ONE of Kenya’s leading broadcasters is fighting a monumental legal battle for its survival. In case Royal Media Services Ltd loses against the Communications Commission of Kenya (CCK), the citizenry will bid farewell to Citizen Television and several vernacular radio stations that are seen and heard across the country.The firm, owned by businessman Samuel Kamau Macharia, faces virtual shut-down of its broadcasting frequencies. The Court of Appeal has rejected an application by the private broadcaster to block the telecommunications regulator from repossessing the frequencies pending the outcome of the case. Lawyer Dr Gibson Kamau Kuria, has admitted that RMS has been using 22 illegal broadcasting frequencies although no fees have been paid for them. But he claims the firm was condemned unheard by CCK’s use of excess power. Dr Kuria has asserted that the private firm was being denied freedom of information that is essential to democracy. CCK’s action threatens freedom of the press, which he said is major concern to the broadcasting industry. However, Appeal Judges GBM Kariuki, Philomena Mwilu and Jamila Mohamed have said the contentious frequencies will be readily available and the firm will still be able to continue with transmissions if the civil suit is determined in favour of the broadcaster. The firm had not demonstrated that sanctions against CCK were justified, they ruled last week. The Judges said the renowned broadcaster had an arguable appeal because of the urgent need to interpret the spectrum of media freedom under Article 34 of the Constitution. Further, it was crucial to determine whether CCK violated the principles of natural justice when it demanded accountability for the alleged unauthorised frequencies held by the firm, they explained. RMS is aggrieved by the January 18 decision by High Court Judge David Majanja that CCK was entitled to exercise regulatory authority over broadcastingand other electronic media until an oversight body is established. The new body is expected to issue licenses, allocate broadcast frequencies and regulate the sector.
Macharia, the majority shareholder and Chairman of RMS, had sought the court’s protection against CCK’s adverse intervention since the 30-day grace-period granted by Justice Majanja on January 30 had lapsed. He had protested that investments worth Sh1.4 billion and a wage bill of Sh180 million were at stake. Lawyer Wambua Kilonzo, representing CCK, had argued that it was against public policy to allow the firm to illegally continue using unlicensed frequencies. The CCK was the exclusive custodian of the frequencies and it was tantamount to aid an illegality by sanctioning violation of the law, he had argued. Offend the principle Wambua said to suspend CCK’s actions against RMS was likely to offend the principle of proportionality because it would create a vacuum in the regulation of the crucial broadcasting sector. CCK Secretary John Omo had explained that self-assigned broadcast frequencies posed serious risks by threatening the safety of air travel, public safety and general national security. Frequencies were scarce public resources allocated in accordance with complex international agreements and their misuse without proper regulation could result in chaos and breakdown of law and order, he had said.
Omo said CCK assigns frequencies by specifying the location of transmitters, geographical transmitter site co-ordination and maximum effective radiated power. Licensees are required to install band pass filters to eliminate harmful emissions beyond the assigned broadcast bands, he said. The Telecommunications regulator had issued public notices on May 17, last year, warning against the use and operation of frequencies that do not have valid licenses. The notice had directed illegal users to surrender the frequencies within 30 days at the risk of legal action. The action was provoked by complaints by broadcasters and strategic national institutions, including the Kenya Civil Aviation Authority (KCAA), concerning unlawful interference by neighbouring frequencies. Upon inspection, CCK discovered that some broadcasters were causing harmful interference with frequencies which were lawfully assigned to aeronautical services and to other broadcasters.
Omo said RMS had undertaken to install band pass filters in its equipment to curb the offending interference. In the course of its surveillance, CCK confirmed that the firm had been undertaking illegal transmissions on certain frequencies without official assignment. But Macharia had complained that he had used the frequencies for the last 10 years and was entitled to have the facilities until the Government established the new regulatory institution envisaged under Article 34 (5) of the Constitution. Macharia protested that CCK embarked on a systematic damage of its broadcasting sites since March last year and secured court warrants to shut down and confiscate its transmitters in 17 sites by February 3, this year.
The State agency had allocated frequencies to his firm’s rivals that bordered those owned by RMS in March and August last year, he said. The new development comes hot on the heels of the dismissal of the firm’s quest to quash four warrants that facilitated the shutdown of its key 17 broadcasting sites by the CCK on February 2 and 3. Recently, High Court Judge Lydia Achode ruled that RMS flouted warnings by the regulator of the communications industry to take remedial action on its offending equipment. The Judge said CCK was legally justified to dismantle and uproot the firm’s broadcasting equipment following its 30- day notice published in national newspapers on November 30, last year. The regulator had informed Royal Media that six transmitters had been disabled and 11 others were targeted for shutdown for violating the law, she said. The firm had accused CCK of flouting express sanctions imposed by High Court Judge Isaac Lenaola on November 11, 2011 blocking any interference with equipment belonging to members of the Media Owners Association. The aggrieved firm was seeking orders compelling the regulator to return the machines that were seized on February 2
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