in response to the impugned letter or to that of any other industry player, in relation to the subject matter of the present proceedings,” adds CA.
Kilonzo submitted that in the absence of any regulatory action or response by the CA in relation to the complained letter, the jurisdiction of the court has been invoked prematurely.
“In the circumstances, this Court should decline to entertain these proceedings in limine until such a time that a regulatory decision shall be made by the 2nd Respondent and that decision is taken through the dispute resolution mechanisms provided for under the Kenya Information and Communications Act, 1998(“KICA”) prior to the invocation of the jurisdiction of this Court by Kituo Cha Sheria,” assets CA.
CA adds the lobby group ingeniously introduced the concept of a “dominant undertaking” thus introducing a new and distinct cause of action quite unrelated to its initial cause of action which related to the regulatory framework of satellite internet service providers and the existing regulatory framework.
“The Petitioner has no locus standi to make a determination that CA’s impugned letter “amounts to abuse of a dominant position”.
The regulator accused lobby group of an advancement of the commercial interests of Starlink and not the position of a disinterested Public Interest Litigant as Kituo Cha Sheria attempts to falsely present itself to be in the proceedings.
