Act. It contends, however, that it had not applied for new services but for permission to provide broadcast services on the same terms as GoTV was providing on the digital platform, and that the digital platform did not exist prior to 2009. It also submits that GoTV does not have a DTT licence, and no DTT licenses have been issued. 18. The petitioner submits that CCK has failed to perform its statutory mandate and has thereby given GoTV the advantage of being the only player transmitting on the digital platform and selling set top boxes to consumers which are locked and only capable of receiving broadcast services offered by GoTV. 19. The petitioner also alleges violation of freedom of the media and freedom of expression. In this regard, it asserts that the discriminatory actions of the respondents in favour of Multi Choice and GoTV have denied it an opportunity to transmit on the digital platform; that this has violated its rights under Article 34(1); that the licensing procedure being pursued by the state is designed to favour the Interested Party; that the said procedure is not independent of the control of government and media interests; and the 2nd respondent is attempting to arm-twist the petitioner into entering into a joint venture with it. 20. The petitioner also argues that the acts of the respondents have curtailed the rights of the public under Article 33(1) to freedom of expression as Multi Choice is being allowed to provide set up boxes which are locked and can only receive content from GoTV. 21. The petitioner alleges that the respondent is failing in its responsibilities and denying the petitioner and the public equal protection of the law. It contends that there is supposed to be openness and non- discrimination in provision of signals; that its competitor is not being required to obtain a licence due to the joint venture with the 2nd respondent; and there is consequently violation of the petitioner’s rights under the Constitution to nondiscrimination and equal protection of the law, as well as freedom of expression and of the media. 22. The petitioner relied on the case of Red Lion Broadcasting Co. v FCC 395 U.S 367 (1969) to emphasise the role of the 1st respondent as a regulator of broadcasting against the constitutional provisions of freedom of expression and freedom of the media. The Response The 1st Respondent’s Case 23. The case for the 1st respondent was presented by its Learned Counsel, Mr. Kilonzo, who relied on the affidavit of Mr. John Omo, the Commission Secretary of the 1st respondent, dated 22nd June 2012 and written submissions dated 16th November 2012. According to the 2nd respondent, the petitioner has a permit to provide direct to home (DTH) television services or cable services that do not require frequency resources. It concedes that prior into the amendment of the Kenya Communications Act, 1998, which came to force on 2 nd January 2009, there were no regulations governing the broadcast sector; that the Minister would issue a licence and the licensee would go to the 1st respondent to obtain a frequency resource; and that for a broadcaster providing DTH or cable broadcasting, there was no need to go to the respondent to obtain a frequency resource. 24. The 1st respondent denies that there has been any discrimination against the petitioner. It submits that Section 46(1) gives the Minister power to make transitional provisions; that it had invited applications for issuance of broadcast licences under the new regulatory regime but the High Court (Warsame J, as he then was) had issued orders in Magic Radio Ltd –vs- The Communications Commission of Kenya, Misc Civil Applic No. JR 284 of 2011, restraining the issue of broadcast licences under the new regulatory framework; that in another suit