The Communications Authority of Kenya (CA) is once again attempting to cement its foothold in the competition domain of the communications and telecommunications sector. This follows the latest set of regulations under the Kenya Information and Communications Act (KICA), currently under public participation. This move rekindles a long-standing debate about who the proper regulator is for competition matters in the industry.

Sections 84W(4) and 84W(5) of the Kenya Information and Communications Act, 1998, require that declarations of dominance and uncompetitive markets be made in consultation with the Competition Authority of Kenya (CAK) and in line with due process. However, the new regulations take a diluted approach. While the regulations recognise the need for cooperation in some cases, they weaken it by making consultation with CAK an optional step rather than a mandatory requirement.

For example, the proposed Fair Competition and Equal Treatment Regulations, 2025, aim, among other objectives, to promote fair competition and equal treatment within the communications sector. The regulations also seek to protect against the abuse of market power and other anti-competitive practices, as well as to boost investor confidence in the sector.

However, the mandate granted to the CA gives it discretion rather than an obligation to consult with the CAK when determining and pronouncing on dominance. Considering the extensive obligations imposed on a dominant market participant, particularly in tariff-setting, where its services and products may be classified as regulated services subject to additional oversight, this discretionary approach reflects a narrow and rigid view of competition regulation. Such a stance risks undermining cooperation between regulators and could ultimately harm not only licensees but also consumers.

While turf wars between the Communications Authority and the Competition Authority are not new, a similar attempt arose in 2022 under then-Cabinet Secretary Eliud Owalo when draft regulations were introduced but stalled. The re-emergence of these proposals provides an opportunity to learn from more advanced markets, which may offer guidance on resolving concurrent jurisdiction issues between communications and competition regulators.

MoU: A Regulatory Approach for Overlapping Mandates  

The United Kingdom

The United Kingdom’s case illustrates an engaging and progressive approach to managing overlapping and concurrent regulatory jurisdictions. A key initiative in this area is the Digital Regulation Cooperation Forum (DRCF), a non-statutory platform established to enhance coordination among digital sector regulators. The DRCF consolidates the efforts of the Competition and Markets Authority (CMA), Office of Communications (Ofcom), Information Commissioner’s Office (ICO), and Financial Conduct Authority (FCA).

The DRCF was created to tackle the fact that digital markets often overlap with traditional regulatory boundaries, covering competition, communications, data protection, financial services, and online safety. Its main objectives are to promote coherence and uniformity in digital regulation and to enable regulators to share expertise, intelligence, and resources.

Alongside the DRCF, a more detailed framework was formalised through a Memorandum of Understanding (MoU) between the CMA and Ofcom, signed in 2024. This MoU specifies how the two regulators will collaborate under Part 1 of the Digital Markets, Competition and Consumer Act 2024 (DMCC Act).

The MoU establishes a framework for coordination in regulating digital markets, recognising the overlapping roles of both regulators. While CMA has powers under the DMCC Act to designate firms with Strategic Market Status (SMS), Ofcom, as the UK’s communications regulator, also has competition powers and statutory responsibilities in broadcasting, telecommunications, spectrum management, postal services, and online safety.

Therefore, the DMCC Act requires consultation, where the CMA must consult Ofcom when exercising digital market regulatory functions within Ofcom’s remit, unless the costs of consultation outweigh the benefits.

The United States

In the United States, a similar approach exists through cooperation between the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC). Both agencies have overlapping responsibilities for consumer protection in telecommunications. While the FCC holds primary jurisdiction over telecommunications services, including broadband providers classified as “common carriers”, the FTC, by contrast, oversees non-common carrier activities, with a focus on consumer protection and antitrust enforcement.

In 2024, the FCC and FTC signed an agreement clarifying their respective roles. The MoU confirms that the FCC regulates common carrier services, while the FTC retains jurisdiction over non-common carrier activities, including oversight of anti-competitive behaviour and broader consumer protection.

Conclusion 

The examples demonstrate that collaboration and cooperation are the most effective approaches, particularly as emerging markets present new challenges for traditional regulators. Any attempt to sideline or undermine an expert regulatory body would not only be regressive but also oppose global regulatory trends. Innovative methods such as joint forums like the Digital Regulation Cooperation Forum (DRCF) and formal MoUs between regulators have proven to be strategic tools for tackling these challenges.

In this context, the Ministry of ICT and the Digital Economy (MICDE) should review the proposed Fair Competition and Equal Treatment Regulations, 2025, and related instruments to ensure they promote collaboration rather than marginalise existing regulators.