The Executive Telecommunications Bill: An Overview

Our Paul Oki presented an overview of the Executive Telecommunications Bill, at the recently concluded interactive session on the Bill, hosted by the House of Representatives’ Committee on Communications. Below are excerpts from the overview:

Legislative Ambit

Should the legislative ambit of the bill be restricted to telecommunications alone, or should it extend to “communications” in the broadest sense of the term? This question arises in view of the global trends towards convergence in the areas of Telecommunications, Broadcasting and Information Technology. 

• What lessons can be learnt from other jurisdictions in Africa, Asia, Europe and the US?

The National Regulatory Authority ( NCC)

The legal and actual independence of the Nigerian Communications Commission from political or operator influence is fundamental to the successful regulation of the telecommunications industry. Independence of the NCC can be readily evaluated by scrutinizing its sources of funding, the mode of appointment and removal of its executive officers, the security of tenure of its officers, and the extent to which it is effectively controlled by some other authorities outside itself.

Furthermore, procedures adopted by the NCC in the exercise of its functions must be transparent, impartial and be consistent with existing laws or regulations.

Funding

Sources of funding for the NCC include subventions and budgetary allocations, gifts, loans and grants-in-aid, fees, charges and funds accruing from services performed by the NCC (s.13).

The NCC must also submit a report of its estimated expenditure and income, for each financial year, to the Minister of Communications (s.15).

The Minister must approve borrowing of funds by the NCC (s.18).

• Should the NCC be allowed to accept gifts?

Mode of Appointment and Removal of Commissioners

The Chairman and the Commissioners of the NCC are to be appointed from each of the six geo-political zones by the President, subject to confirmation by the Senate. Tenure of appointment is six years, renewable for another six years (s.3).

The President, in consultation with the Minister, may remove a serving commissioner if he is satisfied that it is in the interest of the NCC or the public to do so (s.5). There are no criteria for disqualification from appointment.

• Should confirmation of appointment be limited to the Senate alone?
• Is it necessary to prescribe that appointment cut across the six geo-political zones? 
• Is the six-year tenure of appointment acceptable? Should it be shortened? Lengthened? 
• Should the President and the Minister have such powers of removal? 
• Is this procedure acceptably transparent?

External Approvals and Controls

The President, in consultation with the Minister, may remove commissioners (s.5); the Board, subject to the Minister’s approval, determines the terms and conditions of services of the NCC’s employees (s.11).

NCC’s annual budget is to be submitted to the Minister (s.15).

The NCC may only borrow or invest funds with the approval of the Minister (ss.18, 19).

• Should the Minister be so intimately involved in the NCC’s affairs?

Procedures of the  NCC

• Are the procedures of the NCC generally transparent enough?
• Should there be specific obligations upon the NCC to publish procedures, decisions, activities and reports?
• Should the NCC’s decision on issues be open to appeal? To what body?

Licenses, Services and Approvals

Part VII of the bill presents two types of licenses for telecommunications services: Class Licenses and Individual Licenses.

The NCC may take between four and six months from the date of receiving a license application to consider whether to grant a license or not. Licenses may be modified or revoked on certain conditions.

The NCC may appoint an administrator to wind up a licensee’s operations upon revocation of its license.

• Are the categories of licenses clear enough in definition and scope?
• Should service and frequency licenses be consolidated into one license?
• Should the NCC take between four and six months to determine whether to grant a license or not?
• Should certain (or any) services be exempted from the need for servicing?
• How practical is the idea of appointing an administrator to handle the operations of a revoked licensee?
• Should the Minister be involved in the funding of the NCC? 
• How best can the NCC be funded, in order to guard against undue political or industry influence in the discharge of its duties?

Frequency Monitoring and Management

Chapter II of the Bill establishes a National Frequency Management Council (NFMC) to generally handle frequency monitoring and management. However, the function of frequency management appears to have been referred to the NCC by the President.

• Should the NCC be responsible for managing and allocating all aspects of the frequency spectrum?
• Should the NCC allocate frequencies for the Military/Security agencies, the Broadcasting, Aviation and Maritime industries?
• What is the status of the ongoing National Frequency Audit?
• Are plans being made for gradual migration from specific frequency bands? Does the NCC have the required frequency monitoring equipment for this task?
• Should any portion of the frequency spectrum be left unregulated or allocated free of charge?

Consumer Protection

The fundamental aim of a liberalized telecoms industry is the provision of efficient and affordable services to the widest range of consumers at the best possible price. Legislation must therefore, reflect this fundamental objective in conferring regulatory powers upon the NCC.

• Should the NCC be empowered to cap or actively reduce tariffs of telecoms services?
• Should the NCC be obliged to publish its criteria for endorsing the tariff regime existing at any given time?
• Should the NCC be obliged to publish detailed quality of service obligations for operators in the industry, with stiff penalties attached for non-compliance?
• Should the NCC prescribe and enforce more accurate billing/metering obligations on service providers in the industry?
• Should operators be obliged to ensure number portability for the benefit of subscribers changing between service providers, but wishing to keep their existing phone numbers?
• Should operators be obliged to re-configure their various systems to recognise and accept a unified number (e.g.911) as the national emergency number?
• What sort of sanctions/penalties should the NCC impose upon erring operators?

Convergence Issues

Overview:

The bill currently limits the ambit of the NCC to the telecommunications industry, notwithstanding that the industry regulator is called the Nigerian Communications Commission.

• In view of current trends towards the convergence of Information Technology, Telecommunications and Broadcasting, should the scope of the bill be broadened to embrace communications generally?
• In a convergence regime, what would be the role of the Nigerian Broadcasting Commission (NBC), or the government body charged with the implementation of the National IT Policy?
• Should the NCC attempt the regulation of the Internet? If not in its entirety, at least as it pertains to Internet Telephoning?
• Will the NCC need to review its current categories of licenses with expanded or converged scope of operation?

Interconnection Issues

Part IX of the bill deals with Interconnection and Tariffs. It is universally accepted that the level and structure of interconnection charges are perhaps the most significant factors determining the price of the services in the telecommunications industry. The following questions arise:

• Is the industry satisfied with the interconnection procedures currently prescribed in the bill?
• Should industry operators be given the discretion to refuse interconnection with a requesting service provider? In what circumstances?
• To what extent should the NCC leave the commercial negotiation of interconnection charges entirely to the operators, bearing in mind that such charges will ultimately be passed on to the consumers?
• Should the publications of interconnection agreements be mandatory? Should such agreements be published in their entirety (for reason of transparency) or should certain information be excluded?
• Should any operator, whether dominant or not, be compelled to share infrastructure facilities with other service providers? In what circumstances and on what terms?
• Can interconnection and facility-sharing agreements be used to lessen the environmental impact of telecommunications installations and constructions (e.g. towers, masts, conduit, and channels across roads etc.)?