Safaricom Now Moves to High Court Over CCK frequency fees row


The love-hate relationship between mobile phone operator Safaricom and industry regulator Communications Commission of Kenya continues. Apart from regulations published early this year that the listed telecoms company fought tooth and nail demanding that they be reviewed, it also feels aggrieved by the handling of its 3G network licence fees.

Last year, Safaricom challenged a Sh135 million invoice by the CCK for usage of its 3G licence. The service provider also wanted the regulator to provide it with a formula it used in arriving at the fee. From the documents presented before the tribunal, Safaricom insists that it is only fair and in line with international benchmarks that they pay Sh5.3 million frequency usage fees.

The tribunal, made up of Rose Simba, Arthur Ogwayo and Richard Mutiso, dismissed the appeal and also ordered Safaricom to pay a third of CCK's cost for the appeal on February 22, 2010. Feeling cheated, the operator has now moved to High Court for a constitutional and judicial review of its appeal. The bone of contention is the legality of the tribunal that determined the appeal in favour of the regulator.

In an affidavit sworn by the then operator's legal and regulatory affairs head, Nzioka Waita, the tenure of the tribunal had lapsed by the time the ruling was made. Waita is currently the head of strategy and new business at Safaricom. "At the time when the 1st respondent (the communications appeals tribunal) delivered its ruling on the February 22, 2010, the term of the members had expired and to the best of the applicant's (Safaricom) knowledge, the same had not been renewed by the minister," says Mr Waita in his affidavit.

However, in a replying affidavit, Information and Communications permanent secretary Bitange Ndemo disputes Waita's assertions. Dr Ndemo says the members of the tribunal were reappointed via a gazette notice 10897 of September 17, 2010. However, their appointments took effect from February 1, 2010.

"I'm aware that the members of the tribunal had individually received letters of appointment on February 1, 2010 which is within the period they made the decision," noted the PS while dismissing the application by the mobile phone operator as mischievous, misconceived and without merit.

Last week, the CCK said that it will review downwards all spectrum and licensing fees by March next year. Operators have, in the past, claimed that spectrum fees in Kenya are the most expensive in the region.