NIGERIAN COMMUNICATIONS COMMISSION

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NIGERIAN COMMUNICATIONS COMMISSION

• PUBLIC INQUIRY ON
• ENFORCEMENT REGULATIONS
• 18TH AUGUST 2004

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INTRODUCTION

• The Nigerian Communications Act 2003 has
  conferred on the Nigerian Communications
  Commission the Commission various functions
  which include
• Protecting and promoting consumer interest.
• Making and enforcement of Regulations
• Development and monitoring of performance
  standards and quality of service.
• Promoting fair competition.
• Examining and resolving complaints.

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INTRODUCTION

• To enhance the performance of its functions,
  powers are conferred on the Commission to
• Make decisions
• Make determinations
• Issue directions
• Make Regulations
• Resolve disputes

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CHALLENGES OF MARKET LIBERALIZATION

• Enactment of adequate enabling laws.
• Good regulatory framework.

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THE NEED FOR ENFORCEMENT REGULATIONS

• To enforce decisions, determination, directions,
  rulings.
• To enforce provisions of the Act, Regulations and
  Licenses
• To generally give full force and effect to the
  provisions of the Act with a view to
• Ensure that the performance of the functions of
  the Commission is not impeded.
• Harness the gains of market liberalization.

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REGULATION MAKING POWERS

• The power of the Commission to make regulations
  and guidelines has been conferred by Sections
  4(1)(i) and 70 of Act.

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ENFORCEMENT REGULATIONS2004
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GENERAL OVERVIEW

• Made up of twenty (20) Sections divided into six
  (6) chapters.
• Has two (2) Schedules containing
• General Forms
• List of Administrative fines.

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CHAPTER I

• SCOPE AND INTRODUCTORY PROVISIONS

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• Deals with the scope of monitoring and
  enforcement powers of NCC.
• Exercised over persons subject to the Act.
• Exercised to ensure compliance with
• The Act
• The Regulations and
• License conditions
• Exercised in accordance with the Act and the
  Regulations.
• May be initiated by NCC or complainant.
• Enforcement activities to be published quarterly
  on NCC website.

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CHAPTER II

• MONITORING AND ENFORCEMENT POWERS AND PROCEDURES
  GENERALLY

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Section 4

• Provides principles for the exercise of the
  enforcement and monitoring powers
• Transparency, fairness, non-discrimination.
• Proportionality of sanction to the contravention.
• Need to promote fair competition and investment.
  Etc.

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Section5

• The Commission in the exercise of its enforcement
  powers is among others, mandated to institute
  civil proceedings for
• Injunctive relief.
• Specific performance.
• Pecuniary awards or damages.
• Recovery of administrative fines.

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Section 6

• The Commission in the exercise of its powers of
  entry and investigation may do any of these
• Demand the test operation of any equipment or
  facility
• Seal off premises, and seize and detain property
  to stop an unlawful operation or protect the
  national interest.

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Section 7

• The Regulations define as an offence the
• Assaulting, obstructing or resisting, or aiding
  another to assault, obstruct or resist an
  official of the Commission or an appointed
  inspector.
• Impersonation of an official or appointed
  inspector
• A fine not exceeding N100,000 or 1 year
  imprisonment, or both is prescribed as penalty.

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Section 8

• Places a duty on every licensee on request from
  the relevant authority (as defined), to
• Provide Basic and non-Basic information required
  to prevent crime, protect public revenue and
  preserve national security.
• Prescribes the authorization precedent to a
  request for information
• Request for Basic information to be signed by an
  Officer not below the rank of an Assistant
  Commissioner of Police or its equivalent.
• Request for non-Basic information to be
  sanctioned by a judge or magistrate.

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CHAPTER III

• CONSUMER AFFAIRS AND TECHNICAL REGULATIONS

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Consumer Protection

• For purposes of protecting consumers and ensuring
  the use of ethical marketing and promotional
  strategies, the Commission is mandated to
• Publish guidelines from time to time setting out
  standards on promotion and advertisements.
• Issue written approvals to the contents of, and
  representations in promotions and advertisements
  before publication.

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Acts of Contravention

• Certain actions are in the Chapter declared as
  constituting contravention for which sanctions
  are to imposed e.g.
• Failure to meet minimum standard of quality of
  service.
• Failure to meet type approval requirements.
• Failure to operate within power output limits.
• Breach of guidelines published under the section.
• Occasioning harmful interference.

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CHAPTER IV

• ADMINISTRATIVE FINES

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Applicability

• Administrative fines in the Regulations are to be
  imposed particularly for, but not limited to
  instances where specific enforcement sanctions
  are not provided in the Act or licenses.
• All fines as may be imposed, shall become due and
  payable within 14 days of service of the
  notification document on the contravening person.

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Guiding Principles

• Towards determining administrative fines, 17
  principles are laid down for purposes of
  guidance. These include
• Severity of the contravention and the need to
  deter others
• Transparency and uniformity in applying sanctions
• Duration of contravention
• Whether contravention was deliberate, reckless or
  negligent.
• Records of previous contravention.
• Attitude of contravening person before, during
  and after the contravention.

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CHAPTER V

• REVOCATION OF LICENSES

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• Provides for circumstances where a license can be
  revoked other than as stated in the Act or under
  license conditions.
• Under the Regulations, a three(3) months notice
  in writing must first be given before a license
  is revoked.

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Revocation Circumstances

• Failure to provide services for a continuous
  period of thirty (30) days after date of
  commercial launch.
• None payment of any amount under any license
  condition within twenty-one (21) days of
  notification being sent to the licensee.
• Failure to secure type approval for equipment.
• Inability to commence full operations within
  twelve (12) months of effective date of license.
• Making false or misleading statements of a
  material nature in an application for a license.

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CHAPTER VI

• DEFINITIONS AND SHORT TITLE

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• Contains the definition of terms used in the
  Regulations which are not otherwise defined in
  the Act or licenses.

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COMMENTS ON THEDRAFT ENFORCEMENT REGULATIONS
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INVITATION TO STAKEHOLDERS

• The Commission in June 2004 published the draft
  Enforcement Regulations on its website.
• In compliance with S. 58(1) of the NCA 2003, the
  Commission through the Guardian and ThisDay
  newspaper editions of 23rd July, 2004
• Invited the public and stakeholders to send in
  submissions on the Enforcement Regulations within
  the statutory twenty-one (21) days notice
  period.
• Invited the public and stakeholders to a Public
  Enquiry on the Enforcement Regulations scheduled
  to hold on August 18, 2004.

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RESPONDENT

• The deadline for submission of comments was the
  7th 0f August
• As at close of work on Friday August 13th 2004,
  comments were received from only ALTON.
• Comments were also received from MTN on the 16th
  of August.

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RESPONSE TO THE COMMENTS

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RESPONSE TO COMMENTS

• Comment
• Power of search and seizure
• A submission was made to the effect that the
  power of officials of the Commission and
  inspectors to search, seal off and seize
  equipment and documents is too wide and subject
  to abuse. It was suggested that the provisions be
  made for securing the consent of a judicial
  officer before the power is exercised.

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RESPONSE TO COMMENTS

• RESPONSE
• The powers to seal off premises, seize /detain
  equipment are not of a general nature but are
  qualified as exercisable only in respect of
• Stopping illegal, unlawful and unauthorized
  operations.
• Facilitating prosecution of offenders in court.
• Preserving the national interest.
• These powers are already provided for in the Act
  and no such restriction as contemplated here is
  placed by the Act
• These Regulations merely amplifies the Act and
  states the circumstances where it will be
  applied.

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RESPONSE TO COMMENTS

• Comment
• Request for Basic Information
• There was a comment to the effect that the power
  of the Commission or any relevant authority to
  request for Basic information should be made
  subject to supervision of the courts.
• That Basic and Non-basic information are not
  defined with precision hence the ambit thereof
  can be extended at will.
• It was suggested that the power be made subject
  to authorization by a judge or magistrate.

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RESPONSE TO COMMENTS

• Response
• S.8(1) of the draft Regulations and S.146(2) of
  the Act read together makes it clear that Basic
  information is required to
• prevent crime
• enforce Nigerian law
• protect public revenue and
• preserve national security.
• The Commission recalls that at a consultative
  forum held at the instance of the Commission
  between operators and members of security
  agencies on the 12th of February, 2004,the
  definitions and position adumbrated in the
  Regulations was agreed upon by a majority of
  operators.

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RESPONSE TO COMMENTS

• Comment
• Advertisement and Promotion
• It was submitted that the power of the Commission
  to publish guidelines specifying standards in
  advertisement and promotions, and the power to
  require licensees to submit advertisements for
  the approval of the Commission, is unprecedented
  and may result in the leakage of vital
  promotional strategies to competitors.

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RESPONSE TO COMMENTS

• Response
• Generally, the provisions in the Regulations on
  publication of guidelines on advertisements and
  promotions are supportive of the spirit of the
  Act on advertising or representation of
  services as expressed in S.106(4)(d).
• Contrary to fears expressed in the submission,
  the Regulations only require licensees to obtain
  the prior written approval of the Commission for
  PROMOTIONS and not advertisements.
• By their nature, promotions unless monitored,
  have the tendency to
• Affect the quality of service to the consumers
  adversely.
• Result in anti-competition practices contrary to
  S. 91 of the Act.

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Response Contd

• Furthermore, by S.4(1)(h) of the Act, the
  Commission has the function of protecting the
  interests of consumers against unfair practices
  which in the opinion of the Commission includes
  false/misleading information in promotions.
• A licensee who has no intention to mislead the
  public should have no fear of the provision.
• Confidentiality is of the uttermost importance at
  the Commission. Both the Act and conditions of
  service applicable to staff have extensive
  provisions on conflict of interest and acceptable
  code of conduct. The fear that promotional
  strategies may be revealed to competitors by
  staff of the Commission is therefore unfounded
  and unwarranted.

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RESPONSE TO COMMENTS

• Comment
• Administrative fines
• It was submitted that the sum of N100,000
  payable as fine for
• Impersonating an official of the Commission or
  appointed inspector
• assaulting, obstructing or resisting or aiding
  another to assault, obstruct or resist an
  official of the Commission or appointed
  inspector,
• is prohibitive and may create an impression that
  the
• Commission is interested in making money and not
• stopping repeated infringement of the law.

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RESPONSE TO COMMENTS

• Response
• The sum of N100,000 prescribed in the
  Regulations is the maximum fine and is not
  sacrosanct.
• S.15(2)(a) (q) of the Regulations lays down 17
  principles for guidance and to guard against
  arbitrary and excessive charging of
  administrative fines.

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RESPONSE TO COMMENTS

• Comment
• Change of Management
• It was submitted that the power conferred on the
  Commission to direct licensees to change their
  management as the Commission considers necessary
  is unconstitutional and without basis in the
  enabling Act.

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RESPONSE TO COMMENTS

• Response
• The Commission recognizes the legal right of its
  licensees as incorporated entities to control the
  internal management of their affairs.
• The provision that the Commission may require
  changes in the management of a licensee is an
  option offered in lieu of revocation of a
  license.
• This takes cognisance of the interest of
  consumers and the company.

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RESPONSE TO COMMENTS

• Comments
• It was submitted that the NCC should take due
  care not to exceed its powers under the Act to
  make Regulations and where the Act has already
  made provisions with respect to certain powers,
  NCC should refrain from either repeating the
  provisions of the Act in the Regulations or
  making new provisions in the Regulations which
  are inconsistent with the provisions of the Act.
• Response
• The Commission in developing Regulations always
  ensures that they are consistent with the
  provisions of the Acts.
• Provisions already adequately addressed by the
  Acts are not repeated in the Regulations.
• The Commission would require examples of such
  repetitions or inconsistencies as stated in this
  comments.

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RESPONSE TO COMMENTS

• Comments
• It was submitted that the expression
  particularly but not limited to where there are
  specific monitoring and enforcement provisions in
  the relevant provisions of the Act, Regulations
  or Licence Condition should be deleted.
• Response
• The recommendation arose from an implication
  derived by the commentator from the provisions of
  section 1 and 2 of the Regulations. These
  implications have no basis in fact and do not
  represent the intention of the Regulation.

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RESPONSE TO COMMENTS

• Comment
• It was submitted that in the event that an
  infringement is noticed by the NCC in respect of
  which no infringement report has been made to the
  NCC, the NCC must, in the interest of fair
  hearing and due process, appoint an inspector as
  it is entitled to do, to conduct the inquiry and
  make a report to the NCC which then proceeds to
  make a ruling.
• RESPONSE
• Monitoring and Enforcement is a regulatory
  function of the NCC and this cannot be delegated
  to third parties. We refer in this regard to
  Section 4(d)(i)(w) of the Act. The requirement
  for third party complaint procedure is merely
  complimentary and does not replace the original
  jurisdiction of the Commission
• Section 62 and 62 referred to by the commentator
  refers to Investigations and not Monitoring and
  Enforcement

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RESPONSE TO COMMENTS

• Comments
• National Interest should not be made a
  principle to guide the NCC in its enforcement
  powers, as it is not contemplated in the
  principal statute.
• The publication of enforcement activities must be
  done in a manner that will not prejudice on-going
  enforcement process either at the NCC or on
  judicial review nor create a bias in the minds of
  members of the public. Statutory provisions for
  publication of only Annual Reports should be
  complied with.
• RESPONSE
• The Act under Part IV refers to National Interest
  matters.
• The publication requirement is to fulfill the
  requirement for transparency as mandated by
  Section 4(2) of the Act.
• There is no statutory requirement for publication
  of ONLY annual report as is stated by this
  commentator, on the contrary annual report is
  only one of the reports that the Act requires the
  Commission to publish. There is no limitation in
  the Act as to the type and number of reports that
  the Commission may publish.

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RESPONSE TO COMMENTS

• Comments
• The powers of entry, search and seizure should be
  exercised only upon proper grounds and with the
  mandate of a Judge or Magistrate as is done in
  democratic societies. This requirement should
  also apply to the request for information under
  section 8 of the Regulations. Reference is also
  made to S.37 of the constitution that this
  amounts to an infringement of the
  constitutionally guaranteed rights
• RESPONSE
• The powers of search and entry are provided for
  by section 141 of the Act. The Act does not
  provide a requirement for prior notification
  because it is recognised that such notification
  may defeat the purpose of the search and derogate
  from the power.

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RESPONSE TO COMMENTS

• Section 37 of the constitution is not sacrosanct
  and there are proviso to that section made by
  section 45 of the constitution. The Commission is
  of the view that this provision properly falls
  within the proviso provided.
• These responses are in addition to earlier
  provided responses on this matter.

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RESPONSE TO COMMENTS

• Comments
• The provision relating to prescribing ethical
  standards for contents of advertisements and
  promotions and the vetting in advance of
  advertisements relating to telecommunications
  services should be deleted entirely from the
  Regulations for duplicity, for being ultra vires
  the power granted in the enabling Act and for
  infringing on the jurisdiction of APCONs
  Advertising Standards Panel under the Advertising
  Practitioners (Registration, Etc) (Amendment) Act
  No. 93 of 1992.
• If NCC wishes to impose fines for contravening
  QoS Standards, such standards should be issued
  and made available to those expected to act in
  compliance with them. Provisions stipulating
  punishments for infringing a rule should not
  pre-date the rule. Care must also be taken to
  address the issue of fluctuations in QoS caused
  by factors outside the control of Licensees.

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RESPONSE TO COMMENTS

• RESPONSE
• The advertising standards panel was set up to
  ensure that advertisements conform to Nigerian
  laws. Section 9(1) empowers the Commission to
  publish guidelines with a view to develop
  specialised standards which the panel can then
  monitor. These guidelines will be developed with
  the participation of the industry.
• Comments have earlier been proffered with regard
  to promotions.
• It is not a rule of general applications that
  penalties should not predate the rule. The Act
  prescribes punishment and empowers the Commission
  to make Regulations. See Section 133 134.
• See Section 15(n) of the Regulations

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RESPONSE TO COMMENTS

• Comments
• The administrative fines imposed are too
  draconian and should be reduced to be in
  conformity with the provisions of Interpretation
  Act.
• Daily fines are more appropriate in specific
  instances where conduct is required of licensees
  within a specific timeframe under the Act or
  licence condition e.g. filing of Returns as
  practices by the Corporate Affairs Commission
  under the Companies and Allied Matters Act.
• Several of the contraventions should be deleted
  from schedule 2.
• RESPONSE
• Section 1 of the Interpretation Act specifically
  exempts application of its provisions where a
  contrary intention appears in an enactment. The
  reference to the Act is therefore not
  appropriate.
• Daily fines have been provided where appropriate.
• Where the commentator considered fines to be too
  excessive no recommendations were proffered for
  the Commissions consideration.
• Fines as provided in the Regulations are maximum
  amounts and the Commission will be guided by the
  criteria listed in Regulation 15.

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RESPONSE TO COMMENTS

• Comments
• The provision relating to circumstances under
  which a Licence may be revoked in the Act and the
  respective Licences should not be duplicated
  here.
• Power should not be vested in the NCC to require
  the removal of an employee of a private company,
  especially when that power is self-conferred by a
  regulator without any basis in the enabling Act.
• RESPONSE
• These provisions have been compared with the Act
  and found to be consistent. They are primarily
  provided for those licenses that do not have
  revocation clauses.
• The second issue has been addressed earlier.

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RESPONSE TO COMMENTS

• Comment
• NCC should adopt best practice principles in the
  Enforcement Regulations and there should be no
  room for home-grown prescriptions since the
  telecommunications business is a global business
  with global standards.
• RESPONSE
• The Commission has always adopted international
  best practices in its regulatory practices.
  However where it is necessary to consider local
  conditions the Commission will do so in order to
  ensure that the objectives of the government is
  met.
• In other jurisdictions, regulators have wide
  enforcement powers.

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THANK YOU

• LEGAL DEPARTMENT
• NIGERIAN COMMUNICATIONS COMMISSION