Ministry to review contested regulations in three weeks
BY JAMES RATEMO
The Kenya Government has stopped enforcement of the contentious regulations recently published by the Communication Commission of Kenya (CCK) for three weeks.
This means the Kenya Information and Communications (fair competition and equality of treatment) regulations 2010 and the Kenya Information and Communications tariffs) regulations, 2010, published under legal notices no. 27 and 29 of 2010 will only take effect after the contested issues are resolved and agreed upon by the stakeholders.
According to the Ministry of Information PS, Bitange Ndemo, the move follows discussions between operators, CCK, and the Ministry.
Mobile phone operators have been on a collision course with Safaricom objecting the regulations as Zain, Telkom Kenya and YU, supported the set of laws which set out to stop a dominant player form changing her tarrifs without a one month notice to CCK.
“There is need to review some of the inconsistencies in the recently published regulations touching on competition management and tariff regulations and specifically to address areas that have been found to be short of the expected international standards,” said Ndemo.
“We are not suspending the regulations. We are only not enforcing the rules until we agree on the contentious issues,” Ndemo told The Standard on phone.
He said the Ministry of Information has sought help of US-based lawyers speacialised in competition to help sought out the mess and the talks would take three weeks.
He said the specific areas to be re-looked at include ‘process of market segmentation and the application of objective criteria to identify dominant operators in each market segment.
“I know a player like Telkom Kenya will soon emerge a dominant player in data…as per the gazetted rules, segmentation of dominance has not been properly tackled,” argued Ndemo.
“We do not want to punish dominance but abuse of dominance…CCK is yet accurately define dominance… referee in any match must clearly define the rules of the game to avoid unnecessary legal tussles and unfair decisions that in the long run may undermine the growth of the industry;” he said.
The Commission will also have to go back to the drawing board to define what constitutes the abuse of dominance by an operator identified as being dominant and the establishment of corrective measures available to the CCK to remedy such behaviour.
He also called for need to define when tariff regulations apply as neither the ministry of Information nor the CCK has the mandate to control retail prices.
The Fair Competition and Equality of Treatment regulations, part of the Kenya Communications Regulations of 2010, require dominant players in the industry to report to the regulator before revising pricing.
This, Communications Commission of Kenya (CCK) said, was to weed out anti-competitive behaviour and abuse of market power, which has made it difficult for new entrants to join the market.
Safaricom controls 78 per cent of the total mobile telephony market, while its long time competitor, Zain Kenya, controls 14 per cent.
Recent entrants into the market, Telkom Kenya’s Orange and Essar Telecom’s Yu brand have four and one per cent.
Safaricom, the outright dominant player, has argued the new rules are aimed at punishing dominance and not abuse of dominance.
