Arrangement of Sections
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THE KENYA COMMUNICATIONS (APPEALS) RULES, 1999
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THE KENYA COMMUNICATIONS (APPEALS) RULES, 1999
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THE KENYA COMMUNICATION REGULATIONS, 2001
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THE KENYA COMMUNICATION REGULATIONS, 2001
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THE KENYA COMMUNICATION REGULATIONS, 2001
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KENYA INFORMATION COMMUNICATIONS AND TECHNOLOGY BOARD ORDER, 2007
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THE KENYA INFORMATION AND COMMUNICATIONS (BROADCASTING) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (BROADCASTING) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (COMPLIANCE MONITORING INSPECTIONS AND ENFORCEMENT) REGULATIONS, 2010
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THE KENYA INFORMATION AND COMMUNICATIONS (DISPUTE RESOLUTION) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (FAIR COMPETITION AND EQUALITY OF TREATMENT) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (INTERCONNECTION AND PROVISION OF FIXED LINKS, ACCESS AND FACILITIES) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (TARIFF) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (FAIR COMPETITION AND EQUALITY OF TREATMENT) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (TARIFF) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (CONSUMER PROTECTION) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (IMPORTATION, TYPE APPROVAL AND DISTRIBUTION OF COMMUNICATIONS EQUIPMENT) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (NUMBERING) REGULATIONS, 2010
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THE KENYA INFORMATION AND COMMUNICATIONS (POSTAL AND COURIER SERVICES) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (RADIO COMMUNICATIONS AND FREQUENCY SPECTRUM) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (LICENSING AND QUALITY OF SERVICE) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (UNIVERSAL ACCESS AND SERVICE) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (ELECTRONIC CERTIFICATION AND DOMAIN NAME ADMINISTRATION) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATION (TRANSITIONAL PROVISIONS) REGULATIONS, 2012
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THE KENYA INFORMATION AND COMMUNICATIONS (REGISTRATION OF SUBSCRIBERS OF TELECOMMUNICATION SERVICES) REGULATIONS, 2012
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THE KENYA INFORMATION AND COMMUNICATIONS (REGISTRATION OF SUBSCRIBERS OF TELECOMMUNICATIONS SERVICES) REGULATIONS
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THE KENYA INFORMATION AND COMMUNICATIONS (REGISTRATION OF SIM-CARDS) REGULATIONS
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THE KENYA COMMUNICATIONS (APPEALS) RULES, 1999
ARRANGEMENT OF RULES
3. |
Appointment of Executive Officer
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4. |
Form and time for lodging an appeal
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6. |
Statement of facts of appeal
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7. |
Service of Memorandum of appeal
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8. |
Statement of facts of the respondent
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9. |
Notice and place of hearing
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10. |
Procedure at hearing of appeal
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11. |
Tribunal to determine own procedure in certain matters
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12. |
Copies of documents admissible
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THE KENYA COMMUNICATIONS (APPEALS) RULES, 1999
1. |
Citation
These Rules may be cited as the Kenya Communications (Appeals) Rules, 1999.
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2. |
Interpretation
In these Rules, unless the context otherwise requires—
"appeal" means an appeal to the Tribunal under any of the provisions of the Act;
"appellant" means a person entering an appeal and the advocate or duly authorized agent of that person;
"Chairman" means the Chairman of the Tribunal appointed under section 102 (1) of the Act;
"Director-General" means the Director-General of the Communications Commission of Kenya appointed under section 6 of the Act;
"memorandum" means a memorandum of appeal presented under rule 4;
"Executive Officer" means the Executive Officer of the Tribunal appointed pursuant to rule 3;
"Permanent Secretary" means the Permanent Secretary of the Ministry for the time being responsible for communications.
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3. |
Appointment of Executive Officer
(1) |
The Permanent Secretary shall appoint a person to be the Executive Officer of the Tribunal.
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(2) |
The Executive Officer shall, in matters relating to appeals to the Tribunal and to the procedure therefor, comply with general or special directions lawfully given by the Chairman or the Tribunal.
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(3) |
The appeals shall be filed in the offices of the Appeals Tribunal at Transcom House along Ngong Road, Nairobi.
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4. |
Form and time for lodging an appeal
(1) |
An appeal shall be entered by presentation of memorandum of appeal, together with five copies thereof, to the Executive Officer within the period specified in the Act, or, where not specified, within thirty days of notification of the decision appealed against to the appellant in writing:
Provided that where the Tribunal is satisfied that, owing to absence from his normal place of residence, sickness or other reasonable cause, the appellant was prevented from presenting a memorandum within that period, and that there has been no unreasonable delay on his part, the Tribunal may extend that period notwithstanding that the period has already expired.
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(2) |
The Executive Officer shall give every appeal filed pursuant to paragraph (1) an appeal number and every document subsequently filed in relation to the appeal shall bear the said number.
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5. |
Memorandum of appeal
A memorandum shall be signed by the appellant and shall set out concisely, under distinct heads, numbered consecutively, the grounds of appeal without argument or narrative.
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6. |
Statement of facts of appeal
Each copy of a memorandum shall be accompanied by—
(a) |
a copy of the decision appealed against; and
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(b) |
a statement, signed by the appellant, setting out precisely all the facts on which the appeal is based and referring specifically to documentary or other evidence which it is proposed to adduce at the hearing of the appeal, and to which shall be annexed a copy of each document or extract from a document upon which the appellant proposes to rely as evidence at the hearing of the appeal.
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7. |
Service of Memorandum of appeal
Within four (4) days after the presentation of a memorandum to the Executive Officer a copy thereof and of the statement of facts of the appellant and the documents, annexed thereto, shall be served by the appellant upon the Director-General.
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8. |
Statement of facts of the Director-General
(1) |
The Director-General shall, if he does not accept any of the facts of the appellant, within twenty-one (21) days after the service thereof upon him under rule 7, file with the Executive Officer a statement of facts together with five copies thereof, and the provisions of rule 6(b) shall mutatis mutandis apply to the statement of facts.
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(2) |
At the time of filing a statement of facts pursuant to paragraph (1), the Director-General shall serve a copy thereof, together with copies of the documents annexed thereto, upon the appellant.
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(3) |
If the Director-General does not desire to file a statement of facts under this rule, he shall forthwith give written notice to that effect to the Executive Officer and to the appellant, and in that case the Director-General shall be deemed at the hearing of the appeal to have accepted the facts set out in the statement of facts of the appellant.
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9. |
Notice and place of hearing
(1) |
As soon as may be convenient after receipt by him of the memorandum, the Executive Officer shall notify the Chairman thereof.
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(2) |
The Chairman shall, after the Director-General has filed a statement of facts or has notified the Executive Officer that he does not intend to do so, fix a time, date and place for a meeting of the Tribunal for the purpose of hearing the appeal, and the Executive Officer shall cause notice thereof to be served on the appellant and the Director-General.
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(3) |
The Executive Officer shall cause to be supplied to each member of the Tribunal a copy of the notice of the hearing and of all documents received by him from the parties to the appeal.
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(4) |
Unless the parties to the appeal otherwise agree, each party shall be entitled to not less than seven days' notice of the time, date and place fixed for the hearing of the appeal.
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10. |
Procedure at hearing of appeal
At the hearing of an appeal, the following procedure shall be observed—
(a) |
the Director-General shall be entitled to be present or be represented;
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(b) |
the appellant shall state the grounds of his appeal and may support it by any relevant evidence, but, save with the consent of the Tribunal and upon such terms as it may determine, the appellant may not at the hearing rely on a ground of appeal other than a ground stated in the memorandum and may not adduce evidence of facts or documents unless those facts have been referred to in, and copies of those documents have been annexed to, the statement of facts of the appellant;
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(c) |
at the conclusion of the statement and evidence on behalf of the appellant, the Director-General may make submissions supported by relevant evidence, and subparagraph (b) shall mutatis mutandis apply to evidence of facts and documents to be adduced by the Director-General;
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(d) |
the appellant shall be entitled to reply but may not raise a new issue or argument;
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(e) |
the Chairman or a member of the Tribunal may at any stage of the hearing, ask any questions of the appellant or the Director-General or a witness examined at the hearing, which he considers necessary to the determination of the appeal;
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(f) |
a witness called and examined by either party may be cross examined by the other party to the appeal;
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(g) |
a witness called and examined by the Tribunal may be cross examined by either party to the appeal;
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(h) |
the Tribunal may adjourn the hearing of the appeal for the production of further evidence or for other good cause, as it considers necessary, on such terms as it may determine;
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(i) |
at the conclusion of the hearing of the appeal the Tribunal may, if necessary, adjourn the proceedings and reserve its decision to be delivered on a day to be notified;
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(j) |
notes of proceedings including submissions and evidence, if any, given by witnesses as far as they are relevant shall be recorded by the Chairman or, where possible, may also be recorded electronically.
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11. |
Tribunal to determine own procedure in certain matters
In matters of procedure not governed by these Rules or the Act, the Tribunal may determine its own procedure.
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12. |
Copies of documents admissible
Save where the Tribunal in any particular case otherwise directs or where a party to the appeal objects, copies of documents shall be admissible in evidence, but the Tribunal may at any time direct that the original shall be produced notwithstanding that a copy has already been admitted in evidence.
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13. |
Costs
The Tribunal may make such order as to costs on an appeal as it may determine.
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THE KENYA COMMUNICATIONS (APPEALS) RULES, 1999
1. |
Citation
These Rules may be cited as the Kenya Communications (Appeals) Rules, 1999.
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2. |
Interpretation
In these Rules, unless the context otherwise requires—
"appeal" means an appeal to the Tribunal under any of the provisions of the Act;
"appellant" means a person entering an appeal and the advocate or duly authorized agent of that person;
"Chairman" means the Chairman of the Tribunal appointed under section 102 (1) of the Act;
"Director-General"
deleted by L.N. 176/2003, r. 2;
"memorandum" means a memorandum of appeal presented under rule 4;
"Executive Officer" means the Executive Officer of the Tribunal appointed pursuant to rule 3;
"Permanent Secretary" means the Permanent Secretary of the Ministry for the time being responsible for communications;
"respondent" —
(a) |
in relation to an appeal brought by a licencee who is a party to a dispute determined by the Commission under Regulation 8 of the Kenya Communications Regulations, 2001, means any licensee (other than the appellant) who was bound by the determination; or
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(b) |
in any other case, means the Commission.
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[L.N. 175 of 2003, r. 2.]
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3. |
Appointment of Executive Officer
(1) |
The Permanent Secretary shall appoint a person to be the Executive Officer of the Tribunal.
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(2) |
The Executive Officer shall, in matters relating to appeals to the Tribunal and to the procedure therefor, comply with general or special directions lawfully given by the Chairman or the Tribunal.
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(3) |
The appeals shall be filed in the offices of the Appeals Tribunal at Transcom House along Ngong Road, Nairobi.
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4. |
Form and time for lodging an appeal
(1) |
An appeal shall be entered by presentation of memorandum of appeal, together with five copies thereof, to the Executive Officer within the period specified in the Act, or, where not specified, within thirty days of notification of the decision appealed against to the appellant in writing:
Provided that where the appellant has made an application under subrule (2) and the Tribunal is satisfied that, owing to absence from his normal place of residence, sickness or other reasonable cause, the appellant was prevented from presenting a memorandum within that period, and that there has been no unreasonable delay on his part, the Tribunal may extend that period notwithstanding that the period has already expired.
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(2) |
An appellant may, by application in writing—
(b) |
supported by an affidavit setting out the reasons for delay; and
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(c) |
filed, with five copies, together with the memorandum of appeal apply for leave to file an appeal out of time or;
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(3) |
The Executive Officer shall give every appeal filed pursuant to paragraph (1) an appeal number and every document filed together with the memorandum or subsequently filed in relation to the appeal shall bear the said number.
[L.N. 176 of 2003, r. 3.]
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5. |
Memorandum of appeal
A memorandum shall be signed by the appellant and shall set out concisely, under distinct heads, numbered consecutively, the grounds of appeal without argument or narrative.
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6. |
Statement of facts of appeal
Each copy of a memorandum shall be accompanied by—
(a) |
a copy of the decision appealed against; and
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(b) |
a statement, signed by the appellant, setting out precisely all the facts on which the appeal is based and referring specifically to documentary or other evidence which it is proposed to adduce at the hearing of the appeal, and to which shall be annexed a copy of each document or extract from a document upon which the appellant proposes to rely as evidence at the hearing of the appeal.
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7. |
Service of Memorandum of appeal
Within four (4) days after the presentation of a memorandum to the Executive Officer a copy thereof and of the statement of facts of the appellant and the documents, annexed thereto, together with any application for leave to file the appeal out of time, shall be served by the appellant upon the respondent.
[L.N. 176 of 2003, rr. 4&5.]
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8. |
Statement of facts of the respondent
(1) |
The respondent shall, if he does not accept any of the facts of the appellant, within twenty-one (21) days after the service thereof upon him under rule 7, file with the Executive Officer a statement of facts together with five copies thereof, nd the provisions of rule 6 (b) shall mutatis mutandis apply to the statement of facts.
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(2) |
At the time of filing a statement of facts pursuant to paragraph (1), the respondent shall serve a copy thereof, together with copies of the documents annexed thereto, upon the appellant.
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(3) |
If the respondent does not desire to file a statement of facts under this rule, he shall forthwith give written notice to that effect to the Executive Officer and to the appellant, and in that case the respondent shall be deemed at the hearing of the appeal to have accepted the facts set out in the statement of facts of the appellant.
[L.N. 176 of 2003, r. 5.]
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9. |
Notice and place of hearing
(1) |
As soon as may be convenient after receipt by him of the memorandum, the Executive Officer shall notify the Chairman thereof.
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(2) |
The Chairman shall, after the respondent has filed a statement of facts or has notified the Executive Officer that he does not intend to do so, fix a time, date and place for a meeting of the Tribunal for the purpose of hearing the appeal, and the Executive Officer shall cause notice thereof to be served on the appellant and the respondent.
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(3) |
The Executive Officer shall cause to be supplied to each member of the Tribunal a copy of the notice of the hearing and of all documents recieved by him from the parties to the appeal.
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(4) |
Unless the parties to the appeal otherwise agree, each party shall be entitled to not less than seven days' notice of the time, date and place fixed for the bearing of the appeal.
[L.N. 176 of 2003, r. 5.]
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10. |
Procedure at hearing of appeal
At the hearing of an appeal, the following procedure shall be observed—
(a) |
the respondent shall be entitled to be present or be represented;
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(b) |
the appellant shall state the grounds of his appeal and may support it by any relevant evidence, but, save with the consent of the Tribunal and upon such terms as it may determine, the appellant may not at the hearing rely on a ground of appeal other than a ground stated in the memorandum and may not adduce evidence of facts or documents unless those facts have been referred to in, and copies of those documents have been annexed to, the statement of facts of the appellant;
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(c) |
at the conclusion of the statement and evidence on behalf of the appellant, the respondent may make submissions supported by relevant evidence, and subparagraph (b) shall mutatis mutandis apply to evidence of facts and documents to be adduced by the respondent;
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(d) |
the appellant shall be entitled to reply but may not raise a new issue or argument;
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(e) |
the Chairman or a member of the Tribunal may at any stage of the hearing, ask any questions of the appellant or the respondent or a witness examined at the hearing, which he considers necessary to the determination of the appeal;
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(f) |
a witness called and examined by either party may be cross examined by the other party to the appeal;
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(g) |
a witness called and examined by the Tribunal may be cross examined by either party to the appeal;
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(h) |
the Tribunal may adjourn the hearing of the appeal for the production of further evidence or for other good cause, as it considers necessary, on such terms as it may determine;
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(i) |
at the conclusion of the hearing of the appeal the Tribunal may, if necessary, adjourn the proceedings and reserve its decision to be delivered on a day to be notified;
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(j) |
notes of proceedings including submissions and evidence, if any, given by witnesses as far as they are relevant shall be recorded by the Chairman or, where possible, may also be recorded electronically.
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[L.N. 176 of 2003, r. 5.]
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11. |
Tribunal to determine own procedure in certain matters
In matters of procedure not governed by these Rules or the Act, the Tribunal may determine its own procedure.
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12. |
Copies of documents admissible
Save where the Tribunal in any particular case otherwise directs or where a party to the appeal objects, copies of documents shall be admissible in evidence, but the Tribunal may at any time direct that the original shall be produced notwithstanding that a copy has already been admitted in evidence.
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13. |
Costs
The Tribunal may make such order as to costs on an appeal as it may determine.
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THE KENYA COMMUNICATION REGULATIONS, 2001
ARRANGEMENT OF REGULATIONS
PART I – PRELIMINARY
PART II – OPERATING PROCEDURES
PART III – FINANCIAL PROVISIONS
4. |
Payments to the Commission
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PART IV – FAIR COMPETITION AND EQUALITY OF TREATMENT
PART V – TELECOMMUNICATIONS LICENCES
11. |
International Conventions
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13. |
Lapse and renewal of licence
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PART VI – RADIO COMMUNICATIONS
PART VII – INTERCONNECTION AND PROVISION OF FIXED LINKS
PART VIII – TYPE APPROVAL OF TERMINAL EQUIPMENT
PART IX – NUMBERING
PART X – POSTAL AND COURIER SERVICES
PART XI – TARIFFS REGULATION
92. |
Applications for tariff approval
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95. |
Investigation and suspension of tariffs
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96. |
Tariffs (file and use)
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PART XII – REPORTS, INVESTIGATIONS, INSPECTIONS AND ENFORCEMENT
PART XIII – MISCELLANEOUS PROVISIONS
102. |
Registration of telecommunications contractors and vendors
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SCHEDULES
FIRST SCHEDULE — PRESCRIBED FORMS |
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THE KENYA COMMUNICATION REGULATIONS, 2001
PART I – PRELIMINARY
1. |
Citation
These Regulations may be cited as the Kenya Communications Regulations, 2001.
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2. |
Interpretation
In these Regulations, unless the context otherwise requires—
"Act" means the Kenya Communications Act (No. 2 of 1998);
"basic telecommunications service" means a service offered to subscribers which provides such subscribers with a telephone connection to, and a unique local telephone number address on a licensed local access provider and which enables such subscribers to place calls to, or receive calls from, other telecommunications stations on those systems and shall include residence and business line services;
"basic telephone service" means a service provided to the public which allows end users to transmit and receive real time voice communications, including voice telephony service, public pay telephone service, operator assisted services, local, domestic and international long distance telephone services whether by wire or wireless means as well as basic, non-packet switched data communications, such as facsimile transmissions but does not include advanced or enhanced telephone services or dedicated data communications services such as paging services;
"basic telephony" means fixed or mobile communications service in which a two-way connections are established without any deliberate removal or addition to the information content transmitted over that connection or any additional service having been provided thereof;
"circuit" means the physical connection or path of channels or conductors and equipment between two given points through which an electric current may be established;
"contract" means any agreement, arrangement, bond, commitment, franchise, indemnity, indenture, instrument, lease, concession, licence or understanding, whether in writing or not in writing;
"communications" shall, where used in these Regulations refer to telecommunication, postal and radio communications services;
"Commission" means the Communications Commission of Kenya established under section 3 of the Act;
"confidential business information" means a proprietary information of a trade, commercial or financial nature that is—
(a) |
of a kind that would customarily not be released to the public by the person from whom it is obtained; and
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(b) |
the disclosure of which is likely to impair the Commission's ability to obtain similar necessary information in the future or to cause substantial harm to the competitive position of the person from whom the information is obtained;
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"global navigation system" means an arrangement of technical apparatus by means of which an end user can determine location parameters of latitude, longitude and altitude at any instant of time anywhere on the earth surface;
"international call completion rate" means the minimum percentage of international telephone calls originating within a licensee's network completed per total of international call attempts measured during the peak traffic hour;
"international telephone call" means an effective or completed telephone call exchanged with a telecommunications station outside the country in which the calling telecommunications station is situated;
"ITU" means the International Telecommunications Union;
"leased line" means a telecommunications line that is made available to a subscriber for his exclusive use;
"licensee" means the holder of a licence issued by the Commission under the Act or these Regulations;
"line" means a transmission medium between terminal locations and includes associated repeaters;
"local service provider" means a telecommunications licensee licenced to provide local basic telephone service excluding international and long distance services but include value added services in accordance with the relevant licence issued by the Commission;
"local call completion rate" means the minimum percentage of local telephone calls completed per total of local call attempts measured during the peak traffic hour which originate and terminate from the licensee's network;
"local telephone call" means an effective or completed telephone call exchanged with a telecommunications station within the local charging area in which the calling telecommunications station is situated;
"mobile radio-communication system" means a telecommunications system consisting of mobile service switching centres each of which typically serves a number of "cells" which establish calls to and from mobile subscribers in their respective call service areas, thereby allowing calls to be transferred from one cell to another cell without interruption and established or to be established by an operator under a licence to provide mobile radio-communications Services;
"mobile radio-communication service" means a telecommunications service that operates through a mobile radio-communications system employing a network architecture in a "cell" configuration in which low-powered radio transmissions allow for the re-use of the same frequency simultaneously in multiple cells and shall include both voice telephony services and non-voice telephony services but shall unless otherwise expressly provided in a licence, exclude video, paging and high speed data services;
"national long distance telephone call" means an effective or completed telephone call exchanged with a telecommunications station outside the local charging area in which the calling telecommunications station is situated;
"national long distance call completion rate" means the percentage of national long distance telephone calls completed per total of national long distance call attempts measured during the peak traffic hour which originate and terminate within a licensee's network (internal national long distance call completion rate), or which terminate outside the licensee's network (external national long distance call completion rate);
"non-service specific interfaces" means a shared boundary between two functional units that is not specific to any one telecommunications service;
"operational subscriber's line" means an operational subscriber's line connecting a subscriber's premises to the exchange;
"paging service" means a telecommunications services that provide subscribers with radio messages, through portable radio equipment used in a given zone, which may be accompanied by a verbal or codified visual message;
"private telecommunications services" means telecommunications services established by any person for the sole purpose of satisfying his own communications needs within Kenya and may include telephony service or value added services, radio communication and cable services;
"roaming services" means a type of telecommunications or radio communications service that enables subscribers of one mobile cellular communications system to utilise the facilities of another mobile radio communications system with which the subscriber has no direct pre-existing service or contractual relationship to place an outgoing call, to receive an incoming call, or to continue an in-progress call;
"satellite mobile telecommunications service" means a service which allows for voice or data communications through the use of mobile terminal equipment and capable of maintaining a direct uplink to or direct downlink from a satellite-based telecommunications network;
"satellite telecommunications service" means a telecommunications service provided through connections from earth stations to authorised public or private satellite-based telecommunications system;
"service agreement" means any agreement between an operator and a subscriber or subscribers relating to the provision and use of a telecommunications service;
"service quality requirements" means conditions of licence established by the Commission pursuant to section 25 of the Act for the purpose of improving the quality and delivery of telecommunications services in Kenya;
"store and forward messaging service" means a service whereby messages can be exchanged between subscribers using storage and retransmission devices;
"subscriber" means any person provided with a telecommunications service by a licensee, and who is responsible for payment of all charges and rentals;
"subscriber line" means a telecommunications link connecting the local telecommunications center to the subscriber's premises or telephone instrument or system;
"tariffs" means the charges by a telecommunications service operator or its subscribers;
"telex service" means a telecommunications service that provides for the interactive telecommunication of texts between subscribers through teleprinting devices interconnected by a telex network via transmission of codified information;
"third party private network service" means a service over a user-dedicated network supplied by a licensee providing such services, whether directly or indirectly, to the user of such services;
"Tribunal" means the Appeals Tribunal established under section 102 of the Act;
"trunk capacity resale service" means a type of telecommunications service which, using a trunk capacity resale system, provides the necessary capacity to carry and route telecommunications signals constituting the main interconnection between telecommunications systems and networks and which allows the provision of final services, distribution services and value added services;
"value added services" means such services as may be available over a telecommunications system in addition to voice telephony service, and specifically those services listed as "value added services" in these Regulations, including the following—
(a) |
"videotex" means a service involving a two-way interactive computer-based information system in which a subscriber is linked to a database by telephone line or cable;
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(b) |
"teletex" means a service whereby a subscriber can exchange office correspondence in the form of documents containing teletex coded information on an automatic memory-to-memory basis;
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(c) |
"teleaction" means a service used to send short messages at very low transmission speeds between the subscriber and a communications network;
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(d) |
"telecommand" means a service whereby a supervised system is controlled from a remote control device;
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(e) |
"telealarm" means a service whereby an electric signal is sent to a remote control device each time there is a threshold change of conditions in the supervised system;
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(f) |
"store and forward messaging service" means a service whereby messages can be exchanged between subscribers using storage and retransmission devices;
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(g) |
"teleprocessing and data processing" means an interactive service used for the processing of data and exchange of messages between the terminals of geographically distant subscribers;
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(h) |
"electronic mail services" means a service whereby subscribers may send messages to one or more addressees and receive messages using a combination of data storage and retransmission techniques so that the final subscriber may recover the message. This service may be used as follows —
(i) |
electronic mail (X.400): a service allowing a subscriber to send messages instantaneously to another subscriber's directory or electronic "mailbox" (i.e., person-to-person messaging, according to the ITU X.400 international standards);
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(ii) |
electronic document interchange (EDI): person-to-person messaging, according to electronic data interchange fact (EDIFACT);
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(iii) |
electronic fund transfer;
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(iv) |
electronic voice mail: a storage and retrieval service whereby voice messages from one subscriber are digitally stored in order to be received by another subscriber;
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(i) |
"voice messaging" means a service whereby the subscriber transmits a brief message by calling one or more telephone numbers at a given time or by answering the call of another subscriber;
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(j) |
"voice telephony service" means a telecommunications service which provides subscribers with the ability to conduct real-time two-way speech conversation via a fixed or mobile network;
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(k) |
"information services" means an interactive service that provides access to information stored in database centres and which may be sent to the world wide web subscriber only upon request;
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(l) |
"packet switching service" means without using the systems network, data signals called packages are split up according to a sequence of signals arranged in a specific format, in accordance with the ITU X.25 and X.75 standards and such other generally recognised standards as may be approved for use over the public communications network by the Commission;
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(m) |
any other service as may be classified as such in the Gazette by the Commission.
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PART II – OPERATING PROCEDURES
3. |
Protected Information
(1) |
Any person who communicates with the Commission, and whose communication includes confidential business information, may submit a written request to the Commission that the specific portion of that communication consisting of such confidential information be protected from disclosure.
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(2) |
Any request made under paragraph (1) of this regulation that is deemed by the Commission to be valid shall entitle the person who has made such a request to —
(a) |
protection of confidential business information from being referred to in any writing or communication issued by the Commission;
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(b) |
non-publication of the confidential information in its entirety in any writing or communication issued by the Commission and, to the extent that the confidential information quoted or referred to by the Commission in any writing or communication, it shall be identified as such, together with directions on how the full text of the information may be obtained by the public.
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(3) |
Trade secrets and other confidential or proprietary information pertaining to the commercial interests of any person, which are submitted in connection with a communication by any person to the Commission, may be entitled to treatment as confidential business information.
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(4) |
A person seeking to have information or materials treated as confidential business information may submit the information or materials to be considered separately from the other communications to the Commission, together with a written request that the Commission treat such information as confidential business information.
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(5) |
The Commission may on its own motion determine that the information or materials should not be routinely available for public inspection.
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(6) |
In the absence of a request referred to in paragraph (4), materials or information that are submitted may be made available for inspection upon request, even though such information or materials may contain trade secrets or confidential information.
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(7) |
The presence of confidential business information within the body of a communication to the Commission shall not entitle the entirety of those communications to confidential treatment, but that portion of the communications which is entitled to confidential treatment as confidential business information may be extracted from the main body of the communication made available for public inspection.
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(8) |
The disclosure of confidential business information may be compelled pursuant to a parliamentary, judicial or other lawful process.
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PART III – FINANCIAL PROVISIONS
4. |
Payments to the Commission
(1) |
The Commission may from time to time prescribe fees payable in respect of any licence issued or service performed under the Act or these Regulations.
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(2) |
Every fee payable to the Commission in connection with applications for licences, frequency spectrum assignments, or any other matter shall be paid in full before the licence is granted or the frequency is assigned by the Commission.
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(3) |
Unless otherwise prescribed by the Commission, all licensees shall make yearly payment of the annual operating fees due for the current year by the 1st day of July of each calendar year, but not later than three months after the end of the licensee's financial year.
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(4) |
Where any licensee is required to pay fees to the Commission on the basis of information or records in the custody of such licensee, the licensee shall submit a declaration to the Commission in the manner prescribed by the Commission, attesting to the completeness and accuracy of the information upon which such computation of fees is based.
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(5) |
Where a licence requires that payment of a licence or an annual operating fee be based on a percentage of a licensee's gross annual revenues, the base for calculating a licensee's gross annual revenues shall include—
(a) |
payments from subscribers and other users; and
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(b) |
the amount billed including uncollected payments from subscribers and other customer accounts.
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PART IV – FAIR COMPETITION AND EQUALITY OF TREATMENT
5. |
Acts of unfair competition
(1) |
The Commission shall, in the performance of its duties under the Act and these Regulations, promote, develop and enforce fair competition and equality of treatment among all licensees in any business or service relating to communications.
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(2) |
Acts of unfair competition shall include—
(a) |
any abuse by a licensee either independently or with others, of a dominant position that unfairly excludes or limits competition between such licensee and any other party; or
|
(b) |
entering into any agreement or engaging in any concerted practice with any other party, which unfairly prevents, restricts or distorts competition; or
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(c) |
the perpetuation of anti-competitive changes in the market structure and in particular, anti-competitive mergers and acquisitions in the communications sector;
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(d) |
any other practices or acts that are prohibited under any other written law.
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6. |
Licensees to offer non-preferential service
(1) |
All licensees shall provide uniform, non-preferential service on a first-come-first-served basis to all persons within a covered geographical area who request for such service:
Provided that it shall not amount to violation of the principle of equal access and non preferential treatment for a licensee to—
(a) |
consider the ability of a person to pay for a service when deciding whether to provide a service to such person; or
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(b) |
make other rational classifications among subscribers, such as business and residential, and to provide service on the basis of such classification:
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Provided further that all persons within a given class shall be provided with service on a non-preferential, first-come, first-served basis.
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|
7. |
Complaints of unfair competition
(1) |
The Commission may, on its own motion or upon a complaint, investigate any licensee whom it has reason to believe or is alleged to have committed any act or omission, or to have engaged in a practice, in breach of fair competition or equal access.
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(2) |
Any person with a complaint regarding breach of fair competition or equal access against any licensee may lodge such a complaint with the Commission.
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(3) |
Where it appears to the Commission that a breach of fair competition or equal access has been committed, the Commission may investigate the act or omission and give written notice to the licensee—
(a) |
informing him that the Commission is investigating a possible breach of fair competition or equal access;
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(b) |
stating the matters consulting the contravention or breach, including any matter of facts or law which are relevant to the investigation;
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(c) |
requiring the licensee to furnish the Commission with information required in order to complete the investigations; and
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(d) |
of the appropriate steps to be taken in order to remedy the breach.
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(4) |
The licensee shall, within 30 days from the date of the notice, make representations in response to the notice and shall give the Commission all information in his possession required under the notice.
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(5) |
Any person affected by the contravention or breach of fair competition or equal access may make representation to the Commission in that regard.
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(6) |
Where the Commission is of the opinion that a licensee is competing unfairly, it may issue an order-
(a) |
requiring the licensee to cease and desist from the activity found to constitute unfair competition or equal access;
|
(b) |
requiring the licensee to take action to remedy the unfair competition or failure to provide equal access;
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(c) |
requiring the licensee to pay a penalty not exceeding six thousand shillings for every month or part thereof during which the contravention of the fair competition continues;
|
(d) |
declaring any anti-competitive agreements or contracts null and void.
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(7) |
The provisions of this regulation shall not affect the right of any person to take any other action against a licensee under any other applicable law.
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|
8. |
Disputes between licensees
(1) |
The Commission shall have the power to settle any disputes between licensees of communications services, including disputes relating to—
(a) |
allegations of unfair competition or abuse of dominant position by a licensee;
|
(b) |
access to, use or abuse of, and other matters relating to network interconnection, irrespective of whether or not an interconnection contract exists;
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(c) |
rates, charges and other payments or compensation arising under agreements between licensees;
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(e) |
technical aspects of the public communications services; and
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(f) |
damage to or interference with an operator's equipment, network, or services by another licensee.
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|
(2) |
The Commission shall have the power to hear and settle any disputes between a licensee and a subscriber or a class of subscribers, including —
(a) |
allegations of undue discrimination by a licensee in respect of unauthorized charges or terms for the provision of a communications service; and
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(b) |
allegations of unauthorized or high charges levied by a licensee.
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|
(3) |
The exercise of the power conferred to the Commission by paragraph (2) of this regulation shall be contingent upon a determination by the Commission that a subscriber or a class of subscribers have first made a reasonable effort to resolve the complaint through the approved complaints and claims handling procedure provided for the licensee.
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(4) |
The decision of the Commission rendered pursuant to this regulation shall, within 15 days, be entered in the register of the Commission and communicated to all the parties to the dispute.
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(5) |
The decision of the Commission in a dispute shall be binding on the parties and, where a contract or agreement exists between the parties, such a decision shall have the effect of an addendum to the contract or agreement.
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(6) |
Any person aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within 15 days of the date of the decision of the Commission.
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(7) |
The provisions of this regulation shall not limit, relieve, or in any way affect the obligations of a licensee under any condition of a licence.
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PART V – TELECOMMUNICATIONS LICENCES
9. |
Licenses required
The Commission shall issue telecommunications licenses in accordance with the provisions of the Act.
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10. |
Licensing
(1) |
The Commission shall prescribe the terms and conditions of all licences, as it considers consistent with the objectives of the Act, these Regulations and such other circumstances as the Commission may consider appropriate, including the terms and conditions upon which the license is granted, the services to be provided by the licensee and the network to be operated by the licensee.
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(2) |
The Commission may issue licenses for the provision of local access services, national long distance services, international services, very small aperture terminal services, internet backbone, global mobile personal communications services (GMPCS) and customer premises wiring, terminal equipment and maintenance, repair workshop services and radio station licence.
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(3) |
Local access services shall be provided by a licensed local access provider or a regional telecommunications operator.
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(4) |
Licences granted shall contain an obligation to provide services efficiently and at reasonable costs.
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(5) |
Licences may include the provision of services to rural or sparsely populated areas or other specified areas and other conditions as the Commission may deem necessary.
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|
11. |
International Conventions
The Commission may require licensees to comply with international conventions or agreements relating to communications services to which Kenya is signatory.
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12. |
Transfer of Licence
(1) |
A licence granted under the Act may not be transferred without the written consent of the Commission.
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(2) |
An application for the transfer of a licence shall be accompanied by an application in the prescribed Form 1 set out in the First Schedule, completed by the person to whom the licensee intends to transfer the licence.
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(3) |
The Commission shall in considering an application for transfer have regard to the same terms and conditions as in considering a grant of a new licence, provided that the Commission may in its discretion refuse to approve such an application for transfer under this regulation.
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|
13. |
Lapse and renewal of licence
(1) |
An application for renewal of a licence shall be made in accordance with the conditions of each licence.
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(2) |
In considering an application for renewal of a licence, the Commission shall have regard to the fulfilment by the licensee of the obligations contained in the licence in the previous licence period.
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(3) |
The process for renewal of a licence for telecommunications services shall be contained in each licence and each application process shall be considered as part of these Regulations.
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PART VI – RADIO COMMUNICATIONS
14. |
Basis and purpose
The regulations in this part are meant to regulate radio transmissions and issuance of licenses for radio stations.
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15. |
Definition of terms
In this Part, unless the context otherwise requires —
"authorised frequency" means the frequency assigned to a radio station by the commission;
"authorised power" means power assigned to a radio station by the commission;
"fixed service" means a service of radio-communication between specified fixed points;
"fixed station" means a station in the fixed service;
"harmful interference" means any radiation or induction which endangers the functioning of a radio-navigation service or of a safety service or obstructs or repeatedly interrupts an authorised radio or telecommunication service;
"radio communication service" means service involving transmission, emission or reception of signs, images, signals, writings, and sounds or intelligence of any nature by radio waves;
"station authorisation" means any construction permit, licence, or special temporary authorisation issued by the Commission.
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16. |
National Spectrum management policy
(1) |
The Commission shall manage and control the use of or emissions from the radio electromagnetic spectrum and use of geostationary orbital slots within the territory of Kenya and shall have the power to withdraw, suspend, or prohibit any such use or emissions.
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(2) |
The Commission shall, in accordance with the Act, have the power to negotiate with the International Telecommunication Union, its affiliated bodies and other countries' regulatory bodies or entities performing such functions.
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(3) |
The Commission shall be responsible for, frequency planning and engineering, frequency assignment and licensing, frequency monitoring and inspection of radio stations, and the implementation of the Kenya government policies on radio communications National Spectrum management policy.
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|
17. |
Application criteria for approval
(1) |
The Commission, in considering applications for frequency assignment shall take into consideration —
(a) |
spectrum availability for the type of service and proposed location;
|
(b) |
whether the proposed service can be satisfied by any other means of communications; and
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(c) |
the distress and safety radio communication services which require special protection from harmful interference.
|
|
(2) |
The Commission may assign the use of a frequency or frequencies to the applicant, and shall for that purpose take into account all technical data of the equipment and associated accessories proposed to be used by the applicant.
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|
18. |
Assignment of frequencies
(1) |
The Commission may, upon application in a prescribe Form No. 5 set out in the First Schedule, assign frequencies when it is satisfied that such assignment will not cause harmful interference to any station or licensee operating in accordance with the Kenya table of frequency allocations:
Provided that in the event of non-availability of the frequencies applied for, the Commission may consider assigning frequencies in alternative frequency bands.
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(2) |
A person licensed to operate and provide mobile radio communication - systems and services shall apply to the Commission in the prescribed form No. 6 set out in the First Schedule for assignment of the necessary frequencies:
Provided that in the event of non availability of the frequencies applied for, the Commission may consider assigning frequencies in alternative frequency band.
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(3) |
When the Commission is satisfied with an application, the applicant may be assigned a frequency or frequencies, which shall be used in accordance with the prescribed technical and operating parameters.
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(4) |
The Commission may impose any conditions on the use of the assigned frequencies.
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|
19. |
Obligations of the licensee
(1) |
All licensees assigned the use of frequencies or frequency bands shall —
(a) |
maintain and provide, at the Commission's request, an inventory of frequencies assigned;
|
(b) |
keep the license in force by regular payment of annual fees as may be prescribed from time to time by the Commission; and
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(c) |
guard against unauthorized emission, harmful interference or illegal use of the spectrum.
|
|
(2) |
The Commission may where it considers expedient so to do require a licensee to migrate to a new frequency band.
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|
20. |
Ownership of frequencies
(1) |
A frequency licence shall not confer any ownership rights of the frequency to the licensee.
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(2) |
The commission may require licensees to share a frequency band.
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|
21. |
Transfer and assignment of station authorization
Frequencies assigned to be used by a licensee and the rights therein granted by such authorisation shall not be transferred, without the written consent of the Commission.
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22. |
Temporary authorization
The Commission may at its discretion grant a temporary frequency assignment.
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23. |
Change in equipment
(1) |
No material change may be made in a licensed station, including change of station parameters as specified in the license without written authorisation from the Commission.
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(2) |
Without prejudice to the generality of this regulation, a licensee shall seek the approval of the Commission where such licensee proposes a change which is likely to increase the height of a structure supporting the radiating portion of the antenna or decrease the height of a lighted antenna structure or in the location of an antenna when such relocation involves a change in the geographic co-ordinates of latitude or longitude by as much as one second, or when such relocation involves a change in street address.
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|
24. |
Station identification
All licensees shall ensure that each class of station, unless exempted by the terms of a stations authorisation, transmits assigned call sign at the end of each complete transmission:
Provided, that the transmission of the call sign at the end of each transmission shall not be required in cases of projects requiring continuous, frequent or extended use of the transmitting apparatus, if, during such periods and in connection with such use, the call sign is transmitted at least once every thirty minutes.
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25. |
Type approval and inspection
(1) |
No frequency spectrum shall be assigned unless a radio equipment in respect of which an assignment is sought has been duly type approved by the Commission.
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(2) |
Upon installation of the radio communication system, the licensee shall ensure that the system is inspected and certified by the Commission to be operating in accordance with conditions of assignment.
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|
26. |
Monitoring and Inspection
(1) |
The Commission shall monitor all emissions from licensed stations for the purpose of ensuring efficient utilisation and compliance with licensed parameters.
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(2) |
The licensee shall provide unlimited access to the Commission's authorised officers to the licensees' installations for purposes of inspection and verification of operational parameters.
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(3) |
All records of stations shall be made available for inspection by the Commission's authorised officers at any time while the station is in operation.
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(4) |
Any interference experienced by the licensee shall be reported to the Commission in writing.
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(5) |
All frequency licensees shall comply with directions from the Commission that will assist in the resolution of frequency interferences.
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|
27. |
Inspection and maintenance of towers and control equipment
(1) |
A licensee of any radio station which has an antenna structure required to be painted and illuminated pursuant to the provisions of any written law shall perform all inspections and maintenance of the tower marking and lighting, and associated control equipment, required thereto.
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(2) |
All licensees shall ensure full compliance with directions given by the Commission in consultation with the government agency responsible for civil aviation, in regard to antenna towers.
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|
28. |
Misuse of frequencies
(1) |
Any licensee who uses a frequency or frequencies assigned, or provides a radio communications service other than the service or services for which he holds a licence shall be guilty of an offence.
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(2) |
Any licensee who uses an unauthorised frequency or equipment to offer radio communication service shall be guilty of an offence.
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29. |
Discontinuation of station operation.
Where a licensee intends to permanently discontinue operating a radio communication station, the licensee shall forward the station licence, together with a request for cancellation of the licence, to the Commission.
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30. |
Measures against violations
(1) |
The Commission may disable or confiscate any radio communication apparatus or stations operated in contravention of the condition of license or in contravention of the Act and these Regulations.
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(2) |
The confiscated equipment or apparatus shall be disposed of according to the applicable procedures.
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31. |
Revocation of licenses
(1) |
The Commission may revoke a license if—
(a) |
the licensee contravenes any part or parts of the licence conditions;
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(b) |
the service provision license or permit is not in force;
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(c) |
the licensee fails to renew the license within the specified period:
|
Provided that the Commission may revoke a licence in accordance with the circumstances that are detailed in each licence.
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(2) |
An order revoking a frequency licence shall be in writing and shall be availed to the licensee.
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(3) |
Any person aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within fifteen (15) days of the date of making such a decision.
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PART VII – INTERCONNECTION AND PROVISION OF FIXED LINKS
32. |
Basic and purpose
Regulations in this Part shall apply to the form and content of interconnection agreements and to all interconnect providers and interconnect operators.
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33. |
Power to review
The Commission shall have the power to review all interconnection agreements with a view to ensuring that such agreements conform to the Act and these Regulations.
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34. |
Interpretations
In this Part unless the context otherwise requires—
"call completion rate" means the ratio of successfully completed calls to the total number of attempted calls;
"calling line identity" means the information generated by a telecommunications system that identifies the calling number and forwards that information through that telecommunications network to a receiving telecommunications system;
"customer" means a user of telecommunications services offered by a telecommunications licensee;
"essential service" means any telecommunications service declared by the Commission in the Gazette to be an essential service for the purposes of these Regulations;
"interconnect capacity" means a transmission and switching capability and any other facility for connecting telecommunications networks of two or more telecommunications service licensees;
"interconnect provider" means a provider of a telecommunications service who, in accordance with a licence issued by the Commission, is required to provide interconnection service to other telecommunications licensees;
"interconnect operator" means a provider of telecommunication services who has interconnected or has requested that it be able to interconnect its telecommunications system to the telecommunications system of an interconnect provider;
"interconnection agreement" means an agreement, entered into, before or after the coming into force of these Regulations, between interconnect provider and an interconnect operator in relation to the interconnection of their telecommunication systems;
"interconnection information" means information in the possession or control of parties to an interconnection agreement or intending to interconnect their telecommunications networks and which may assist such parties to better formulate their interconnection or plans or to establish or maintain their telecommunication systems or a telecommunication service for the purpose of interconnection, which information may include —
(a) |
technical, traffic and other relevant information;
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(b) |
system and facilities specifications; and
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(c) |
any material changes to that information or specifications which may impact on the parties' interconnection arrangements or the services they intend to provide to customers by means of that interconnection;
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"local access provider" means any person licensed by the Commission to provide telecommunications service within a telecommunications region or regions as prescribed by the Commission in its licence; and shall include regional telecommunications operators;
"long distance access provider" means any person licensed to provide inter-regional telecommunications services in accorfiance with a licence issued by the commission;
"major telecommunications systems provider" means a licensee with a market share of more that 25% of the revenue of the entire telecommunications market and has been declared by the Commission in the Gazette to be a major telecommunications systems provider;
"point of interconnection" means a mutually agreed upon point where the exchange of traffic between the telecommunication system or apparatus of an interconnect provider and the telecommunications system or apparatus of an interconnect operator, takes place, including the exchange of traffic between a local access provider or mobile cellular communication operator (as applicable) and another licenced telecommunications network operator;
"private operator" means the licensee of a telecommunications system that provides private telecommunication services for its own use;
"public operator" means a provider of a public telecommunications service or a public cellular mobile communications service;
"telecommunications region" means a geographic area prescribed by the commission within which a licensee is licensed to operate telecommunications systems and services;
"service provider" means a provider of a telecommunications service other than a private operator.
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35. |
Rights and Obligations to interconnect
(1) |
Save as provided in the Act or in a particular licence, a licensee shall have the right to choose its interconnection provider to route calls towards customers of another licensee:
Provided that in the case of calls towards international destinations, calls shall be routed through the operator or operators licensed to provide such service.
|
(2) |
A licensee under the Act shall have the right and, when requested by another licensee, an obligation, to negotiate the interconnection of its telecommunications system, facilities and equipment with the telecommunications system, facilities and equipment of another licensee, in order to provide end-to-end connectivity and interoperability of services for all customers.
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(3) |
All telecommunications systems providers shall meet all reasonable request for access to their telecommunications system at network termination points offered to the majority of the customers.
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|
36. |
Contents of Interconnection agreements
(1) |
Save as the commission may, upon the request of any party specify in writing all interconnection Agreements between telecommunication system providers shall be in writing and shall, inter cilia, provide for—
(a) |
the scope and specification of interconnection;
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(b) |
access to all ancillary or supplementary services or access to and use of premises or land necessary to support interconnection;
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(c) |
maintenance of end-to-end quality service and other service levels;
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(d) |
charges for interconnection;
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(e) |
billing and settlement procedures;
|
(f) |
ordering, forecasting, provisioning and testing procedures;
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(g) |
points of interconnection or co-location;
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(h) |
the amount of, or the forecast procedures to be used to determine, interconnect capacity to be provided;
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(i) |
transmission of call line identity;
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(j) |
provisions for network information;
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(k) |
provisions for information regarding system modernisation or rationalisation;
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(l) |
technical specifications and standards;
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(m) |
interoperability testing, traffic management, measurement and system maintenance;
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(n) |
information handling and confidentiality provisions;
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(o) |
duration for and renegotiation of the agreement;
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(p) |
formation of appropriate working groups to discuss matters relating to interconnection and to resolve any disputes; and
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(q) |
formal dispute resolution procedures.
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|
|
37. |
Basis of Interconnection
(1) |
The terms and conditions of an inter-connection agreement shall promote increased public and efficient use of telecommunications services and facilities.
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(2) |
All interconnection agreements shall facilitate end-to-end connectivity by ensuring that calls originated on the telecommunications system of an interconnect operator can be terminated at any point on the telecommunications system of any other telecommunications service provider on a non-discriminatory basis.
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(3) |
Any transmission of calls across and within telecommunications systems shall be seamless to both the calling and called parties.
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(4) |
All procedures for forecasting, ordering and provisioning interconnection shall be efficient and occur within reasonable time frames.
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(5) |
All facilities or systems used for interconnection shall be provided in sufficient capacity to enable the efficient transfer of information between interconnected telecommunication systems.
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(6) |
A service acquired as part of interconnection may be used for any lawful purpose.
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(7) |
Interconnection agreements shall not, directly or indirectly—
(a) |
preclude or frustrate the exercise by any person of rights or privileges given under the Act, a licence or these Regulations;
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(b) |
impose any penalty, obligation or disadvantage on any person for exercising any rights under the Act, a licence or these Regulations;
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(c) |
prohibit a person from providing an interconnection service which that person is able to lawfully provide; or
|
(d) |
frustrate the provision by any person of a telecommunications service that the person is able to lawfully provide.
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|
|
38. |
Non-discrimination and transparency
(1) |
In similar conditions and similar circumstances, interconnection shall be provided on a non-discriminatory basis and an interconnection provider shall ensure that—
(a) |
the rates charged do not vary on the basis of the class of customers to be served;
|
(b) |
it provides interconnect operators with interconnection facilities and information under the same conditions and in the same quality that it affords to its subsidiaries, affiliates, or other similarly situated telecommunications service providers; and
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(c) |
it avails to interconnect operators all necessary information and specifications related to interconnection; and
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(d) |
customers of an interconnect operator receive treatment that is no less favourable than the treatment which it affords to its own customers or the customers of its subsidiaries, affiliates, or other similarly situated telecommunications service providers.
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|
39. |
Quality of service
(1) |
Interconnection agreements shall provide for adequate capacity, service levels and reasonable remedies for any failure to meet those service levels.
|
(2) |
Parties to an interconnection agreement shall comply with all relevant service standards of the International Telecommunications Union and such other technical standards as the Commission may from time to time determine.
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|
40. |
Good faith negotiations
(1) |
Parties to an interconnection agreement shall negotiate in good faith and use their reasonable endeavours to resolve disputes as to the form and subject of an interconnection agreement.
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(2) |
An interconnect provider shall provide interconnection information to an interconnect operator upon receipt of written request.
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(3) |
An interconnect operator's request for interconnection shall be given reasonable priority over customer orders of the interconnect provider.
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|
41. |
Interconnection
(1) |
Save as may be provided for in an charges and interconnection agreement, all interconnect providers shall, charging structure. at the beginning of each year, forward to the relevant licensees a proposal for interconnection rates, terms and conditions that are just, reasonable and non-discriminatory.
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(2) |
All charges for interconnection shall be objective, independently verifiable, fair, and shall be charged for each type of telecommunications service related to interconnection and shall not be designed to facilitate cross-subsidies by an interconnect provider of its network.
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(3) |
All charges for interconnection shall be structured so as to distinguish and separately price—
(a) |
fixed charges for the establishment and implementation of physical interconnection;
|
(b) |
periodic rental charges for use of facilities, equipment and resources including interconnect and switching capacity; and
|
(c) |
variable charges for telecommunications services and supplementary services.
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|
(4) |
All interconnection rates and charges for a major telecommunications service provider shall —
(a) |
be built up from the cost of separately identifiable network elements and be computed taking into account only those costs directly attributable to interconnection plus a reasonable profit margin;
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(b) |
be sufficiently unbundled so that an interconnect operator does not pay charges that are not related to interconnection.
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|
(5) |
All charges for interconnection shall not exceed retail charges for the provision of the equivalent services or facilities to be provided by that interconnection.
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(6) |
An interconnect operator shall be free to acquire services from an interconnect provider at any retail price offered by the interconnect provider without prejudice to any rights to acquire the same or similar services under an interconnection agreement.
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|
42. |
Interconnection Procedures
(1) |
All requests by an interconnect operator for any form of interconnection shall be in writing and shall provide the interconnect provider with information in relation to—
(a) |
the form of interconnection;
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(b) |
the approximate date the interconnection is required; and
|
(c) |
an estimate of the capacity required.
|
|
(2) |
A copy of the request for interconnection referred to in paragraph (1) shall be forwarded to the Commission by the requesting party.
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(3) |
The interconnect provider shall inform the interconnect operator in writing within 15 days of receipt of the request for interconnection of its ability and willingness to supply the form of interconnection requested, whether it will be able to do so within the time frames requested by the interconnect operator, and its ability to commence negotiations on the date requested.
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(4) |
Where the parties do not agree on the date upon which to commence negotiations, the Commission shall have the power to compel both parties to commence negotiations to an interconnection agreement on a date specified by the Commission.
|
(5) |
Any disputes as to the reasonableness of a request for interconnection shall be referred to the Commission.
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(6) |
The Commission may, where it deems expedient to do so, exempt any telecommunications systems provider from the obligation to enter into an interconnect agreement where —
(a) |
such an agreement is prohibited by law;
|
(b) |
the licence issued to the interconnect provider exempts the interconnect provider from the obligation to interconnect;
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(c) |
the licence issued to the interconnect operator does not authorise the telecommunications services for which interconnection is requested;
|
(d) |
the requested interconnection is not feasible due to technical specifications required by the Commission or technical limitations inherent in the telecommunications systems to be interconnected;
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(e) |
such interconnection would endanger life or safety or result in injury or harm to the interconnect provider's property or unreasonably impair the quality of the licensed services provided by the interconnect provider; and
|
(f) |
that there are technically and commercially viable alternatives to the form of interconnection requested.
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|
(7) |
Where parties have commenced interconnection negotiations and one party claims that the other party is unwilling to negotiate or agree on any term or condition on which interconnection is to be provided, the matter shall be referred to the Commission for determination.
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(8) |
Where a party or any other person alleges that there has been a contravention or failure to comply with the provisions of the Act, these Regulations or an interconnection agreement, the Commission shall investigate and make a decision in response to the allegation.
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(9) |
Where the interconnect provider has informed the interconnect operator that it is able to provide interconnection, it shall ensure that the system conditioning and provisioning procedures required to provide such interconnection are undertaken within the time required by the interconnect operator.
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(10) |
A telecommunications systems provider shall provide six (6) months notice to interconnect operators of planned changes to its telecommunications system that may materially impact on the telecommunications services of such interconnect operators.
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(11) |
Disputes in connection with the timely provision of interconnection or notice of planned changes shall be submitted to the Commission for determination.
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43. |
Establishment and location points of interconnection
(1) |
Points of interconnection shall be established and maintained at any technically feasible points as agreed by the parties.
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(2) |
Interconnect operators shall, in sufficient detail, give three (3) years notice to interconnect providers of the points at which they wish to be interconnected to enable the interconnect provider assess the systems conditioning and other requirements for establishing such points of interconnection.
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(3) |
Points of interconnection shall be established as soon as practicable following a request but in any case not later than ninety (90) days from the date of the request.
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(4) |
Interconnect operators shall be responsible for the cost of building and maintaining the points datafill and switching capacity to support the interconnection and for the costs of transport from their points of origination to points of interconnection.
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(5) |
Where parties providing interconnect services are telecommunications systems providers, they may mutually agree on the point of interconnection and share the costs of establishing such points of interconnection.
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(6) |
Where a licensee seeking interconnection from any telecommunications systems provider requests that its facilities for interconnection be co-located with the facilities or premises of the telecommunications systems provider, such co-location shall be provided unless it is technically not feasible and the costs of such co-location shall be mutually agreed by the parties.
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(7) |
Any disputes in connection with the establishment and maintenance of points of interconnection or co-location shall be submitted to the Commission for determination.
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|
44. |
Calling line identity
(1) |
Calling line identity and all necessary signaling data shall be passed between interconnecting parties in accordance with standards prescribed by the Commission.
|
(2) |
Disputes arising out of calling line identity shall be submitted to the Commission for determination.
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45. |
Modification, suspension and termination
(1) |
Parties to an interconnection agreement shall ensure that any modification, suspension or termination of interconnection agreements does not adversely affect customers.
|
(2) |
An interconnect provider may not terminate an interconnection agreement unless—
(a) |
the termination is as a result of a fundamental breach of the interconnection agreement and the interconnection operator after having been given an opportunity to remedy the breach, has failed to do so;
|
(b) |
the interconnect provider gives reasonable written notice of its intention to terminate and—
(i) |
specifies the grounds for termination; and |
(ii) |
gives, in the case of breach, a notice of not less than three months, for the service provider to remedy the breach; |
|
(c) |
the Commission has been notified and has consented to the termination.
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|
(3) |
A party to an interconnection agreement may only suspend interconnection in exceptional circumstances and only where such suspension is intended to address a material degradation of telecommunications systems or services.
|
(4) |
Parties to an interconnection agreement which has been approved by the Commission may amend or modify such agreement by giving the Commission a copy of the proposed amendment and not less than thirty (30) working days written notice prior to the effective date the proposed amendment is to take effect.
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|
46. |
Confidentiality
(1) |
A party who receives information relating to interconnection from another party which is designated as "Confidential" shall keep the information confidential and may disclose it only—
(a) |
to employees, agents or advisers who need to know that information for the purpose of the provision of interconnection, or giving advise thereon;
|
(b) |
to persons to whom such disclosure is authorised by that other party;
|
(c) |
where such disclosure is authorised or required by law; and
|
|
(2) |
Confidential information relating to interconnection of a party received by another party, or business information generated by the telecommunications system of a party as a result of interconnection, shall be used solely for the purpose of providing interconnection, and shall not be disclosed to any person involved in the development or provision of retail services of the other party or its subsidiaries or affiliates.
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(3) |
The provisions relating to confidentiality of any matter in an interconnection agreement shall not prevent the disclosure by the Commission of any provisions therein due to public interest or pursuant to a legal process.
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47. |
Interconnection disputes
(1) |
The submission of interconnection disputes to the, Commission shall include an application from the submitting party requesting the Commission to resolve the dispute, which application shall contain—
(a) |
a statement of any issues to which there are disagreement;
|
(b) |
a statement of the issues that are disputed and requires the Commission's action;
|
(c) |
the views of the applicant and a statement of reasons in support thereof; and
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(d) |
any other information as the Commission may require.
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|
(2) |
The party against whom the application is filed shall have thirty (30) days to respond to the application and such response shall state the views of that party and a statement of reasons in support thereof.
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(3) |
Nothing in this regulation shall prevent the parties from reaching an agreement and withdrawing the dispute by submitting the negotiated agreement to the Commission for approval.
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48. |
Approval of Interconnection agreements
(1) |
Parties to an interconnection agreement shall file with the Commission an application for the Commission's approval of each proposed interconnection agreement at least thirty (30) working days before the date the proposed agreement is to take effect.
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(2) |
Parties to an interconnect agreement shall file with the Commission an application for the Commission's approval of the renewal or extension of an existing interconnection agreement at least thirty (30) working days prior to the expiry of the agreement.
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(3) |
The Commission may request for any information from the parties to an interconnection agreement that it deems necessary to evaluate the terms and conditions and the charges set forth in the agreement, and may request that the interconnection agreement be modified as specified by the Commission in writing.
|
(4) |
If the Commission does not request information or modifications within thirty (30) days of receipt of an application for approval of an interconnection agreement, or the renewal thereof, and does not make a decision on the interconnection agreement within that period, then the agreement shall be deemed to have been approved.
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(5) |
Upon receipt of a request by the Commission to modify an interconnection agreement or any part thereof, the parties shall negotiate and submit a revised interconnection agreement to the Commission within ten (10) working days of receipt of the Commission's request.
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(6) |
Where the parties are unable to agree on the requested modification, the Commission may, if it determines that a negotiated agreement is not possible, impose an interconnection agreement on the parties with the charges payable thereunder as set by the Commission.
|
(7) |
If the Commission does not request additional modifications or does not make a decision on the revised interconnection agreement within five (5) working days upon receipt of the revised interconnection agreement, the revised agreement shall be deemed to have been approved.
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(8) |
A party who is aggrieved by the decision of the Commission may, within fifteen (15) days from the date of the Commission's decision, appeal to the Tribunal.
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49. |
Leased capacity
(1) |
Any telecommunications service provider who intends to acquire leased capacity in order to provide licensed services shall request the provision of such capacity from a licensed network infrastructure operator.
|
(2) |
In the event of a request referred to in paragraph (1) of this regulation —
(a) |
the telecommunications service provider shall present a request in writing for leased capacity to a licenced network operator, which request shall specify the requested location, quantity and other technical requirements;
|
(b) |
a licensed network operator shall reply in writing to the telecommunications service provider within fifteen (15) days after receipt of the request stating whether the required capacity can be supplied in accordance with the requested technical requirements, the offered price, and the date upon which the installation of the requested capacity shall be completed, which date shall not be later than ninety (90) days after receipt of the request;
|
(c) |
a telecommunications service provider may apply to the Commission for permission to establish its own network or infrastructure upon failure by the licenced network operator to reply to a request within fifteen (15) days of receipt, or to complete the installation of the required capacity within ninety (90) days of receiving the request or to provide such capacity at a reasonable price or to provide such capacity at quality or technical standards which comply with telecommunication systems requirements.
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|
(3) |
Where a licenced network or infrastructure operator is unable or unwilling to provide such service to a telecommunications service provider within ninety (90) days of receiving the request or at a reasonable price the Commission may, upon application, authorise such telecommunications service provider to establish the required capacity for its own use:
Provided that where the operator licensed to provide such infrastructure for any cause, is unable to provide such leased capacity within the prescribed time, it may apply to the Commission for an extension of time within which to provide such capacity to the telecommunications service provider.
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|
PART VIII – TYPE APPROVAL OF TERMINAL EQUIPMENT
50. |
Purpose
Regulations in this Part shall ensure that the connection of apparatus to the telecommunications networks does not damage or jeopardise the integrity of the telecommunications network.
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51. |
Categories of network and terminal equipment requiring type approval
(1) |
All telecommunications and radio communication equipment shall prior to their installation or connection to any public switched telecommunication network in Kenya be submitted to the Commission for type-approval.
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(2) |
The Commission shall grant type-approval for each type of equipment once and subsequent users of the same model of equipment shall not apply to the Commission for type approval:
Provided that any changes in models, design or specification of any equipment which has been type approved by the Commission shall be resubmitted for type approval.
|
(3) |
The categories of network and terminal equipment that require type approval shall include—
(c) |
private automatic branch exchange (PABXs)(including small business systems and key systems);
|
(h) |
radio communication equipment; and
|
(i) |
any other customer premises equipment to be attached to any part of licensed telecommunications or radio communication network.
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|
|
52. |
Type approval Procedure
(1) |
All applications for type approval of any equipment shall be submitted in the prescribed Form No. 2 set out in the First Schedule and shall be accompanied by—
(b) |
technical specifications and manuals of the equipment; and
|
(c) |
where required, a sample of the equipment in quantities as may be determined by the Commission.
|
|
(2) |
The Commission shall not be obliged to return to the applicant any samples of equipment and associated literature submitted for the purposes of type approval.
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(3) |
Where the equipment submitted for type approval is a single channel low capacity radio equipment, the Commission shall evaluate the application and convey its decision to the applicant within thirty (30) working days of receipt of the application:
Provided however that where the equipment submitted for type approval is a switch or switches of over one thousand (1000) ports, the Commission shall convey its decision to the applicant within sixty (60) days of receipt of the application for type approval.
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|
53. |
Applications for type approval
An application for type approval shall provide for —
(a) |
the name of the equipment;
|
(b) |
the name of the manufacturer;
|
(c) |
the intended use within Kenya;
|
(d) |
the name, address, and authorized representative of the individual or organization that will hold the type approval certificate; and
|
(e) |
any other information that the Commission may require.
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54. |
Language
All applications for any licence and all other documentation submitted therewith shall be in english language.
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55. |
Submission of samples of equipment for testing
(1) |
The Commission may type accept any equipment that has received type approval from another country or jurisdiction that is recognised by the Commission:
Provided however that the applicant for type acceptance shall submit a sample or samples of the equipment and copies of test results and type approval certificate from that country or jurisdiction at the time of the submission of the application for provisional acceptance.
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(2) |
The Commission may, on its own motion or upon an application, institute proceedings to determine whether technical standards from other countries or jurisdictions should be recognised in Kenya for, purposes of exempting any equipment from type approval or testing requirements.
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56. |
Provisional type approval
(1) |
Any person may submit to the Commission an equipment for provisional type approval.
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(2) |
Where the Commission has determined that an equipment which is the subject of an application for provisional type approval complies with the requirements for type approval, it may grant provisional type approval for a period of six (6) months on terms and conditions as it may determine.
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(3) |
The Commission may, where it deems necessary, when granting provisional type approval to any equipment limit the number of units of such equipment that an applicant can hold until final type approval is given.
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(4) |
The Commission may extend the grant of the provisional type approval for one further period of six (6) months when it is of the view that the performance of such equipment within the provisional type approval period is satisfactory.
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|
57. |
Final type approval
(1) |
All applications for final type approval shall be submitted in the prescribed Form No. 3 set out in the First Schedule five months after the grant of provisional type approval and shall indicate the date of grant of provisional approval:
Provided that no provisional type approval shall lapse or expire while an application for final type approval is pending with the Commission.
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(2) |
Final type approval shall be granted where the Commission is of the view that the grant of such final type approval—
(a) |
is in the public interest; and
|
(b) |
will not lead to harmful interference to any telecommunications and radio communication network or be a risk to human health or the environment.
|
|
(3) |
The Commission shall inform the applicant in writing of the final type approval of an equipment or apparatus and shall issue the applicant with a registration number to display on the equipment or apparatus when the equipment or apparatus is being sold and used.
|
(4) |
Where the Commission is of the view that an equipment or apparatus should not be type approved, it shall notify the applicant in writing of its decision not to type approve the equipment or apparatus and shall provide reasons for such refusal.
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|
58. |
Revocation of type approval
(1) |
The Commission may, on its own motion or upon a complaint by any person, conduct investigations regarding the working or use of any equipment or apparatus which has been given provisional or final type approval and may cancel such type approval where it of the view that—
(a) |
a licensee has violated provisional type approval conditions;
|
(b) |
the equipment or apparatus is causing or is likely to cause harmful interference to telecommunications network or is a risk to human health or the environment.
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|
(2) |
Any person who is aggrieved by the decision of the Commission made under this Part may appeal to the Tribunal.
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59. |
Complaint procedures
(1) |
Any person may make a representation in respect of the working of any equipment that has been type approved or may object to the type approval of any equipment and may submit such representation or objection to the Commission in writing stating—
(a) |
the name and address of the complainant;
|
(b) |
the name (and address if known) of the person against whom the complaint is made; and
|
(c) |
facts, including supporting data, where available, showing that the apparatus does not conform to the requirements of this Part and that the apparatus may cause harmful interference to telecommunications and radio communications network or is a risk to human health or the environment.
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(2) |
The Commission shall forward a copy of the representation or objection to the applicant or holder of a type approval certificate and give the applicant or holder an opportunity to give evidence to rebut the representation or objection.
|
(3) |
The Commission shall consider such representations or objections when considering the grant of type approval or in evaluating the working of any equipment or apparatus for which has been type approved.
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60. |
Import and sale restrictions
The Commission may, in consultation with the Kenya Revenue Authority, restrict the importation into or sale within Kenya of any telecommunications or radio communication equipment or any other apparatus if it is of the opinion that such equipment or apparatus can cause damage or harmful interference to telecommunications or radio communication networks or is a risk to human health or the environment.
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61. |
Exemptions from type approval
The Commission may, where it deems expedient, exempt any telecommunications or radio communication equipment that is temporarily imported into Kenya from type approval requirements.
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PART IX – NUMBERING
62. |
Management and administration of national numbering plan
The Commission shall be responsible for managing and administering the national numbering plan.
|
63. |
Considerations when assigning or publishing numbers
Prior to the assignment and publication of any numbering plan, the Commission shall ensure that such numbering —
(a) |
allows sufficient numbers to be made available to a licensee;
|
(b) |
are allocated without undue delay;
|
(c) |
allows for the inclusion of as few digits as practicable;
|
(d) |
does not confer an undue advantage on any operator;
|
(e) |
keeps the cost of changing any of the telecommunications systems in order to accommodate the number plan within reasonable limits; and
|
(f) |
minimise any inconvenience that may be caused by implementation of the numbering plan to a licensee and to persons using the telecommunications systems.
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(2) |
The numbering scheme of each licensee shall comply with the Commission's guidelines concerning the implementation of the national numbering plan.
|
(3) |
The Commission may in assigning or allocating numbers to licensees charge fees for such allocation or assignment.
|
(4) |
For purposes of this Part —
"numbering plan" means the method of assigning NNX codes to provide a unique telephone addresses or identities to a user-network interface.
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PART X – POSTAL AND COURIER SERVICES
64. |
Application
The Regulations in this Part shall apply to all postal service licensees.
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65. |
Interpretations
In this Part, unless the context otherwise requires—
"basic postal services" means reserved postal services such as postal stamps, private letterboxes and acceptance, conveyance and delivery of letters weighing up to 350 grams;
"commemorative stamps issue" means the issuance of postage stamps as a mark of honour to events or matters of national or international importance and mainly used for philatelic purposes with a validity period of five years from the date of issue;
"course of transmission" means in case of, for a postal article, the time from the delivery of the postal article to the licensed postal service operator until the time of its delivery to the addressee, its return to the sender, or its disposal under the applicable provisions of these Regulations;
"definitive stamp issue" means stamps depicting nature or natural heritage and which are valid for a maximum of ten years from the date of issue;
"postal services licensee" means the Postal Corporation of Kenya and all organisations licenced to provide unreserved postal services, including courier companies, transporters, freight, forwarders, delivery companies and direct marketing companies which handle postal articles;
"reserved postal services" means —
(a) |
the collection, transport, sorting, and delivery, for hire or reward of letters and postcards weighing up to 350 grams, but not including exempted letters sent by licensed courier, letters accompanying goods at the time of delivery, newspapers, magazines, books, non-addressed leaflets, catalogues, and trade announcements letters delivered otherwise than for reward letters delivered by an employee of the sender letters containing any writ or proceeding out of court or any legal instrument of any kind and, letters carried to the premises of a provider of electronic mail service for the purpose of transmission by electronic mail;
|
(b) |
the production and issuance of postage stamps, pre-stamped envelopes, aerograms, and international reply coupons bearing the official national coat of arms or the words "Republic of Kenya," "Kenya," or "Kenya Post"; and
|
(c) |
the rental or lease of private letter boxes or bags;
|
"universal postal services" means consistent supply of basic postal services at affordable prices at all points within the country;
"universal service obligations" means obligations assumed by the public postal licencee by virtue of a licence granted by the Commission under the Act to provide, as far as possible, basic postal services to all persons within Kenya at affordable prices that are not necessarily cost-based;
"unreserved postal services" means courier services, counter services, money orders, electronic bill paying parcel collection transport and delivery, expedited mail service, overnight mail services, and other handling of postal articles.
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66. |
International and regional arrangements
(1) |
The provisions in this Part shall be carried out in accordance with the terms of any international or regional convention or agreement to which Kenya is a party.
|
(2) |
Where a postal licensee conduct international postal services, the Commission shall ensure that such a licensee conduct their operations in accordance with the rules, regulations and procedures of the conventions and agreements to which Kenya is a party, except to the extent that Kenya's adherence thereto is limited by a reservation.
|
|
67. |
Delivery of Postal articles
(1) |
A postal article shall be deemed to have been delivered—
(a) |
to the addressee, if it is delivered into a private letter box or bag of the addressee, leaving it at the house, or office of the addressee as set out thereon, or with the employee or agent or other persons authorised to receive it and, where the addressee is a guest or is a resident at a hotel, hostel or lodgings, if it is left with the proprietor or manager thereof or with his agent; or
|
(b) |
to a postal service licensee if it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorised to receive it.
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|
|
68. |
Licensing of postal services operators
(1) |
No person shall operate a reserved or unreserved postal services except in accordance with a licence issued under the Act.
|
(2) |
The Commission shall prescribe the terms and conditions of all licences, as it considers consistent with the provisions of the Act, these Regulations and such other circumstances as it may deem necessary.
|
|
69. |
Applications for licence
(1) |
Any person may, subject to the provisions of the Act and these Regulations, apply for a licence from the Commission to operate postal services.
|
(2) |
Applications for postal service licences shall be made in writing in the prescribed form No. 1 set out in the First Schedule.
|
(3) |
In considering any application for a postal licence, the Commission may require the applicant to produce such evidence or information to show his or her capacity to operate postal services as the Commission may deem necessary.
|
(4) |
The Commission may require applicants for postal licences to provide evidence of ownership of the firm or company applying for the licences in support of the application and any person who knowingly gives false information shall be guilty of an offence.
|
(5) |
Applicants for a postal licence shall submit to the Commission—
(a) |
particulars as to the services to be operated; and
|
(b) |
the geographical area for which postal services are proposed to be carried out.
|
|
(6) |
All applications for a postal licence shall be accompanied by the prescribed fees.
|
(7) |
All licences issued under this regulation shall be in writing and unless previously revoked in accordance with any terms contained in the licence or as a result of a contravention of the Act or these Regulations or the terms of the licence, shall continue in force for such period as may be specified therein.
|
|
70. |
Conditions of Licence
(1) |
A postal service licence shall set out the terms and conditions upon which it is granted and shall require the provision by the licensee of such postal services as are specified in the licence and may include the provision of services to rural or sparsely populated areas or other specified areas.
|
(2) |
Postal licences shall not be used for purposes other than for which it is issued and any other use of the licence, or contravention of the conditions stated therein, shall constitute an offence.
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|
71. |
Non-discrimination
(1) |
Postal licensees shall not take any action in the provision of postal services that has or is likely to have the effect of giving an undue preference to, or causing undue discrimination against, any person or category of persons.
|
(2) |
If it appears to the Commission that a licensee is taking or intends to take any action which has or is likely to have the effect of giving undue preference to, or causing undue discrimination against any person or category of persons, the Commission may, after having given such licensee an opportunity to be heard, direct the licensee through a written notice to cease or refrain from taking such action, as the case may be.
|
(3) |
Failure to comply with an order of the Commission issued under this regulation shall constitute an offence.
|
|
72. |
Licence fees
(1) |
If the Commission is satisfied that an applicant has fulfilled all the conditions for granting a licence and upon payment to the Commission of the prescribed fees, the Commission shall issue such an applicant with a licence.
|
(2) |
Every postal licensee shall, within the prescribed time, pay the Commission the fees specified in the licence and any licensee who fails to pay such fees shall be liable to pay such penalties as the Commission may prescribe.
|
|
73. |
Licence terms
All postal licences issued under the Act shall be valid for the period stated in the licence or for such period as may be determined by the Commission.
|
74. |
Licence modification and renewal
(1) |
Pursuant to section 82 of the Act, the Commission may, modify the conditions of any licence if it considers such modification necessary —
(a) |
to achieve the objectives of the Act;
|
(c) |
in the best and justified interests of the licensees; and
|
(d) |
in order to ensure fair competition and equal treatment.
|
|
(2) |
Where the Commission intends to modify all or any condition of a postal licence, the Commission shall publish a notice in the Gazette stating the reasons for the intended modification and giving not less than sixty days period for the licensee or other interested parties to make any written representation regarding the intended modification.
|
(3) |
The Commission shall give due consideration to any representations made by the licensee.
|
(4) |
Where the modification of a licence condition is at the instance of the Commission and such modification is likely to cause undue harm to the licensee, the Commission may grant such licensee a reasonable period to comply with the modification terms of the licence.
|
(5) |
The Commission may, if it considers appropriate to do so in furtherance of the objectives of the Act, modify the terms of a postal licence on application of a postal licensee:
Provided that where such modification is at the request of a postal licensee, such licensee shall meet the costs of the modification.
|
(6) |
Any person who is aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within fifteen (15) days from the date on which the decision is made.
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|
75. |
Suspension and cancellation of licences
(1) |
Every postal licence shall contain provisions for the suspension or revocation of the licence.
|
(2) |
Notwithstanding the provisions of paragraph (1), the Commission may suspend or revoke a licence on grounds of—
(a) |
serious and repeated breach of the licence conditions;
|
(b) |
discovery of any fraud or intentional misrepresentation by a licensee at the time of applying for the licence;
|
(c) |
engagement in or support of unlawful activities by the licensee; or
|
(d) |
cessation of the licensee to be a person who is eligible to hold such license; or
|
(e) |
failure to pay the prescribed fees.
|
|
(3) |
Unless provided otherwise in the licence, the Commission shall give a licensee sixty (60) days written notice of its intention to suspend or cancel a licence and shall specify in such notice the reasons for the intended suspension or cancellation of the licence.
|
(4) |
The licensee or any interested party may make representations against such suspension or cancellation to the Commission.
|
(5) |
After due consideration of such representations, the Commission may—
(a) |
prescribe the time during which the licensee may remedy the offending act or conduct; or
|
(b) |
require the payment of a penalty or fee as specified in the Act or these Regulations.
|
|
(6) |
Where a licensee has not complied with the conditions set by the Commission is paragraph (5) of this regulation, it may—
(a) |
suspend the licence for a specified period of time; or
|
|
(7) |
Any person aggrieved by the decision of the Commission, under this regulation may within fifteen (15) days from the date on which the decision is made appeal to the Tribunal.
|
|
76. |
Transfer or lease of licence
(1) |
No postal licence shall be transferred or leased without the written consent of the Commission.
|
(2) |
Where a licensee intends to transfer or lease a postal licence, he shall make an application to the Commission.
|
(3) |
An application for the transfer or lease of a licence shall be in the prescribed form completed by the person to whom the licensee intends to transfer or lease the licence.
|
(4) |
The Commission shall in considering an application for transfer or lease of a licence have regard to the same terms and conditions as when considering the grant of a new licence:
Provided that the Commission may at its discretion reject an application made under this regulation.
|
|
77. |
Lapse and renewal of Licence
(1) |
An application for renewal of a licence shall be made in accordance with the provisions of each licence.
|
(2) |
In considering an application for renewal of a licence, the Commission shall have regard to the fulfilment by the licensee of the licence terms and conditions in the previous licence period.
|
(3) |
An application for renewal of a public postal licence shall be made at least six months before the expiry of the licence.
|
(4) |
A licensee may, during the prescribed period, apply for the renewal of his or her licence.
|
(5) |
Where a licensee has complied with the Act, these Regulations and the licence, a licence shall continue to be valid until such time as a decision has been made regarding the application for the renewal.
|
|
78. |
Operation of reserved postal services
(1) |
The Commission may from time to time require a person licensed to provide reserved postal services to provide such services to areas which are not adequately served.
|
(2) |
A licensee for the provision of reserved postal services may provide such services through a contract, agency or franchise without such agent or franchisee being required to hold a licence under the Act.
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(3) |
A licensee designated as a public postal licensee shall maintain separate books of account for reserved postal services and unreserved postal services and shall not cross-subsidise the prices for any service it offers in the market for unreserved postal services with revenue from the sale of reserved postal services.
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79. |
Tariffs for unreserved postal services.
(1) |
All postal licensees shall have the power to set tariffs for postal services which are open to competition.
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(2) |
All tariffs for unreserved postal services shall be made available to the public by displaying them in conspicuous places in post offices or in the offices of licensees.
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(3) |
It shall be an offence under this regulation not to display tariffs for postal services at all or in a conspicuous place.
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80. |
Tariffs for reserved postal services
(1) |
Tariffs applicable to reserved postal services and the standard of delivery of such services shall be determined by the Commission from time to time.
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(2) |
Any review of tariffs relating to reserved postal services shall be implemented upon approval by the Commission.
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(3) |
In considering review of tariffs for reserved postal services, the Commission shall ensure that the tariffs are based on the cost of providing efficient service in accordance with the licence and shall further ensure that such tariffs do not include—
(a) |
surcharges prevailing solely as a result of the public postal licensee's exclusive right to provide reserved postal services;
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(b) |
anti-competition discounts likely to be prejudicial to licensees for unreserved postal services;
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(c) |
variation in rates that create any advantage for individual users within the same class of service in relation to users of postal services of the same type; and
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(d) |
any other consideration as the Commission may deem necessary:
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Provided that the Commission may authorise the levying of tariffs that are not based on costs of providing such service where the public postal licensee presents a case to the Commission that such charges are justifiable due to any statutory obligation or other objectively verifiable criteria.
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(4) |
The Commission shall, at least thirty (30) days before approving any tariffs, give notice to customers in the Gazette and in such manner as the Commission may consider necessary—
(a) |
specifying the name and particulars of the licensee or class of licensees providing the postal service to which the tariffs relate;
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(b) |
stating the reasons for the proposed review of the tariffs and setting out the proposed tariffs;
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(c) |
specifying the time within which representations or objections may be made to the Commission on the proposed reviews;
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(d) |
informing the customers of the new tariffs at least fourteen (14) days before implementation.
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81. |
Unreserved postal services fees and operations
(1) |
All licensees of unreserved postal services shall operate at least one physical address which shall he registered with the Commission and any change of such registered office shall be notified to the Commission within a period of fourteen (14) days of such change.
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(2) |
Subject to the Act, these Regulations and licences, the Commission shall have the power to categorise postal licensees and to prescribe fees payable to the Commission by such licensees.
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82. |
Consumer complaint procedures
(1) |
All licensees shall provide a mechanism through which consumers may lodge complaints concerning the services given by such licensee.
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(2) |
Not withstanding the generality of paragraph (1), the procedures for lodging complaints shall provide for—
(a) |
notification to customers of the right to complain;
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(b) |
availability of complaint form or any other written method for raising complaints;
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(c) |
maintenance of a log of consumer complaints.
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(3) |
All licensees shall file with the Commission within sixty days after the grant of a licence their complaint handling procedures.
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83. |
Universal service obligation
(1) |
The Commission shall from time to time provide targets to facilitate the achievement of universal service obligation.
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(2) |
In providing targets for the fulfillment of universal service obligations by postal licensees, the Commission shall have regard to—
(a) |
measurable quantity and quality of service standards for postal services in relation to customer satisfaction;
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(b) |
speed, reliability and security of the service; and
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(c) |
accessibility to and affordability of universal postal services.
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(3) |
The provision of universal posfal services shall be the responsibility of the public postal licensee:
Provided that the Commission may require any licensee for unreserved postal services to provide any or all universal postal services.
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(4) |
In providing universal postal service obligations, the Commission may require the public postal picensee to provide such services in accordance with standards as may be prescribed by the Commission from time to time.
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(5) |
The public postal licensee shall produce at least bi-annually directories of private letter boxes and bags and failure to produce such directories shall constitute a violation of a licence condition for which the Commission may levy a penalty.
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(6) |
Any postal licensee who fails to provide universal postal services as stated in the licence or as required by the Commission shall be liable to a penalty of six thousand shillings for every month or part thereof during which such failure continues.
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