A review of the draft Kenya Information and Communication (Interconnection) Regulations, 2022

Interconnection has been defined by the World Trade Organisation as, ‘Linking with suppliers providing public telecommunications transport networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier where specific commitments are undertaken.’¹ Interconnection regulations play a vital role because without them it would be difficult or even impossible for ‘efficient competition in “downstream” markets unless entrants can access the incumbent’s network at appropriate prices, terms and conditions.’² Regulations also need to adapt to the changing circumstances and this is true especially with regard to the ICT industry where regulations which are not up to date can stifle market growth and innovation.³

The Cabinet Secretary for ICT, Innovation and Youth Affairs in consultation with the Communications Authority of Kenya has come up with the proposed Kenya Information and Communication (Interconnection) Regulations, 2022.The purpose of the regulations is to provide a framework for ‘regulation of interconnections by the Authority for all interconnect licensees and interconnecting licensees.’⁴ The regulations also define the Authority’s role in facilitating ‘interconnection negotiations between telecommunications licensees and establishing a conducive environment for interconnection in Kenya.’⁵

The proposed regulations have encapsulated important aspects that are important for successful interconnection to occur. For instance, negotiation of interconnection agreements play a vital role in ensuring that successful interconnection is achieved.⁶ The proposed regulations define what an interconnection agreement is by providing that it is an agreement that was entered into before or after the regulations commenced and ‘between an interconnect licensee and an interconnecting licensee in relation to the interconnection of their telecommunication systems.’⁷

During negotiation of interconnection agreements, the interconnect licensee is required to provide all interconnection information that is necessary to the interconnecting licensee once they receive a written request.⁸ Additionally, the parties involved in an interconnection agreement are required to ‘negotiate in good faith and resolve disagreements that may arise relating to the form and subject of an interconnection agreement.’⁹ During an interconnection negotiation, the parties involved in the proposed interconnection agreement are not supposed to ‘intentionally mislead the other party,’¹⁰ ‘coerce the other party into making an agreement that it would not otherwise have made’¹¹ or ‘intentionally delay or obstruct negotiations.’¹²

An important principle that is required for a successful interconnection is transparency and non-discrimination. The proposed regulations provide that where there are similar circumstances and negotiations, an interconnection licensee is supposed to ensure that the rate charges don’t ‘vary on the basis of the class of customers to be served,’¹³ also the interconnection facilities or systems provided to interconnecting licensees should be of the same quality provided to subsidiaries or affiliates.¹⁴ The interconnection licensee is supposed to provide the interconnecting licensees with all ‘necessary information and specifications related to interconnection.’¹⁵ Lastly, customers of interconnecting licensees are not supposed to be discriminated and should thus be treated the same way with other customers.¹⁶

Confidentiality is another fundamental principle that should be observed when it comes to interconnection. As a general rule, a party that receives interconnection information that is regarded as confidential should keep that information confidential. The proposed regulations provide instances when such information may be disclosed and this includes in cases where employees, agents or advisers require that information for the ‘purpose of the provision of interconnection or giving advice,’¹⁷ where a person has been authorized to receive such information by that party,¹⁸ where disclosure is required by law and finally such information may be disclosed to the Authority.¹⁹

The draft regulations can be said to be standard and comprehensive having covered many areas in detail in addition to the ones reviewed above. A few other countries have interconnection regulations for example India has the Telecommunication Interconnection Regulations 2018 which covers important areas of interconnection but compared to the proposed Kenyan legislation, the Kenyan one seems more comprehensive which is commendable since it shows that the legislators involved in the drafting process factored in many issues before releasing the draft legislation.

However despite that, there are a few proposals that can be included in the regulations and they are as discussed below:

1. Interconnection Charges

Section 2 of the draft regulations which consists of the interpretation of various words and phrases has defined most of the crucial terms involved in interconnection. However, it lacks a clear definition of interconnection charges. The proposed legislation has defined different interconnection terms such as interconnection, interconnection agreement, interconnection information and interconnection offer.

The legislation fails to define what an interconnection charge is but instead contains a provision that describes the structure of interconnection charges.²⁰ It is important to have a clear definition of what an interconnection charge entails so as to avoid any misconceptions. An ideal illustration of this is the Indian interconnection regulations which defines an interconnection charge as, ‘charges payable by one service provider to another service provider for interconnection.’²¹

2. Negotiation of Interconnect Agreements

There are a number of issues which need to be dealt with in an interconnection agreement in order to achieve successful interconnection. Section 5 of the draft regulations deals with negotiation of interconnect agreements and the provisions of interconnection agreements are described further in section 5(7). Some of the key issues that need to be dealt with and defined in the interconnection agreement include:

1. Priced and adjustment of prices over time²²– This includes ‘ the initial level of interconnection charges, a definition of the currency in which interconnection charges are to be paid and how prices will adjust over the term of the agreement to account for exchange rate changes and inflation.’²³

2. Points of interconnection which entails physical locations where interconnection will take place and the technical standards to be employed interconnection need to be defined.²⁴

3. Transport (conveyance) charges and traffic routing²⁵

4. Quality of service standards²⁶

5. Billing and collection²⁷

6. Traffic measurement and settlement²⁸

7. Numbering resources²⁹

8. Forecasting network needs³⁰

9. Access to customer information.³¹

The regulations lack a provision on access to information which is important in interconnection agreements because when calls are being completed and billed, the interconnecting operators ‘pass considerable information back and forth about each other’s clients.’³² It is important to define the limits on the permitted use of such information especially with regards to the temptation of engaging in other activities based on that information such as ‘marketing activities by approaching another operator’s clients.’³³ It is also important to have a provision on the kind of data to be exchanged because as has been illustrated considerable information is exchanged and therefore appropriate measures should be taken to protect personal data.

3. Unbundling

Unbundling can be described as the mandatory offering of specific elements of a network by network operators to other operators based on terms approved by a regulator or sanctioned by a court.³⁴It allows ‘competing operators to enter the market and roll out services with considerably less sunk investment in some or all components of a competing network.’³⁵ The provision on unbundling can be found in section 26 of the proposed regulations. However, before describing it, there needs to be a clear definition of what it entails in section 2 of the regulations.

Unbundling has a number of benefits such as:

1. It encourages innovation since new entrants can combine new technologies with components of existing networks.³⁶

2. It avoids unnecessary duplication of components.³⁷

3. Facilitates access to rights of way, towers and many others by new entrants.³⁸

4. It reduces economic barriers to entry.³⁹

In conclusion, the proposed interconnection regulations can be said to be comprehensive having captured most of the important details. Implementing some of the recommendations will enhance the substance and quality of the legislation.

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