No change expected in the broadcasting regime due to stand-off between media owners and the regulator, over legal issues.

CCK’s attempts to repossess frequencies from illegal or unauthorized users have not succeeded. Last month the regulator issued a 30-day notice to users to surrender the frequencies or face the law. Acting Commnunications Commission of Kenya Director General Mr. Francis Wangusi said the use of 24 unauthorized FM broadcasting frequencies was causing harmful interference to broadcasters and other critical services.

But the move to repossess frequencies is not new. An earlier attempt was promptly met by a court injunction filed in November 2011 by the Media Owners Association (MOA), arguing that CCK’s intentions were illegal and contrary to Article 34 of the Constitution.

According to the MOA lawyer, Mr Issa Mansur, the CCK had threatened to repossess the frequencies before discussion on the implementation of the Constitution and establishment of an Independent Broadcasting Authority were concluded.

MOA’s objection to the repossession attempt was based on Article 34(3) which provides that broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution; and are independent of control by government, political interests or commercial interest.
Further to that, the constitution provides under Article 34(5) that parliament shall enact legislation that provides for the establishment of an independent body which shall set media standards and regulate and monitor compliance with those standards.

On this basis, MOA argued in its injunction that CCK had no powers to repossess and re-allocate frequencies because the Commission is a government agency and doing so would violate Article 34 sub-articles 29(a), 3(b) and 5(a) which prohibit government control over or interference with free media.

MOA chairman at that time, Mr Samuel Macharia, in a statement to court, also accused the CCK of issuing the notice when media owners and the Attorney General were still consulting on a draft Bills to implement Article 34 of the Constitution.

UNLAWFUL

He said that MOA had met the Attorney General on October 17 and discussed those provisions, but it was while they were still waiting for another meeting to be convened by the AG to discuss the draft Bills that CCK placed the notice of repossessing frequencies.

“Any action by CCK at this stage would be unlawful and unreasonable,” Mr Macharia, who is also the proprietor of Royal Media Services, told the court.

MOA argued that the Ministry of Information had the constitutional mandate of ensuring that the government’s media and broadcasting policies are in accord with the Constitution, but pointed out that the ministry’s mandate was also to ensure that the government does not overstep its mandate in regulation of media and broadcasting services.

MOA’s constitutional petition sought some declarations and interpretation of Article 34. It wanted the court to declare CCK’s notice to repossess frequencies null and void, and to further declare that media freedom under Article 34 had been infringed upon and threatened.

MOA also applied for a permanent injunction stopping the Ministry of Information and CCK from interfering with its members’ licenses, frequencies and broadcasting spectrums.

As a result, Justice Isaac Lenaola issued an order blocking CCK from cancelling broadcast licences or repossessing any frequencies until the petition filed by media owners was determined.

But the Commission fought back, arguing that the Media Owners Association, which filed the petition, lacked authority to do so. The regulator also faulted Justice Lenaola for issuing the injunction.
“The difficulty I have with the interim order is that the petitioner has no licence,” lawyer Wambua Kilonzo, for CCK, told the judge.

In opposing the granting of the injunction, Mr Kilonzo observed that only individual media owners had licences, yet the judge issued an interim injunction stopping CCK from cancelling licences held by the association ‘which did not exist’.

“There is no basis upon which Your Lordship has issued those orders because MOA as an entity does not possess any broadcast licence or frequency,” Mr Kilonzo added.

However, the judge extended the interim orders and directed the commission to file a reply.
As this case drags on since November 29, 2011, the civil aviation authority continues to file complaints citing interference with the aeronautical band from FM stations.

But so long as the injunction still stands, CCK cannot do anything to address the complaints from the civil aviation body.

Under standard procedure, when harmful interference is detected or reported, CCK carries out investigations to determine the cause of the interference by performing measurements and monitoring exercises both at the office and field stations.

INTERFERENCE

Once the source of the interference is identified, CCK usually informs the concerned operator to correct the situation by switching off the transmitter, installing filters, reducing power limits or cease to over-modulate the carrier.

For example, in a letter dated March 6, 2012 addressed to Royal Media Services’ Managing Director Wachira Waruru, CCK’s Director General Francis Wangusi asks the broadcaster to cease unauthorized broadcast on 94.2 MHz in Mezaras with immediate effect.

In the letter, CCK notes with concern that Royal Media has continued to broadcast unauthorized transmission as Bahari FM on 94.2 MHz, thus interfering with another broadcaster who has been duly assigned the 94.3 MHz for use in Mazeras.

The commission, at the end of the letter, threatens to take action at its disposal to remedy the situation at the risk and cost of the “offender.”

It is, however, interesting to note that the March 2012 letter from CCK followed a similar letter dated July 13, 2010 requiring Royal Media to cease the unauthorized use of the said frequency. This means that Royal Media has not been heeding to warnings by CCK.

So, how does the country strike the balance between freedom of media and regulation of radio frequencies to protect the aviation industry as parliament await to enact legislation to operationalize provisions of Article 34?

Legislation to operationalize Article 34 has a three- year timeline under the Fifth Schedule — meaning that parliament is not yet under pressure to establish an independent authority to regulate media as per Article 34(5). The lack of progress in the cases against CCK’s has been attributed to the machinations by current broadcasters to obstruct competition from prospective entrants.