Legislators are pursuing a draft law named the Kenya Information and Communications (Access and Infrastructure Sharing) Regulations, 2022. The regulations cover guidelines for infrastructure sharing, infrastructure sharing agreements, exemption from sharing of a particular element of the infrastructure, network access, and network facilities, as well as dispute resolution and penalties.
Goals for the regulations
The regulations seek to meet the following goals:
- create a framework for better cooperation in infrastructure sharing
- eliminate unnecessary duplication of Information, Communications, and Technology infrastructure
- maximize the use of the existing and future Information, Communications, and Technology infrastructure
- minimize negative public health, safety, and environmental impacts caused by the proliferation of infrastructure installations
- promote competition in the provision of Information, Communications, and Technology networks and services
- promote orderly and effective town and country planning in terms of Information, Communications, and Technology.
These goals are essential in a market where some telcos have an upper hand over others. The dominance issue in the telecoms is a common thing, and in 2021, the Competition Authority of Kenya (CAK) met with the Senate Standing Committee on ICT that sought to make a determination about Safaricom’s true standing.
During the meeting, the CAK argued that Parliament should pursue laws that will compel carriers to share their infrastructure but on a commercial basis.
The CAK added that infrastructure sharing could potentially fill existing gaps in terms of competition and offer consumers more value and options.
Conditions for sharing of general infrastructure
According to the proposed regulations, a telco deploying infrastructure for its own use shall provide for at least 30% additional capacity beyond the projected owner’s needs.
The added capacity shall be availed for sharing with other licensees on a non-discriminatory basis.
The regulations further add that publicly owned infrastructure shall be operated and availed to infrastructure seekers on the principle of open access and non-discrimination.
At the same time, the Communications Authority of Kenya (CA) may impose specific infrastructure sharing obligations relating to an infrastructure provider who has significant market power or is declared dominant in the relevant market segment to ensure effective occupancy.
However, a telco may not be compelled to share infrastructure if it meets the following exemptions:
- infrastructure sharing is prohibited by law
- the infrastructure seeker does not have the appropriate license to operate the requested infrastructure
- the request is rendered impossible because of technical specifications or capacity limitations
- the infrastructure sharing would endanger the environment, life, or safety or result in injury of any person or cause harm to other property.
Penalties
The regulations propose that a telco that does not adhere to the regulations shall be liable to a fine equivalent or not exceeding 0.2 percent of the annual gross revenue turnover based on the last accounts submitted by the operator.
More details about the draft can be read here.
