RMS had challenged a letter written by CCK in 2012, which stated that several frequencies used by the media house were in contravention of the frequency assignment conditions.
The letter had also asked RMS to cease broadcasts on certain frequencies as they were interfering with those assigned to other broadcasters.
The regulator then gave RMS 30 days to put in place corrective measures and install bandpass filters, obtain type approval for transmitters, shut down unauthorised stations and relocate to designated broadcast sites.
The Court of Appeal has dismissed an appeal by Royal Media Services (RMS) challenging a directive by the communications regulator eight years ago requiring the broadcaster to stop interfering with frequencies allocated to other media houses.
A bench of three judges upheld a decision of High Court judge David Majanja saying the Communication Commission of Kenya (CCK), the predecessor of Communications Authority of Kenya (CA), was legally mandated to regulate airwaves.
Justices Wanjiru Karanja, Fatuma Sichale and Jamila Mohammed said the CCK was acting within its mandate in investigating any complaints of interference with frequencies.
“From the record, we are satisfied that the 3rd respondent (CCK) followed the due process in enforcing the regulation of airwaves as mandated and that the impugned letters and notice were issued in accordance with Section 41 of the Kenya Information and Communication Act,” the judges said.
RMS had challenged a letter written by CCK in 2012, which stated that several frequencies used by the media house were in contravention of the frequency assignment conditions.
The letter had also asked RMS to cease broadcasts on certain frequencies as they were interfering with those assigned to other broadcasters.
The regulator then gave RMS 30 days to put in place corrective measures and install band pass filters, obtain type approval for transmitters, shut down unauthorised stations and relocate to designated broadcast sites.
But the company argued that the letter lacked any basis because the regulator had inspected its radio and TV sites and broadcasting equipment in 2003 and had confirmed compliance.
RMS boss S.K. Macharia accused the regulator of engaging in selective and discriminatory enforcement of the Act because some broadcasters were allegedly using transmitters not approved, but the regulator took no action against them.
He said the move by CCK was threatening to infringe on its freedom guaranteed by the Constitution and usurping the powers it does not have by seeking to license and regulate airwaves yet no legislation had been made establishing an independent body to license and regulate broadcasting frequencies.
But the judges dismissed the appeal saying the CCK was legally mandated to regulate airwaves and licensing under the 1998 and 2009 Acts and that the promulgation of the Constitution did not render its actions immediately unconstitutional.
“Accordingly, we find that the 3rd respondent (CCK) did not breach Article 34 of the Constitution in sending the impugned letters to the appellant and issuing the notice,” the judges said.
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