BY SAM ALFAN.
Communication Authority of Kenya has admitted that the satellite internet services was posing regulatory challenges across the world.
For that matter, regulatory authorities the world over are seeking the assistance of International
Telecommunication Union to come up with a framework on the regulation of the satellite internet services.
The Director General of CA David Mugonyi told the court that the regulatory challenge posed by the new technology is primarily due to the fact that the LEO satellite Internet Service Provider (ISPs) do not necessarily require an International Gateway System (“IGS”) whose infrastructure is licenced and regulated by Municipal authorities.
Further, LEO ISPs have introduced Direct to Device (D-2-D) services provision to end users thus by-passing the traditional use of Subscriber Identity Modules (SIM) cards, he said.
“By extension, the new technology in fact poses a commercial competition threat for the other traditional Terrestrial Based ISPs who have invested heavily in terrestrial infrastructure which they have deployed over many years and at great cost in order to reach end users,” CA director general told the court.
In affidavit filed in court responding a petition by Kituo Cha Sheria, Mugonyi told the court that in light of the fact that the emerging technology is preceding the development of individual country regulatory framework, many countries world over allowed the deployment of the new Satellite ISPs technology while awaiting a cross-cutting model of regulatory framework from the ITU.
He told the court that in Kenya, on 17th April 2023, Space X, the global technology company pioneering the new technology, made an application to the Authority for spectrum allocation to deploy the new technology.
“On 8th June 2023, the Authority granted Space X, locally trading as “Starlink Internet Services Kenya Limited” (“Starlink”) a Temporary Frequency Authorisation to deploy its LEO Satellite Based ISP services in the Republic of Kenya.
He added that upon deployment of the new technology by Starlink, practical competition and regulatory implications started emerging on the domestic front as commercial realities dawned on the licenced Terrestrial Based ISPS.
The Authority added that it believes that it is in light of the delopments that it received the letter dated 5th July 2024 from Safaricom.
The agency said it replied to Safaricom on 9th July 2024, noting the concerns raised and promised to revert on the issues raised.
Subsequently, two other significant licenced Terrestrial Based ISPs, Airtel and Jamii Telecom (JTL) also wrote to the Authority on 10th September and 3 September 2024, respectively, raising almost similar concerns just as the Safaricom PLC did in its impugned letter.
“The Authority, being in receipt of these concerns by licensed Terrestrial Based ISP licensees (which concerns are a global phenomenon), is in the process of developing a regulatory framework for the emerging new technology in conjunction with the ITU and other industry players to ensure a level playing field competition among all the concerned industry players in the ISP space,” CA DG further told the court.
The Authority, being in receipt of these concerns by licensed Terrestrial Based ISP licensees (which concerns are a global phenomenon), is in the process of developing a regulatory framework for the emerging new technology in conjunction with the ITU and other industry players to ensure a level playing field competition among all the concerned industry players in the ISP space.
The greatest importance to this Court is the fact that the impugned letter is but the initiation of a regulatory conversation between a licensee and the Sector Regulator and is not, in itself, a regulatory decision or action as known to law.
“I can confirm, on behalf of the Authority, that no regulatory decision has been made or regulatory action taken on the impugned letter by the Authority to warrant the Petitioner to invoke the supervisory jurisdiction of this Court either as at 4th October 2024 or as at now.
He said the letter is not a “communication” in the regulatory sense but is only correspondence between a licensee and the sector regulator expressing opinions and suggestions.
He added that the CA, that the petition has now ingeniously introduced the concept of a “dominant undertaking” thus introducing a new and distinct cause of action quite unrelated to the Petitioner’s initial cause of action which related to the regulatory framework of satellite internet service providers vis-à-vis the existing regulatory framework, and as such this will result into a misjoinder of causes of action and has the effect of meddling up the real issues for determination in the present proceedings.
