Kenya is part of the East African Community (EAC), an intergovernmental organisation comprising five countries: Burundi, Kenya, Rwanda, Tanzania and Uganda.  Kenya’s capital is Nairobi, an ever-expanding commercial hub and now one of the most prominent cities in Africa, both politically and financially, with many major multinational companies locating offices there. The Nairobi Stock Exchange (NSE) is one of the largest in Africa and the second oldest on the African continent.

Kenya’s telecommunications sector, a dynamic and fast growing market, is set to become a main contributor to its economic growth in the next five years.  A recent report released by global research company, Pyramid Research, noted that demand for telecom services is driving growth of the sector with competitive tariffs and a battle of promotions being the driving motivators. The telecom market is expected to grow steadily in local currency terms as operators jostle for market share.  

Broadband

In January 2013, the CCK released a draft of its National Broadband Strategy for public review. The main features of this Strategy included improvement of infrastructure, plans to digitalise existing local content, capacity building and provision of an enabling regulatory framework.

Telkom Kenya is the local fixed line operator.  Local loop unbundling (LLU), that is, the unbundling of the local access lines that connect a customer to its local exchange (the local loop), is in place. However, Telkom Kenya’s fixed network has seen a reduction in the number of subscribers over the past five years as the current owners focus more on the mobile wing of the business. Fixed-line broadband is provided as an xDSL service but due to the inherent problems associated with the fixed line network, such as the theft of copper cables, the service has become very expensive to offer.

The Communications Commission of Kenya (CCK) releases quarterly statistics on the level of broadband penetration in Kenya. As of April 2013, the statistics published by the CCK for the second quarter of 2013 indicated as follows:  “In the Internet/Data market segment the number of subscriptions rose by 11.5 percent during the period to reach 9.4 million from 8.5 million recorded during the previous quarter.

Compared to the same period of the previous year, there was an increase of 75.1 percent. Mobile data/internet continued to dominate the internet market contributing 99.0 percent of the total Internet/data subscriptions. The number of estimated internet users was recorded at 16.2 million up from 14.5 million posted the previous quarter, representing an increase of 11.6 percent during the period. Internet penetration went up by 4.3 percentage points to reach 41.1 percent up from 36.8 percent during the previous period.

The number of broadband subscribers declined by 0.3 percent during the period to stand at 1,002,701 down from 1,006,071 posted during the previous period. The decline is attributed to a reduction in the number of fixed terrestrial broadband subscribers. The fixed line network recorded a marginal growth of 1.3 percent during the period to reach 251,576 lines. This growth was brought about by a 4.5 percent increase in the subscriptions of the fixed wireless services from 177,910 to 185,857 during the quarter under review. The fixed terrestrial lines however declined to 65,710 from 70,390 lines recorded during the previous period, representing a 6.6 percent drop”.

It is evident from these statistics that fixed-lined services are having a relatively minimal effect on broadband rollout in Kenya. Aside from the challenges faced by the fixed-line operator, Telkom Kenya, including vandalism of copper networks, stiff competition from mobile operators, and high infrastructure costs, wireless broadband initiatives are receiving a significant degree of government support.

The CCK has licensed the use of parts of the 800 MHz band, and the 2.6 GHz and 3.5 GHz frequency bands.  Although the majority of the 800 MHz band will only be capable of being used for the provision of IMT services after the completion of the analogue television digital migration process, some spectrum (2x5MHz) has been assigned to Telkom Kenya for its CDMA network for the provision of voice and broadband data services. The 2.6 GHz band is in use by the national security apparatus for point to point fixed links. The 3.5 GHz band has been allocated for Wimax use. Safaricom has a Wimax network operating on a total of 21 MHz acquired through the secondary market. Other companies with spectrum assignments in this band are Kenya Data Network, Access Kenya and Telkom Kenya.

Digital Migration

The digital migration process for the migration of analogue television services to a digital platform kicked off on 9 December 2009. Kenya is currently in the simulcast period where both analogue and digital signals are being transmitted.  The digital switch-off date has not yet been set. The original deadline date of 30 December 2012 was disputed in the High Court of Kenya by the Consumers Federation of Kenya (COFEK).  The latest deadline date that has been set is 17 December 2015; however, it is expected that full migration will occur earlier than this.

The plans for licensing of the anticipated digital dividend, that is, the spectrum that will be freed up once the digital migration process has been completed, including relevant parts of the 800 MHz band, are not yet in place and, as yet, none of this spectrum has been licensed.

There is a list of approved and licensed vendors who import set top boxes for local distribution and sale in the Kenyan market.  As set top boxes are not publicly funded, in the budget for 2012/2013’s financial year, the Minister of Finance imposed a zero tax rate on set top boxes with the result that importers and retailers are able to offer considerably lower pricing offering Kenyan consumers affordability.  The standard used for set top boxes in Kenya is DVB-T2.

Digital Kenya, the brand name for the migration process in Kenya, has published minimum specifications regarding set top boxes that may be sold or used in Kenya.

In the current phase of migration, consumers will be able to receive 12 free to air channels which consist mainly of local and some international channels on the KBC/SIGNET signal and, post-upgrade, will be able to receive 20  channels.
With the roll-out of the digital terrestrial television (DTT) platform, there will be increased capacity available to introduce new or further DTT broadcasters and new broadcasters are expected to be authorised due to the additional channels that will be available on the digital platform.

Radio frequency spectrum assignments

The CCK is responsible for licensing and authorising the use of radio frequency (RF) spectrum.  Frequency usage information, such as an assignment in a particular frequency band and the extent of the spectrum assignment, is made public. For example, Telkom Kenya is licensed to use 5 MHz paired in the 800 MHz band.

Spectrum licences restrict the purposes for which the assigned spectrum can be used and the National Table of Radio Frequencies Allocation 2008 edition provides the conditions of use for each spectrum assignment. The ISM bands at 2.5 GHz and 5.7 GHz are exempt from the requirement to obtain a spectrum licence or authorisation in Kenya.  The usage of these bands are charged for but at rates that are considerably lower than those charged for frequencies in bands designated for exclusive use.

In terms of the Radio Communications and Frequency Spectrum Regulations, the CCK may impose such conditions as it considers necessary for the use of assigned frequencies.  A licensee may not make a material change to a licence station or change the station parameters specified in the licence without a written authorisation from the CCK.  For example, where an operator seeks to change physical infrastructure such as towers and radio equipment such as by changing the height of a tower in order to reach certain coverage objectives, a written consent from the CCK is required.

Livia Dyer is a partner in the Johannesburg office of South African firm Bowman Gilfillan in the corporate department where she specialises in Public Law and Technology, Media and Telecommunications. She has worked on the South African regularoty framework in respect of telecommunications and broadcasting. Contact: l.dyer@bowman.co.za

John Syekei is a partner at the Nairobi office of Kenyan law firm Coulsen Harney, which is a member of the Bowman Gilfillan African network. He advises clientso n M&A transactions in the IY, Telecommunications and Healthcare sectors and advises a number of leading companies such as Googe, Facebook, Microsoft and IBM. Contact: j.syekei@coulsonharney.com