CA SETS THE STAGE FOR EFFICIENT SPECTRUM USAGE IN KENYA

By Rose Njeru,John Syekei Monday, February 10, 2020
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The Communications Authority of Kenya (CA) recently published the Frequency Spectrum Management Guidelines, 2020 (the Guidelines) that will form the basis for spectrum management in Kenya; this includes radio frequency licensing strategies, requirements and procedures in the management of national radio spectrum resource and related satellite orbital slots.

There are a number of key provisions of these guidelines that individuals and companies in the broadcasting sector will need to be acquainted with.

 

What do the Guidelines say?

What are the potential implications?

Spectrum Pricing

The CA will have discretionary powers in setting the spectrum fees in a manner that enables efficient use of this scarce resource. In determining the pricing methodology for a given spectrum band, the CA will employ market-based and administrative mechanisms, as appropriate.

The CA will also have the power to levy fees on spectrum use to ensure the optimal use of spectrum.

The Guidelines provide that the CA will publish an approved frequency fee schedule which is likely to shed light on how spectrum will be priced. The pricing will likely have an effect on the number of entrants into the market and will ensure more efficient use by cutting out ‘frequency-hoarders’.

Spectrum Use & Assignment

The Guidelines have various provisions with respect to spectrum use and management in Kenya that may be relevant as follows:

a.    Spectrum Sharing: the CA will promote the use of radio frequency spectrum on a shared basis in terms of time or location, where it is technically feasible and depending on the category of services.

b.    Revocation for non-use: the CA will have the authority to revoke frequency assignments of licensees that fail to utilize the frequency within the stipulated period. We note that the Kenya Information and Communications Act (KICA) stipulates a period of one year for usage of an assigned frequency.

c.     Spectrum Fees: The guidelines stipulate that the levying of fees will be based on spectrum utilization and the CA will have the mandate to use the spectrum pricing methodology to reward efficient use of spectrum and penalize efficient use.

d.    Spectrum Repossession: the CA will be empowered to repossess any spectrum that has not been put into use following expiry of the period stipulated for the licensee to put the frequency into use and may assign the repossessed spectrum.

e.     Surveillance: the CA will be empowered to carry out surveillance audits to verify utilisation of the allocated frequencies and support the frequency planning function.

f.    Auction: The assignment of radio frequencies will be conducted on the basis of the prevailing assignment regime. In the case of market-based mechanisms in the form of auctions, applicable rules will be auction-specific and will be prescribed during the design of a specific auction.

It has become increasingly essential for spectrum/frequency license holders to ensure that they maximize the use of their allocated frequencies. Failing this, the CA will have the mandate to take action against them including repossession or charging higher spectrum fees. License holders should thus undertake audits of their frequency use and where their use is not optimal, either maximize on the use or surrender the frequencies not in use to minimize potential sanctions by the CA.

Where the CA is conducting a spectrum auction, it will be essential for participants to find out the applicable rules for the auction since these are bound to change depending on the auction. This will help avoid any appeal or review attempts against the allocation decisions made by the CA.

Frequency Assignment Revocation

The CA will revoke frequency assignments where the licensees fail to pay the requisite license fees within a stipulated period; fail to renew the license; fail to utilise the frequency within the stipulated period; or fail to observe other actions as stipulated in the authorization instrument (license), the Act and/or the Regulations.

Licensees will need to ensure that they pay the requisite license fees in time, make renewal applications in time, observe the license conditions upon allocation of a frequency, and most importantly, utilise the frequency within the period that will have been stipulated. The CA may revoke the frequency assignment if these requirements are not adhered to.

Special Spectrum Use

Entities whose duties pertain to National Security, public safety, humanitarian and emergency services may be exempted from paying the requisite spectrum fees. Guidelines on exemptions will be prescribed by the Authority.

The Authority may include discounting incentives on the pricing of spectrum in rural and marginalized areas to encourage the deployment of services in these areas.

Individuals and companies that wish to invest in spectrum in low income, marginal and rural areas will likely be incentivized to make the investments as the CA will have the discretion to discount the spectrum fees.

Naturally, individuals and Companies that provide humanitarian or emergency services may also apply for an exemption from paying the requisite spectrum fees. It is not clear whether this would include religious spectrum operators which sometimes provide humanitarian services. The guidelines on exemptions will be key in understanding exactly which spectrum operators are regarded as those which provide humanitarian services.

Sandbox

The CA may allow access to radio spectrum on temporary basis for trials, experimental or research purposes provided that there is sufficient justification for an application for that purpose and on such conditions as the CA may impose.

Innovative startups and research institutions in the telecommunications sector can now beta test their innovations/inventions in a more practicable way by applying for temporary access to radio spectrum from the CA. This will encourage research and development in the sector, as well as pave the way for robust innovation.

Enforcement

The CA will continuously monitor all emissions to check against compliance with license conditions.

The CA will inspect radio network installations, from time to time, to check compliance against license conditions.

The CA will carry out surveillance audits to verify the utilisation of the allocated frequencies and support the frequency planning function.

The CA will take appropriate enforcement action against any unlicensed user of the radio spectrum or user operating outside the parameters of their license conditions.

The broad enforcement mandate given to the CA means that all licensees must ensure that they comply with not only the Guidelines, but with KICA and the applicable regulations and rules at all times.

 

The guidelines are geared towards increasing and promoting greater spectrum efficiency in the utilisation and management of radio frequency spectrum in Kenya. The Guidelines are a positive step towards improving connectivity across Kenya and growing Kenya’s economy through increased interconnectedness. The Guidelines align Kenya’s regulatory framework with the best practices of developed countries in the planning and management of spectrum. Notably, the Guidelines recognize the increased demand for connectivity and proposes various ways of ensuring the optimum use of spectrum.

It will be important moving forward to conduct internal assessments and audits against these guidelines, to ensure that spectrum users are in compliance with the guidelines.