Telecoms & Media 2020

October 3, 2020

Regulatory and institutional structure 

1 Summarise the regulatory framework for the communications  sector. Do any foreign ownership restrictions apply to  communications services? 

Nigeria’s communications sector is primarily regulated by the Nigerian  Communications Act  (NCA) and the  Wireless Telegraphy Act  (WTA).  The NCA established the Nigerian Communications Commission (NCC),  which is charged with the responsibility of regulating the communications sector. The Minister of Communications and Digital Economy (the  Minister) under the NCA is  responsible for  the formulation, determi nation and monitoring of the general policy for the communications  sector with a view to ensuring, among other things, 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 coun tries and international organisations and bodies, and the representation  of Nigeria, in conjunction with the NCC, at proceedings of international  organisations and on matters relating to communications.  Under the  NCA, the NCC is authorised to make and publish regulations and guide lines to give effect to the full provisions of the NCA, among other things. 

The WTA sets out the framework for regulating the use of

wireless  telegraphy in Nigeria. 

Foreign ownership restriction does not apply to the provision of  communications services in Nigeria. A company with foreign ownership,  as long as it is incorporated in Nigeria, is eligible to apply for a licence  to provide communications services. Under the Nigerian Investment  Promotion Commission Act, a foreign national can own up to 100 per  cent of a business or can invest in any business except those on the  negative list. None of the communications services authorised in Nigeria  are on the negative list. 

Authorisation/licensing regime 

2 Describe the authorisation or licensing regime. 

Under the NCA, there are two broad licensing frameworks: • an individual licence, which is an authorisation in which the terms,  conditions,  obligations, scope and limitations are specific to the  service being provided.  Some of the authorised  activities  are:  internet services, fixed wireless access, unified access services,  electronic directory services, internet exchange, international  gateway, international cable infrastructure and landing station  services, collocation services and commercial basic radio commu nications network services; and 

  • a class licence, which is a general authorisation in which the terms  and conditions and obligations are common to all licence holders. It  requires only registration with the NCC for applicants to commence  

operation. Some of the services subject to a class licence are sales  and installation of terminal equipment (including mobile cellular  phones and HF, VHF/UHF radio, etc), repairs and maintenance of  telecoms facilities, cabling services, telecentres, cybercafes and  the operation of public payphones.  

An entity intending to carry out a service subject to an individual licence  shall apply to the NCC in the prescribed form upon the payment of the  administrative fee (usually 5 per cent of the licence fee) and the licence  fee. A person intending to operate under a class licence is to submit a  registration notice in the prescribed form and pay a registration fee of  10,000 naira to the NCC. In accordance with the NCA, a licence applicant  must receive a response to the application within 90 days of submis sion.  However, an offer letter is normally issued to applicants for  a class licence if the application is complete. For individual licences,  depending on the service and completeness of the required informa 

tion, the conclusion of the process can take between four and 12 weeks.  The duration of a licence depends on the type of service authorised or  spectrum licensed.  

The duration of a licence depends on the type of service author ised or spectrum licensed. The national carrier licence and international  gateway licence are valid for 20 years. The unified access service  licence is valid for a term of 15 years, while a digital mobile licence  (DML) authorising the use of a specified mobile spectrum is valid for a  term of 15 years. An internet service, paging, prepaid calling card and  special numbering services licence are valid for a term of five years. The  licence fees payable depends on the type of service. Fees payable are  fixed by the NCC and published on its website. In addition to licence fees,  a prospective licensee is required to pay an administrative charge and,  upon grant of the licence, a licensee shall pay an annual operating levy  calculated on the basis of net revenue for network operators and gross  revenue for non-network operators. 

Fixed, mobile and satellite services are regulated and licensed  under the NCA. To  operate any of these services a licence must be  obtained from the NCC. As these services are operator-specific, they  fall under the individual licence category. In Nigeria, mobile telecom 

munications services are differentiated based on whether the operator  is authorised by a DML, fixed wireless access licence (FWAL) or unified  access service licence. A DML authorises an operator to use appropriate  equipment in a designated part of the electromagnetic spectrum and  permits it to operate a network for the provision of public telecommu 

nications services. A FWAL authorises an operator to use appropriate  equipment in a designated part of the electromagnetic spectrum for a  term of five years (with renewal for a further five years) and permits  it to operate a network for the provision of public telecommunica 

tions service. FWALs are granted on a regional basis to reflect the 36  Nigerian states and the federal capital territory, with operators wishing  to achieve national coverage required to obtain licences in each of the  licensing regions. In 2002, the NCC in authorising FWAL services also

offered 42MHz paired in the 3.5GHz band, and a total of 28MHz paired  in the 3.5GHz band across the 37 licensing regions of Nigeria to 22 new  licensees. 

In 2007, the NCC introduced the unified access service licence  (UASL) scheme and allocated 40MHz of paired spectrum in the 2GHz  band in four equal blocks of 10MHz paired spectrum. On successful  allocation of the spectrum, the allottees were issued with a spectrum  licence and, where necessary, a UASL. The UASL authorises the holder  to provide both fixed and mobile services including voice and data, and  imposes special conditions requiring its holders to build and operate a  telecommunications network to provide voice telephony, video services,  multimedia services, web browsing, real-time video streaming, video  surveillance, network gaming, email, SMS, file transfer, broadband data  and location-based services, and other services that may be author ised, and that the 3G network be built and operated according to certain  defined technical standards. 

For  broadband  internet services, a wholesale wireless access  service licence (WWASL) authorises the holder to construct, main tain, operate and use a network consisting of a mobile communication  system, a fixed wireless access telecommunications system, or a  combination of any of these systems comprising radio or satellite or  their combination, within Nigeria, deployed for providing point-to-point  or switched/unswitched point-to-multipoint communications for the  conveyance of voice, data, video or any kind of message. The WWASL  also authorises the holder to construct, own, operate and maintain an  international gateway, while an infrastructure company licence author 

Flexibility in spectrum use 

3 Do spectrum licences generally specify the permitted use  or is permitted use (fully or partly) unrestricted? Is licensed  spectrum tradable or assignable? 

Yes, an applicant for  a commercial frequency licence  must also hold  a commercial operating licence  and thecommercial operating licence  authorises the provision of a specific service for which the spectrum is  intended to be used.  

Pursuant to the provision of Spectrum Trading Guidelines issued  by the NCC, radio frequency spectrum is tradable, provided such trans actions comply with the eligibility criteria set out in the Guidlines. 

Ex-ante regulatory obligations 

4 Which communications markets and segments are subject to  ex-ante regulation? What remedies may be imposed? 

In April 2013, the NCC undertook a detailed study of the level of competi tion in the Nigerian communications market and identified the following  broad-based markets subject to ex-ante competition regulations:

 

This study also determined that MTN held,  and Globacom and MTN  collectively held significant market power for the mobile voice and  upstream segment respectively. As a result of this, the NCC (in exer cising its power to remedymarket failure and prevent anticompetitive  practices under the Competition Practice Regulations) imposed on  MTN as the operator with significant market power in the mobile voice  market the following obligations: 

  • accounting separation;  
  • collapse of on-net and off-net retail tariff; 
  • submission of required details to the NCC; and  
  • a determination of the pricing principle to address the rates  charged for on-net and off-net calls for all operators in the mobile  voice market. 

In respect of the joint dominance collectively held by Globacom and MTN  in the market for upstream segment, the NCC imposed the following  obligations on both operators: a price cap for wholesale services and a  price floor for retail services as to be determined by the NCC on a peri 

odic basis; accounting separation; and submission of required details  to the NCC.  

In October 2014, the NCC reviewed its direction requiring MTN to  collapse its on-net and off-net retail tariff, by approving a stipulated  differential for MTN’s on-net and off-net call charges. In October 2015,  the NCC, in a bid to ensure sustainability, growth and development of  the data service market, approved the withdrawal of floor price for data  services. The NCC stated that it would restore the floor price if any  distortion is observed within the Nigerian Communication market.  

Pursuant to  Regulations 10–12 of the Telecommunications  Networks Interconnection Regulations 2007 (the Interconnection  Regulations) made by the NCC under its rule-making powers, one or  more communications market relating to interconnection  in which a  licensee has been declared dominant by the NCC would trigger the  application of ex ante regulatory obligations. In this regard, the domi 

nant licensee would be obligated to: 

  • meet all reasonable requests for access to its telecommunications  network, in particular access at any technically feasible points; • adhere to the principle of non-discrimination with regard to inter 

connection offered to other licensed telecommunications operators,  applying similar conditions in similar circumstances to all intercon nected licensed operators providing similar services and providing  the same interconnection facilities and information to other opera tors under the same conditions and quality as it provides for itself  and affiliates and partners;  

  • make available on request to other licensed telecommunication  operators considering interconnection with its network, information  and specifications necessary to facilitate conclusion of an agreement  for interconnection including changes planned for implementation  within the next six months, unless agreed otherwise by the NCC;  

of telecommunications services where such differences can be objec tively justified on the basis of the type of interconnection provided.  A dominant licensee shall also: 

  • give written notice of any proposal to change any charges for inter connection services in accordance with the procedure set out in the  guidelines on interconnection adopted by the NCC and the provi sions of the operating licence;  
  • offer sufficiently unbundled charges for interconnection, so that  the licensed telecommunications operator requesting the intercon nection is not required to pay for any item not strictly related to the  service requested; 
  • maintain a cost accounting system which, in the opinion of the NCC,  is suitable to demonstrate that its charges for interconnection have  been fairly and properly calculated, and provides any information  requested by the NCC; 
  • make available to any person with a legitimate interest on request, a  description of its cost accounting system showing the main catego ries under which costs are grouped and the rules for the allocation  of costs to interconnection. The NCC, or any other competent body  independent of the dominant telecommunications operator and  approved by the NCC, shall verify compliance of the dominant  telecommunications operator with the cost accounting system and  the statement concerning compliance shall be published by the  NCC annually. 

Lastly, if interconnection services are not provided through a structur ally separated subsidiary, the dominant licensee shall: 

  • keep separate accounts as if the telecommunications activities in  question were in fact carried out by legally independent compa nies, so as to identify all elements of cost and revenue with the  basis of their calculation and the detailed attribution methods used; 
  • maintain separate accounts in respect of interconnection services  and its core telecommunications services and the accounts shall  be submitted for independent audit and thereafter published; and  
  • supply financial information to the NCC promptly on request and to  the level of detail required by the NCC. 

Structural or functional separation 

5 Is there a legal basis for requiring structural or functional separation between an operator’s network and service activities? Has structural or functional separation been introduced or is it being contemplated? 

Under the Federal Competition and Consumer Protection Act 2018 (the  Competition Act), the Competition Tribunal is empowered upon receipt  of a monopoly report from the Competition Commission to order the  division of any undertaking by the sale of any part of its shares, assets  or otherwise, if the monopoly cannot be adequately remedied under any ther provision of the Competition Act or is substantially a repeat by that  undertaking of conduct previously found by the Competition Tribunal to  be a prohibited practice. In addition, pursuant to the provisions of the  Competition Practice Regulations, the NCC, in issuing a direction to  remedy an abuse of a dominant position or an anticompetitive practice,  may direct a licensee to make changes in actions or activities including  structural separation of services or businesses, as a means of

eliminating or reducing the abusive or anticompetitive practice.   

Universal service obligations and financing 

6 Outline any universal service obligations. How is provision of  these services financed? 

The Universal Service Provision (USP) Fund established by the NCA  is geared towards promoting the widespread availability of network  services and applications services by encouraging the installation of  network facilities and the provision of network services, application  services and broadband penetration in unserved, underserved areas or  for underserved groups within the community. 

The USP Fund is financed from monies appropriated to the USP  Fund by the National Assembly; contributions from the NCC based on  a portion of the annual levies paid by licensees; and gifts, loans, aids  and such other assets that may from time to time specifically accrue  to the USP Fund. In practice, the USP secretariat created by the NCC is  responsible for implementing and executing USP programmes and USP  projects. The USP board supervises and provides broad policy direc tions for the management of the USP Fund. 

Number allocation and portability 

7 Describe the number allocation scheme and number  portability regime in your jurisdiction. 

The Numbering Regulations 2008 (the Numbering Regulations) regulate  the allocation (or assignment) of numbers. The Numbering Regulations  provide a regulatory framework for the control, planning, administra tion, management and assignment of numbers, pursuant to section  128(1) of the NCA. Under the Numbering Regulations, the holder of a  communications licence may apply in the prescribed form to the NCC to  be assigned numbers (in a set of blocks) by stating:  

  • the name and contact details of the applicant; 
  • the licence under which the application is made; 
  • the services intended to use the assignment; 
  • the geographic areas for completing calls or transmitting messages  to the numbers to be included in the assignment; 
  • the quantity of numbers requested for inclusion in the assignment; • any particular blocks requested for inclusion in the assignment; • the utilisation of the assignment predicted for 12 months after the  grant of the assignment; 
  • the current utilisations of existing assignments to the applicant for  the intended services; 
  • an indication of which, if any, portions of the application are confi dential to the NCC; 
  • any other information that the applicant considers necessary or  appropriate to justify the application; and 
  • any other information that the NCC may, from time to time, require  to assess the application. 

In making a decision on an application for an assignment, the NCC shall  take into account factors including but not limited to: 

  • any earlier decisions about assignments to the applicant or other  licensees for service similar to the intended services; 
  • any statements in the licence of the applicant about eligibility for  providing services or being assigned numbers; 
  • the usage conditions; 
  • the digit analysis capabilities of communications networks that are  operated in Nigeria; 
  • the utilisation of the assignment predicted for 12 months after the  grant of the assignment over the next three years; 
  • the current utilisations of existing assignments to the applicant for  the intended services; and 
  • the quantity and fragmentation of blocks that have not been  assigned; and whether or not the licensee has failed to fulfil an obli gation in the Numbering Regulations or the National Numbering  Plan, or any other numbering related obligation under the Act, has  committed a contravention of its regulatory obligation. 

The Nigerian Mobile Number Portability Business Rules and Port Order  Processes (the MNP Business Rules) sets out the regulatory, legal and  technical framework for implementing MNP in Nigeria. The NCC has  also issued the Mobile Number Portability Regulations 2014 to provide  a regulatory framework for the operation of MNP in Nigeria. Under  the terms of the MNP Business Rules, MNP is obligatory for all mobile  network operator (MNOs) and is currently available across only Global  Systems for Mobile  (GSM)  networks (although number portability is  intended to be implemented in phases that will cover Code Division  Multiple Access (CDMA), fixed networks and location). 

Under the MNP Business Rules, MNP is ‘recipient led’. To initiate a  porting request, the recipient operator would receive a porting request  from a subscriber to port their number. The recipient operator, number  portability clearing house and donor operator then exchange messages  to validate the porting request. Porting is free and is normally completed  within 48 hours. 

A port request, however, can be rejected for a number of reasons  including where the number is not included in the Nigerian numbering  plan, where the number was ported within the last 90 days, where the  number is not registered in the subscriber information database and  where the number is already subject to a pending port request. 

Customer terms and conditions 

8 Are customer terms and conditions in the communications  sector subject to specific rules? 

Yes, the NCA requires each licensee to prepare a consumer code for  their respective customers and such consumer code shall be subject  to prior approval and ratification by the NCC. The individual consumer  code governs the provision of services and related consumer practices  applicable to the licensee. Where the NCC designates an industry body  to be a consumer forum, any consumer code prepared by such industry  body shall be subject to prior approval and ratification by the NCC. A  consumer code prepared by a consumer forum, the NCC or licensees  shall as a minimum contain model procedures for:  

  • reasonably meeting consumer requirements;  
  • the handling of customer complaints and disputes including an  inexpensive arbitration process other than a court;  
  • procedures for the compensation of customers in case of a breach  of a consumer code; and  
  • the protection of consumer information.  

The Consumer Code of Practice Regulation (the Consumer Code  Regulations) also requires that the individual consumer code  after its approval by the NCC be published in at least two national  newspapers (or as the NCC may direct), and the approved indi 

vidual consumer code shall become applicable from the date of its  publication.  

The provisions of the Competition Act, the NCA and the Competition  Practice Regulations may limit the application of certain customer

terms and conditions deemed to be undermining of consumer rights  or anticompetitive in the communications sector. Also, the Regulations  on Enforcement Processes require every licensee to submit the  contents and representations contained in any promotions of prod 

ucts or services to the NCC for its prior approval. Failure to obtain  the required approval shall constitute a contravention under these  Regulations. 

Net neutrality 

9 Are there limits on an internet service provider’s freedom to control or prioritise the type or source of data that  it delivers? Are there any other specific regulations or  guidelines on net neutrality? 

Under the extant regulatory framework, there are no express  restrictions or limitations regarding an internet service provider’s  (ISP) freedom to control or prioritise the type or source of data  that it delivers. The Guidelinesfor the provision of internet service,  the licence for the provision of internet service, the UASL and the  WWASL do, however, impose some obligations on an ISP and holders  of these licences. An ISP and the respective licensees are required  not to show (whether in respect of charges or other terms or condi tions applied or otherwise) undue preference to or to exercise undue  discrimination against any particular person in respect of the provi 

sion of a service or the connection of any equipment approved  by the NCC. 

In addition, the NCC has developed a Draft Internet Industry Code  of Practice (the Draft Code). With respect to net neutrality, the Draft  Code inter alia: 

  • prescribes measures that seek to guarantee the rights of internet  users to an open internet;  
  • imposes specific transparency obligation on Internet Access  Service Providers (IASPs) with respect to performance, tech nical and commercial terms of its internet access service in a  manner that is sufficient for consumers and third parties to make  informed choices regarding their uses of such services;  
  • imposes a positive obligation on IASPs when providing internet  access service, to treat all traffic equally, without discrimina tion, restriction or interference, independently of its sender or  receiver, content, application or service, or terminal equipment;  
  • bars IASPs from blocking lawful content on the internet, unless  under condition of reasonable network management;  • bars IASPs from degrading or impairing lawful internet traffic  unless under condition of reasonable network management;  • bars IASPs from engaging in paid-prioritisation;  • prescribes the circumstance in which zero-rating is  permissible; and 
  • sets out circumstances that warrant the use of reasonable  network management practices.  

Platform regulation 

10 Is there specific legislation or regulation in place, and have there been any enforcement initiatives relating to digital  platforms? 

Except for the Framework and Guidelines for the Use of Social Media  Platforms in Public Institutions that provides guidance on the use of  social media within a public institution’s  communications  environ ment,  issued by the National Information Technology Development  Agency (NITDA) in January 2019,  there is no specific legislation or  regulation in respect of digital platforms. 

Next-Generation-Access (NGA) networks 

11 Are there specific regulatory obligations applicable to  NGA networks? Is there a government financial scheme to  promote basic broadband or NGA broadband penetration? 

Yes, in addition to the application of regulatory obligations ordinarily  applicable to other category of communications licensees, the holder of  the WWASL will be required by the licence to, among other obligations,  roll out services at least as follows: three state capitals in year one,  four additional state capitals in year two, six additional state capitals in  year three, 12 additional state capitals in year four, 12 additional state  capitals in year five and two-thirds of all local government headquar ters in the remaining licence period. Also, a WWASL requires the holder  to supply customer premises equipment adapted in such a way as to  reasonably accommodate the needs of hearing-impaired individuals. 

Notwithstanding the application of the USP fund for the facilita tion of broadband penetration in Nigeria, there are other NCC-initiated  projects such as the Wire Nigeria project aimed at facilitating the  rollout of fibre optic cable infrastructure in which subsidies based on  per kilometre of fibre and incentives to encourage rapid deployment  of non-commercially viable routes are provided. The State Accelerated  Broadband Initiative is aimed at stimulating the demand for internet  services and to drive affordable home broadband prices where subsidies  on terminal equipment based on broadband infrastructure deployed in  state capitals and urban and semi-urban centres are provided to opera 

tors. Also, under the ongoing Open Access Model for Next Generation  Fibre Optic Broadband Network (Open Access Model), there shall be a  one-off government financial support to facilitate the rollout of the infra structure companies. This financial support is in the sum of 65 billion  naira and  will be based on meeting pre-identified targets at certain  points in time during the rollout of the broadband infrastructure phase. 

Data protection 

12 Is there a specific data protection regime applicable to the  communications sector? 

Part VI of the General Code (in appendix I of the Consumer Code  Regulations) sets out the responsibilities of a licensee in the protection  of individual consumer information. These responsibilities stipulate that  a licensee may collect and maintain information on individual consumers  reasonably required for its business purposes and that the collection  and maintenance of such information on individual consumers shall be: 

  • fairly and lawfully collected and processed;  
  • processed for limited and identified purposes;  
  • relevant and not excessive;  
  • accurate;  
  • not kept longer than necessary;  
  • processed in accordance with the consumer’s other rights;  • protected against improper or accidental disclosure; and  • not transferred to any party except as permitted by any terms and  

conditions agreed with the consumer, as permitted by any permis sion or approval of the NCC, or as otherwise permitted or required  by other applicable laws or regulations. 

Licensees are required by the Consumer Code Regulations to adopt  similar provisions guaranteeing the same level of protection (or higher)  in the production of their own individual consumer codes. 

In addition, licensees are required by these responsibilities to meet  generally accepted fair information principles including: • providing notice as to what individual consumer information they  collect, and its use or disclosure;  

  • the choices consumers have with regard to the collection, use and  disclosure of that information; 
    • the access consumers have to that information, including to ensure  its accuracy;  
    • the security measures taken to protect the information; and  • the enforcement and redress mechanisms that are in place to  remedy any failure to observe these measures. 
  • In addition, the NITDA Data Protection Regulations 2019, enacted by the  NITDA, specify the conditions in which personal data may be processed.  The NITDA Data Protection Regulations set out the lawful basis for  processing personal data, the rights of the data subject, obligations of  data controllers and conditions under which the cross-border transfer  of personal data is permissible. NITDA Data Protection Regulations  apply to all sectors of Nigeria’s economy, including the communica tions sector.   Cybersecurity 13 Is there specific legislation or regulation in place concerning  cybersecurity or network security in your jurisdiction? Yes. The Cybercrime Act 2015 (the Cybercrime Act) provides a unified  and comprehensive legal framework for the prohibition, prevention,  detection, prosecution and punishment of cybercrimes in Nigeria. The  Cybercrime Act also ensures the protection of critical national informa tion infrastructure and promotes cybersecurity and the protection of  computer systems and networks, electronic communications, data and  computer programs, intellectual property and privacy rights. The Cybercrime Act and General Code (applicable in the telecom munications sector) make provision for the application of cybersecurity  techniques as it relates to the protection of personal or customer infor mation or when acting as a data controller. The Cybercrime Act requires  telecommunication service providers to take appropriate (cyberse curity) measures to safeguard the confidentiality of the data retained,  processed or retrieved for the purpose of law enforcement. The General  Code in turn, requires licensees to include in their fair information  principles the (cyber)security measures taken to protect customer  information, and the enforcement and redress mechanisms that are in  place to remedy any failure to observe these measures. 

    The NITDA Data Protection Regulation requires that anyone  involved in data processing or the control of data shall develop security  measures to protect data. Such measures include, but are not limited  to, protecting systems from hackers, setting up firewalls, storing data  securely with access to specific authorised individuals, employing  data encryption technologies, developing an organisational policy for  handling personal data (and other sensitive or confidential data), protec tion of emailing systems and continuous capacity building for staff. 

    Big data 

    14 Is there specific legislation or regulation in place, and have  there been any enforcement initiatives in your jurisdiction,  addressing the legal challenges raised by big data? 

    There is no specific legislation on big data. However, the Cybercrime  Act has as one of its objectives the promotion of cybersecurity and the  protection of computer systems and networks, electronic communica tions, data and computer programs, intellectual property and privacy  rights. The Cybercrime Act uses the term ‘data’, which it defines as  ‘representations of information or of concepts that are being prepared  or have been prepared in a form suitable for use in a computer’. The  Cybercrime Act imposes a number of obligations relating to the reten 

    tion and confidentiality of data on any public or private entity that  provides to users of its services the ability to communicate by means of  a computer system, electronic communication devices, mobile networks  and entities that process or store computer data on behalf of such  

    communication service or users of such service. We are unaware of  any enforcement initiatives in this regard, that have occurred since the  enactment of the Cybercrime Act. 

    Data localisation 

    15 Are there any laws or regulations that require data to be  stored locally in the jurisdiction? 

    Yes. The Guidelines on Nigerian Content in ICT issued by NITDA require  ICT companies and data and information management firms in Nigeria  to host, respectively, all subscriber and consumer data and government  data locally within the country and further provides that they shall not,  for any reason, host any government data outside the country without  an express approval from NITDA and the Secretary to the government  of the Federation. 

    Key trends and expected changes 

    16 Summarise the key emerging trends and hot topics in  communications regulation in your jurisdiction. 

    Several key changes have occurred in the past year. The main ones are; • the President approved the redesignation of the Federal Ministry  of Communications to the Federal Ministry of Communications  and Digital Economy. This is in line with the intention to accelerate  growth in the digital economy; and 

    • the Federal Government of Nigeria released the National  Digital Economy Policy and Strategy, which is pillared on eight  policy objectives, namely: 
    • developmental regulation; 
    • digital literacy and skills; 
    • solid infrastructure; 
    • service infrastructure; 
    • digital services development and promotion; 
    • soft infrastructure; 
    • digital society and emerging technology; and 
    • indigenous content promotion and adoption. 

    To implement the National Digital Economy Policy and Strategy, the  Federal Government of Nigeria constituted an expert review committee  with the mandate to produce an actionable plan: 

    • The uniform Right of Way (RoW) charges of 145 naira per linear  meter for the siting of telecommunications infrastructure across  Nigeria has not been adhered to by some states that charge in  excess of the uniform RoW. This continues to present several cost  challenges for operators in these states. At the time of writing,  the federal government and the governors of states in Nigeria are  discussing how to resolve the RoW charges.  
    • The National Broadband Plan expired in 2018, and on 10 March 2020  a new National Broadband Plan with milestones was produced by  a committee set up by the Minister of Communication and Digital  Economy, to be achieved between 2020 and 2025. The Broadband  Plan is designed to deliver data download speeds across Nigeria of  a minimum 25Mbps in urban areas, and 10Mbps in rural areas, witheffective coverage available to at least 90 per cent of the population  by 2025 at a price not more than 390 naira per 1GB of data (ie, 2 per  cent of median income or 1 per cent of minimum wage). 
      • In the last quarter of 2019, MTN, one of the GSM operators in Nigeria  conducted a successful 5G trial test, a first for any country in West  Africa. According to MTN, they intend to commercially deploy 5G  network technology nationwide before the end of 2020. 
      • NCC, in conjunction with Nigerian Broadcasting Commission (NBC),  released a draft Guidelines on the use of Television White Spaces  in Nigeria. The Guidelines seek to provide a framework to enable  license-exempt transmitters to operate in the UHF band. This usage  is allocated on a primary basis to the broadcast television service,  on frequencies and at locations where the spectrum is either not  assigned to licensed services or not in use at particular times, while  protecting primary users from receiving harmful interference.  These licence-exempt radio transmitters allow for the provision  of affordable broadband and internet access in unserved and  underserved areas within Nigeria, and support the development of  internet of things applications, including in the agriculture sector. 
        • The NCC has published a set of draft Regulations, which are under  consideration. These Regulations are: 
        • Frequency Spectrum (Fees and Pricing, Etc.) (Amendment)  Regulations 2009, which seek to amend the Frequency  Spectrum (Fees and Pricing, etc) Regulations 2004 by  amending the Band Factor under PART A of the Second  Schedule thereto by adding new band factors;  
        • the Nigerian Communications Industry E-waste Regulations  2018, which,  inter alia  seek to  provide regulatory frame work for the management and control of e-waste in the  Telecommunications Industry; and  
        • the Consumer Code of Practice Regulations 2018, which seeks  to amend the Consumer Code. 

        MEDIA 

        Regulatory and institutional structure

        17 Summarise the regulatory framework for the media sector in your jurisdiction.

        The National Broadcasting Commission Act (the NBC Act) regulates
        the broadcasting sector in Nigeria. The NBC Act also established the
        NBC, which is responsible for regulating the broadcasting industry.
        There is also the Broadcasting Code (BC), which was made by the NBC under the NBC Act. The BC represents the minimum standard for broad-
        casting in Nigeria.

      • Ownership restrictions 18 Do any foreign ownership restrictions apply to media  services? Is the ownership or control of broadcasters  otherwise restricted? Are there any regulations in relation  to the cross-ownership of media companies, including radio,  television and newspapers? Yes, the ownership of broadcasting networks is restricted. The NBC Act
        requires the NBC to satisfy itself when granting a broadcasting licence
        that the applicant can demonstrate to the satisfaction of the NBC that
        he or she is not applying on behalf of any foreign interest. The NBC is
        also prohibited from granting a license to either a religious organization or a political party. Foreign investors can therefore participate in broad-
        casting activities, provided that the majority of shares in a broadcasting company are held by Nigerians. In terms of cross-ownership in the broadcasting industry, the NBC Act provides that a person is prohibited from having ‘controlling shares in more than two of each of the broadcast sectors of transmission’. Apart from the provisions in the NBC Act, there are no regulations regarding cross-ownership of media companies.Licensing requirements 19 What are the licensing requirements for broadcasting,  including the fees payable and the timescale for the  necessary authorisations?To operate a radio, sound, television, cable or satellite station in Nigeria,  an application in the prescribed form is addressed to the Director General (DG) of the NBC requesting approval to purchase a set of  application forms indicating the licence category and proposed location.  If granted, the applicant would be required to complete the application  form and submit it to the DG. The form is accompanied by a certificate  of incorporation, a certified copy of the company’s memorandum and  articles of association, an engineering design of systems including feasi 

        bility study, a letter of undertaking to abide by the terms of the licence  and a letter of reference from the company’s bankers. 

        Section 9(1) of the NBC Act sets out the criteria used by the NBC in  the grant of a broadcast licence and these require the applicant to be a  corporate body registered in Nigeria or a broadcasting station owned,  established or operated by the federal, state or local government. The  NBC is also required to satisfy itself that the applicant is not applying on  behalf of any foreign interest. If the NBC is satisfied with the application,  it will make recommendation through the Minister of Information to the  President for the grant of a license. 

        Foreign programmes and local content requirements

        20 Are there any regulations concerning the broadcasting  of foreign-produced programmes? Do the rules require a  minimum amount of local content? What types of media fall  outside this regime? 

        The NBC Act and the BC regulate the broadcasting of programmes and  the minimum local and foreign programme content. Foreign content is  permissible provided it is essential and relevant to the entertainment,  education and information of Nigerians. The BC stipulates that a broad

        caster relaying foreign content shall ensure the proper acquisition of  broadcasting rights to such content. In addition, with the exception of  special religious and sports programmes or events of national impor tance, Nigerian broadcasters shall not link up live to foreign programmes. 

        A licensee is required to adhere to a minimum of 60 per cent local  content for open television and 80 per cent local content for radio. The  cable and satellite retransmission stations are mandated to reflect a  minimum of 20 per cent local content in their programming. In addition,  the NBC issued a regulation on local content in February 2009, which  requires all terrestrial television stations operating in the country to air  only Nigerian local content during peak family viewing hours, between  seven o’clock and ten o’clock in the evening. 

        There are no specific regulations on broadcast of foreign  programmes to mobile devices. 

        Advertising 

        21 How is broadcast media advertising regulated? Is online  advertising subject to the same regulation? 

        Broadcast media advertising is regulated by the NBC Act, the BC, the  Advertising Practitioners Council of Nigeria Act  (the APCON Act), the  Nigerian Code of Advertising Practice and Sales Promotion and the  APCON Vetting Guidelines (the Vetting Guidelines). Under the Vetting  Guidelines, any broadcast media advertising material must be submitted  for approval by the Advertising Standards Panel before it is aired. 

        By the provisions of the BC, all regulations governing broadcasting  including the rules on programmes and advertising shall apply to  internet broadcasting. 

        Must-carry obligations 

        22 Are there regulations specifying a basic package of  programmes that must be carried by operators’ broadcasting  distribution networks? Is there a mechanism for financing the  costs of such obligations? 

        Yes, under the BC a terrestrial subscription service is required to carry a  free-to-air terrestrial public broadcasting station in its area of coverage  free of charge. A satellite subscription service is also required by the BC  to carry a free-to-air national public broadcasting station free of charge. 

        At present, there is no mechanism for financing these obligations  in Nigeria. 

        Regulation of new media content 

        23 Is new media content and its delivery regulated differently  from traditional broadcast media? How? 

        Internet radio and broadcasting streaming signals from and into Nigeria  requires a licence from the NBC. In practice, most of the internet radio  stations operating in Nigeria already have a radio (or other broadcast)  licence issued by the NBC. The BC also requires the local content for  this category of licence to be 80 per cent. The regulations and conditions  governing news, programmes, advertising and sponsorship in relation  to other forms of broadcasting or broadcast licence are also applicable  to internet broadcasting. 

        Digital switchover 

        24 When is the switchover from analogue to digital broadcasting  required or when did it occur? How will radio frequencies  freed up by the switchover be reallocated? 

        In 2016, the federal government proposed 20 June 2017 as the new date  when Nigeria will switch over from analogue to digital broadcasting.  As at the time of writing, the digital switchover has been rolled-out in  phases in parts of Nigeria and is ongoing. 

        The Nigerian Communications Commission is proposing that the  radio frequencies freed up should be reallocated to mobile broadband. 

        Digital formats 

        25 Does regulation restrict how broadcasters can use their  spectrum? 

        Yes. Broadcasters are required to use the spectrum assigned to them  in accordance with the technical specifications and conditions specified  in their licence. 

        Media plurality 

        26 Is there any process for assessing or regulating media  plurality (or a similar concept) in your jurisdiction? May the  authorities require companies to take any steps as a result of  such an assessment? 

        There are no express provisions respecting media plurality under  the NBC Act. However, the BC does incorporate some provisions that  appear to support media pluralism. For instance, the BC provides that  panellists in discussion programmes are expected to reflect various  viewpoints, and for political broadcasts equal airtime shall be provided  to all political parties or views, with particular regard to the duration  and the particular time within which such programmes can be broad cast during political campaign periods. 

        Key trends and expected changes 

        27 Provide a summary of key emerging trends and hot topics in  media regulation in your country. 

        Completion of  the digital switchover  continues to be the most  pressing issue in the broadcasting sector and is being  rolled out in  phases across parts of Nigeria. At the time of writing, this process is  ongoing, and we expect it to continue in the coming months until full  transition is attained. 

        REGULATORY AGENCIES AND COMPETITION LAW 

        Regulatory agencies 

        28 Which body or bodies regulate the communications and  media sectors? Is the communications regulator separate  from the broadcasting or antitrust regulator? Are there  mechanisms to avoid conflicting jurisdiction? Is there a  specific mechanism to ensure the consistent application of  competition and sectoral regulation? 

        The Nigerian Communications Commission (NCC) and the  Nigerian  Broadcasting Commission (NBC) respectively regulate the communica tions and broadcast sectors, while the Competition Commission created  by the Competition Act is the lead antitrust regulator in Nigeria and is  a separate institution from NCC and NBC. The Competition Commission  is charged with the administration and enforcement of the provisions of  the Competition Act including the approval of mergers and the protec tion and promotion of consumer interests. 

        However, although the Competition Act establishes a concurrent  jurisdiction between the Competition Commission and

        both the NCC  and the NBC in matters of competition enforcement, the Competition  Commission has precedence over both the NCC and the NBC and,  according to the provision of the Competition Act,  all appeals or  request for review of the exercise of the competition power of the NCC  and the NBC shall in the first instance be heard and determined by  the Competition Commission before such appeals can proceed to the  Competition Tribunal established under the Competition Act.  

        Appeal procedure 

        29 How can decisions of the regulators be challenged and on  what bases? 

        Decisions of federal regulatory and administrative bodies such as the  NCC and the NBC are subject to judicial review by the Federal High  Court (FHC) and can be litigated up to the Supreme Court. Decisions can  be challenged on the grounds of lack of authority, breach of the rules of  natural justice, error of law on the face of the record and that the deci 

        sion has been obtained by fraud. Under the NCA, a person dissatisfied  

        or whose interest is adversely affected by any decision of the NCC must  

        comply with a two-stage process within the stipulated time frame,  

        before proceeding to the FHC for a review of the decision of the NCC. A  

        person who is dissatisfied with the decision of the NCC will request that  

        the NCC provide a statement giving the reason for the decision. Upon  

        receipt of the NCC statement of reasons, the person may ask the NCC  

        in writing for a review of its decision specifying the reason and basis  

        for its request. The NCC, upon receipt of the written submission, shall  meet to review its decision, taking into consideration the submission of  the dissatisfied person. It is only after the person has exhausted this  two-stage process that he or she can proceed to court for a review of  the NCC’s decision.  

        With respect to the Competition Commission, the Competition Act  provides that an appeal against the decision of the Commission shall lie  to the Competition Tribunal. 

        Competition law developments 

        30 Describe the main competition law trends and key merger  and antitrust decisions in the communications and media  sectors in your jurisdiction over the past year. 

        NCC is presently investigating a complaint received from the Computer  & Allied Products Dealers Association of Nigeria for anti-competitive practices by some original equipment manufacturers in Nigeria. At the time of writing, the outcome of this investigation has not yet been revealed. In addition, NCC is conducting a market study for the purpose of determining whether ex-ante obligations should be placed on licenses that are found to be dominant.

        Tamuno Atekebo 

        tamuno@sskohn.com 

        Otome Okolo 

        otome@sskohn.com 

        Chukwuyere E Izuogu 

        chukwuyere@sskohn.com 

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