TELECOMMUNICATIONS LAW IN NIGERIA



  1. The British Colonial government introduced telecommunications services in Nigeria in 1886 to aid colonial administration in the country. These services linked Lagos by sub-marine cable to other British colonial territories in West Africa, such as Ghana, Sierra Leone, and The Gambia, and then to Britain. However, after the completion of Lagos-Ibadan telephone trunk line in 1929, a telephone exchange was installed at Abeokuta and in other parts of the country, including Aba, Port Harcourt and Bukuru. By 1934 Nigeria had 21 telephone exchanges; this number was increased to 40 in 1940, and then to 59 in 1945.


    At independence in 1960, there were 121 telephone exchanges with installed capacity of 18,724 telephone lines for an estimated population of about 40 million. Later, in 1985, the capacity was increased to 200,000 telephone lines. In 1992, seven years after NITEL (Plc.) was established, new technologies, including electro-magnetic digital, satellite fibre optic, Integrated Services Digital Network (ISDN), were introduced into the national networks. About the same time, Nigeria also embarked on liberalisation of the telecommunications industry, allowing private investors and operators to obtain license to operate the Global System for mobile communication. This liberalisation resulted in exponential growth and improvement in the Nigerian telecommunication industry. For example, as of the end of February 2012 there were more than 129 million cell phone subscriptions, and 2.3 million lines of fixed-wired and wireless Internet access subscribers in the entire country.

    Although historically the telecommunications sector was concerned with technical matters, rather than content, this is now changing with convergence and the fact that increasingly content is being transported through telecommunication lines. So, with advance in technology, telecommunications network platforms around the world are merging with other platforms such as computer and digital media equipment. Today, there is a wide and fast-growing range of what is called ‘telematics’ (transmission of computerized information) networks and services. This continuing dynamic nature of the telecommunications sector within the global economy, nonetheless, raises a number of legal issues such as the regulation and licensing of telecommunications services.


    3.2 RATIONALE FOR REGULATION OF TELECOMMUNICATIONS SERVICES

    Traditionally the world, telecommunications services were provided in each country by one monopoly carrier. Such carriers were almost always owned by the government and operators as state agencies, often as part of the postal service. Beginning in the 1980s and continuing into the 1990s, the telecommunications industry in almost all countries around the world started to experience privatization, thereby exposing the newly privatized companies to market forces and forcing them to become more efficient and competitive. Even so, it was recognised that without efficient entry and growth of new rivals, competitive disciplines on the newly privatized incumbent telecommunications firms would not be exerted and hence these firms would continue to exploit their dominant position at the expense of consumers, as well as engage in strategic games to deter new entrants.

    The effect of this has been to create an increasing international element to telecommunications law and policy. This is best demonstrated by the conspicuous role afforded to the telecommunications sector within the World Trade Organisation (WTO) and the increasingly prominent work of the International Telecommunications Union (ITU). In Nigeria, for example, prior to the liberalization of the telecommunications sector by the federal government in 1992, the sector had been completely dominated by publicly owned Nigerian Telecommunications, Ltd. (NITEL) with 100 per cent share of the market at the time of privatization and thus 100 per cent control of customers, and yet the service had been grossly inadequate. Nowadays, private telecoms carriers in the country include: MTN Nigeria Communications (brand name: MTN); Globacom (brand name: Glo Mobile); Bharti Airtel (brand name: Airtel Nigeria); EMTS Limited (brand name Etisalat); Multilinks (brand name: Multilinks); Starcomms, Ltd. (brand name: Starcomms).

    So it was partly because of the recognition to maintain competitive disciplines on the newly privatized incumbent firms and the need to prevent exploitation of dominant position at the expense of consumers, that global economic regulation of the newly privatised firms was considered essential and implemented. By so doing, regulation could thus prevent monopolistic abuse and anti-competitive behaviour.


    3.3 LEGISLATIVE FRAMEWORK FOR THE OPERATION OF TELECOMMUNICTIONS INDUSTRY

    The Nigerian Communications Commission Act No. 19 of July, 2003 is the primary legislation regulating the telecommunications industry in the country. The Act repealed the Nigerian Communications Commission Act No. 75, 1992; the Nigerian Communications Commissions (Amendment) Act No. 30, 1998 and the Nigerian Telecommunications and Postal Offences Act No. 21 of 1995 as amended.

    Up to 1992, Wireless Telegraphy Act 1990 was the principal legislation for the operation of telecommunications services in Nigeria which was then, as noted above, only available from the monopoly operator, NITEL. However, the 2003 Act opened competition in the telecommunications markets throughout the country and mandated changes on the rights and responsibilities of all portions of the telecommunications industry, including licensing, spectrum, interconnection, the assignment and usage of frequencies, tariffs, access to facilities and consumer issues. Other Government bodies recognised by the Act are the Ministry of Information & Communications and the National Frequency Management Council charged with the .management of frequency spectrum allocation.

    Indeed, the Act re-affirmed the regulatory role of Nigeria Communications Commission (NCC), thereby strengthening its capacity to properly carry out its regulatory activities as an independent regulatory body for the telecommunications sector. Moreover, the Act provides for the establishment of consumer affair bureau/parliament to deal with consumers’ complaints, as well as the use of alternative dispute resolution processes for the resolution of the complaints or disputes brought to the attention of the Commission. The Act also makes provision for the establishment of Universal Service Provision Fund (USPF) to provide telecommunications and ICT services to unserved, underserved and deprived groups and communities in the country. In this respect, about 474 schools spread across the six geopolitical zones of the country, have so far benefitted from complete set of Internet tools and facilities provided by the USPF.


    3.4 REGULATION OF TELECOMMUNICATIONS

    The Nigeria Communications Commission (NCC), established under section 3 of the Nigerian Communications Commission Act 2003, is an independent national regulatory authority that regulates the telecommunications industry. The main functions of the NCC include:

    ·      issuing licences to telecommunications operators;
    ·      assigning frequencies, facilitating private sector participation and investment in the telecommunications sector;
    ·      establishing and enforcing technical and operational standards and practices;
    ·      ensuring that the interest of consumers are protected through enforcing service standards and pricing regulations;
    ·      designing and maintaining a national numbering plan;
    ·      arbitrating between operators, carriers and consumers; and,
    ·      generally regulating all telecommunications licensees and service providers.

    Exclusive jurisdiction over all matters, suits and cases arising out of or pursuant to or consequent upon the 2003 Act is vested in Federal High Court. Under the 2003 Act, the Minister of Communication Technology is responsible for making policy and issuing policy directions to the NCC and for making key regulatory decisions regarding licensing and spectrum. However, like the Nigeria Broadcasting Code of the NBC which, as noted in Module 2, sets out the broad and more specific requirements that all broadcasters need to comply with, the Spectrum Frequency Management Policy of the NCC similarly provides detailed guidelines on how to control and encourage the use of spectrum, promote competition in the assignment of frequency, achieve optimum pricing of spectrum, generate moderate revenue for government, and ensure equitable and fair allocation of spectrum to benefit the maximum number of users.

    The reality of convergence, as in broadcasting industry, has driven fundamental changes in telecoms regulation. To the extent that the term ‘telecommunications’ is gradually being replaced by ‘communications’  which is considered wide enough to cover telecoms, broadcasting and IT. In fact, under European Union (EU) law, telecommunications as a legal and regulatory term has disappeared, to be replaced by 'communications', embracing all forms of infrastructure, services, and equipment supplied for the transmission of data and information, whether traditionally viewed as broadcasting or voice telephony.


    3.5 LICENSING

    Licence is required to install or operate telecommunications networks or provide services over them in Nigeria. Section 31 of the 2003 Act requires any application for licences to provide and operate telecommunication services to be addressed to the NCC. Thus, all existing or prospective telecommunications service operators are required to apply to the NCC for licences for the renewal of their licences not later than 6 months before their expiry date with payment of renewal fee. And, in considering an application for a licence, the applicant must produce relevant evidence or information showing its capacity to operate the service to enable the Commission to take a decision on the application within 90 days (s. 41(1). Of course, individual and class licences are subject to payment of processing fees and registration fee respectively to the Nigerian Communications Commission (ss. 39(4); 50(2).

    The NCC also has broad discretionary powers to impose any kind of limitation on any licence granted on the occurrence of any public emergency or in the interest of public safety. In addition to NCC approval, section 135 of the 2003 Act requires licensees to seek approvals of the State Government, Local Government or other relevant authority for installation, placing, laying or maintenance of any network facilities in any place in the country. Licences or other authorisations may be transferred but with the prior written approval of the Commission. The Commission issues licences for periods ranging from five years to 20 years. The process of licensing takes place in the form auction, ‘first come first served,’ ‘beauty context,’ and administrative procedure.


    3.6 INTERNATIONAL REGULATORY REGIMES

    Nigeria is a member of the World Trade Organisation (WTO) since 1 January 1995, and also a member of International Telecommunication Union (ITU) since 4 November 1961.

    The WTO is an international organisation that opens trade for the benefits of its member, by providing a forum for negotiating agreements, reducing obstacles to international trade and ensuring a level playing field for all, thereby contributing to economic growth and development of member nations. The ITU is, however, a United Nations specialised agency for information and communication technologies charged with allocation of global radio spectrum and satellite orbits, development of the technical standards that ensure networks and technologies seamlessly interconnect, and striving to improve access to ICTs to underserved communities worldwide.

    The 1997 WTO’s Basic Agreement for Telecommunications Services secured commitments from countries to reform their industries. That is, to move from monopoly to liberalisation (privatisation) and competitive market. The WTO’s 'Agreement is seen as a definitive moment in the international community's commitment to the structural evolution of the sector from a monopolistic to competitive marketplace. In Nigerian context, the country, as noted earlier, initiated partial liberalization reforms in 1992 with the promulgation of NCC decree 75 and the establishment of the NCC in order to open up the telecom market segment to competition.

    Subsequently in 2003, Nigeria made commitments under the terms of the Fourth Protocol on Basic Telecommunications to open up other telecom market segments, and to establish an appropriate regulatory environment. In this respect, the country enacted the Nigerian Communications Commission Act No. 19  of 2003 which, amongst other things, re-established an independent NCC with increased regulatory powers; developed new Spectrum Plan for Nigeria and transferred Commercial Spectrum Management to the NCC; ushered in landmark resolution of interconnect disputes and settlement of interconnection rates; provided for the development of other regulations and guidelines e.g. Consumer Protection, Universal Access and Services; Dispute resolutions etc. However, the national telecom carrier, NITEL, is yet to be privatised despite repeated attempts to do so. Also, Nigeria is committed to ITU agreement to migrate from analogue to digital transmission of signals by June 2015, yet this commitment has not been met as November 2013.

    3.7 CASE LAW ON TELECOMMUNCATIONS MATTERS
    As noted above, the proper Court to entertain matters arising out of the Nigerian Communications Act, 2003 is the Federal High Court. However, like any recovery claim, majority of cases involving telecom companies involve the recoveries of interconnection debts. These cases include the following:

    ·      Nigerian Communications Commission v. Motophone Limited & anr Suit No: CA/A/189/05 (Motophone Case) – Challenged withdrawal of 2G licence in the wake of 2G auction of 2001.
    ·      Blue-chip Communications Company v. Nigerian Communications Commission Suit No: CA/A/108/04 – Suit was instituted in the lower Court challenging NCC’s refusal to grant the Plaintiff a 3G License during the 5 year exclusivity period granted the four DML operators.
    ·      Registered Trustees of ALTON & Ors v LASG & Ors [FHC/L/CS/517/2006] Action brought to challenge the Lagos State Infrastructure Maintenance and Regulatory Law of 2004 which provides for the erecting/installation/maintenance of telecoms masts/equipment.
    ·      NCC V. MTN Appeal No. CA/A/25/ 2004 – Action to review of the Interconnect Rate determination carried out by the NCC.
    ·      Econet Wireless Nigeria limited v. NCC Appeal No. CA/A/83/ 2004 – Action brought to challenge the interconnect rate determination carried out by the NCC in December 2004.
    ·      Celtel & MTN V. NCC Suit No. FHC/L/CS/909 Application for an interlocutory injunction restraining NCC from adopting a proposed parameter to determine compensations payable by subscribers for poor quality of service.
  2. Telecommunications (treated as singular), or  electronic communications, may be described as a mode of communication which allows the transmission of signal, words, sounds, images, videos, or data over a distance. Tele means distance or distant. Thus, telecommunications is the transmission of information in the form of electronic or electromagnetic signals or impulses to distant locations. Telecommunications services, which include telephony, fax, and mobile, are an essential information infrastructure because they promotes the development of other sectors such as agriculture, education, industry, health, banking, defence, transportation and tourism.

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