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What the law says about NCC’s 2.3MHz frequency spectrum licensing

By Paul Usoro
Background facts

SO much brouhaha has   been created by the recent 2.3MHz frequency spectrum licensing round by the Nigerian Communications Commission (“NCC” or “the Commission”).

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In capsule, NCC had advertised its planned 2.3MHz_licensing programme on April 30th, 2009 and had invited interested persons to indicate their interest. The process continued to near completion on May 8th, 2009, with the naming of successful bidders.

Thereafter, it was alleged that the Honourable Minister for Communications (“the Minister”), Prof. Dora Akunyili, demanded the annulment of the process and the commencement of a fresh process consequent upon complaints that she received from interested stakeholders in regard to the licensing process. As at date, the NCC is yet to annul the process and the minister is yet to rescind her instructions. It would be fruitful in the present circumstance to examine what the law provides.

Licensing and procedures
The Nigerian Communications Act Cap N97 Laws of the Federation of Nigeria, 2004 (“NCA” or “the Act”) is the Bible for the industry and should guide the minister and the NCC in this matter. Section 4(1)(e) of the Act vests NCC with sole responsibility for “granting and renewing communications licences . . . in accordance with the provisions of this Act and monitoring and enforcing compliance with licence terms and conditions by licensees.”

In Section 32(1) of the Act, the NCC’s responsibility therefore is amplified further and made unequivocal with the stipulation that “the Commission shall issue communications licences for the operation and provision of communications services or facilities by way of class or individual licences on such terms and conditions as the Commission may from time to time determine taking into consideration the objectives of this Act and the provisions of section 33(3) of this Act.”

Now, the present imbroglio, as PUC Journal understands it, is not about the licensing powers of the NCC per se, but more about the licensing procedures. Who is responsible, under the Act, for establishing the licensing procedures? Again, it is the NCC that has sole responsibility therefor. Section 33(2) of the Act leaves no one in any doubt on this issue when it stipulates “subject to subsection (3) of this section, the Commission shall from time to time determine and publish its licensing procedures which may include but shall not be limited to auction, selection processes, public tender invitation or competitive bidding processes.”

In drawing up the licensing procedures; however, the NCC must be guided by the objectives of the Act and in particular, the principles that are outlined in Section 33(3) of the Act which are transparency, fairness and non discrimination,efficient use and management of radio frequencies,available numbers under the national numbering plan, the need to promote fair competition and investment in the communications industry, the need to provide modern, qualitative, affordable and readily available communications services in all parts of Nigeria, and such other principles and considerations as the Commission may from time to time consider necessary and in the national interest.

In the event that the NCC deviates from these guiding principles, the Act provides remedies for aggrieved persons. However, just before addressing the remedies of and for such aggrieved persons, we need to examine the place of the minister generally under the Communications Act.

As a set out, it needs to be stated that the NCA established and envisaged NCC as a regulatory and licensing agency that is independent of the minister. This independence is captured in Chapter III Part 1 of the NCA, which provides for the functions of the minister. Section 23 of the Act gives the minister the following responsibilities and functions:

the formulation, determination and monitoring, of the general policy for the communications sector in Nigeria with a view to ensuring, amongst others, the utilisation of the sector as a platform for the economic and social development of Nigeria, the negotiation and execution of international communications treaties and agreements, on behalf of Nigeria, between sovereign countries and international organisations and bodies, and the representation of Nigeria, in conjunction with the Commission, at proceedings of international organisations and fora on matters relating to communications.

To reinforce the independence of the Commission and erase any doubts whatsoever in that regard, Section 25(2) of the Act stipulates, “in the execution of his functions and relationship with the Commission, the Minister shall at all times ensure that the independence of the Commission, in regard to the discharge of its functions and operations under this Act, is protected and not compromised in any manner whatsoever.”

In effect, the NCC, pursuant to the NCA, has complete control over its regulatory and licensing responsibilities and functions.

But of course, those regulatory and licensing functions must be exercised in the context and within the framework of the “general policy for the communications sector in Nigeria,” the “formulation, determination and monitoring” of which are within the purview of the minister’s statutory responsibility.

Now, we return to the remedies under the NCA for a person that is aggrieved by NCC’s decisions under the Act. Section 86(1) of the Act anticipated that not everyone would be satisfied with NCC’s decisions under the Act and therefore provides, “a person who is aggrieved or whose interest is adversely affected by any decision of the Commission made pursuant to the exercise of the powers and functions under this Act or its subsidiary legislation (‘aggrieved person’) may request in writing to the Commission for a statement of the reasons for the decision.
It is important to note that the scope of such complaints is very wide and covers “any decision of the Commission made pursuant to the exercise of the powers and functions under this Act or its subsidiary legislation.”

That includes any NCC decision in regard to any licensing procedures e.g. the 2.3MHz licensing procedure. Upon receipt of “such written request by an aggrieved person”, the Commission is mandatorily required under Section 86(2) of the Act to “provide a copy of a statement of reasons for the decision and any relevant information taken into account in making the decision.”

The Act again envisaged that the aggrieved person may not be satisfied with the NCC statement of reasons and therefore stipulates in Section 87(1) of the Act, “an aggrieved person may at any time within but not later than 30 days after the date of receipt of the Commission’s statement of reasons . . . request the Commission in writing for a review of the Commission’s decision and specify therein the reasons and basis for his request.”

Upon receipt of such request, the NCC is mandatorily required pursuant to Section 87(2) of the Act “to review its decision taking into consideration the submissions of the aggrieved person.”

As a follow_up, Section 87(4) of the Act provides, “the Commission shall not later than 60 days from the date of receipt of the aggrieved person’s written submissions, conclude its review of the decision and inform the aggrieved person in writing of its final decision thereon and the reasons therefor.”

It is still possible that the aggrieved person will be unsatisfied with the NCC’s final decision on the matter. In that event, Section 88(1) of the Act stipulates that such “an aggrieved person may appeal to the Court for a judicial review of the Commission’s decision or other action” provided that, as further stipulated in Section 88(3) thereof, “a person shall not apply to the Court for a judicial review unless that person has first exhausted all other remedies provided under this Act.”

Now, the review process as outlined above makes no room for complaints to be lodged by aggrieved persons with the minister or for the giving of ministerial directives to the NCC. The Act stipulates a direct complaint channel between the aggrieved person and the NCC and in the event that the NCC does not satisfactorily resolve the complaint, recourse may be had by the aggrieved person to the judicial process.

It merely remains to address some poorly defined complaints about NCC’s competence to allocate spectrum frequencies independent of National Frequency Management Council (“NFMC”) and/or Nigerian Broadcasting Commission (“NBC”). The Communications Act makes the NCC solely responsible for the management of the communications spectrum. Section 4(1)(j) of the Act is explicit in this regard by stipulating that the Commission shall have responsibility for the “management and administration of frequency spectrum for the communications sector and assisting the National Frequency Management . . . Council in developing a national frequency plan.

The NCA indeed acknowledges that the NCC is but one of the statutory bodies with responsibility for allocating frequency spectrum to end_users _ NBC, for example, is another _ and therefore established the NFMC as a central clearing house. NFMC is therefore required by Section 28 of the Act to, inter alia, “carry out bulk trans_sectoral allocation of spectrum to statutory bodies that are authorised by enabling laws to allocate spectrum to end_users, and . . . receive and collate returns and statistics on spectrum allocation to end_users from the statutory bodies specified in paragraph (e) of this section and co_ordinate their respective activities.”

If the NFMC had, prior to the controversial licensing exercise, released the 2.3MHz frequency spectrum band to the NCC for onward allocation to end_users, pursuant to Section 28(e) of the NCA, then that is the entirety of the NFMC’s function and responsibility under the Act. Thereafter, the NCC has sole responsibility for the allocation of the spectrum slots to end_users pursuant to Section 4(1)(j) of the Act.

We must not be taken to suggest that the minister cannot proffer suggestions or pass on complaints from aggrieved persons to the NCC. But of course the minister can and should make requisite suggestions and contributions to the NCC on how best to improve communications services. However, such suggestions and contributions must not encroach upon the independence of the NCC, which is statutorily provided for in Section 25(2) of the NCA.

Where aggrieved persons complain to the minister, it would, in our view, be in order for the minister to pass on such complaints to the NCC for due consideration. However, simultaneous with the onward transmission of such complaints to the NCC, such aggrieved persons must always be advised and directed to follow the statutory provisions in the NCA for grievance redress. Only then will we have a regulatory and licensing framework that is governed by laws and is predictable and attractive for continued investments.
Paul Usoro, SAN, is a foremost Nigerian telecom lawyer



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