Telecoms & Media 2021

June 5, 2021

COMMUNICATIONS POLICY 

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 communi 

cations sector. The Minister of Communications and Digital Economy  (the Minister) under the NCA is vested with the responsibilities of the  formulation, determination and monitoring of the general policy for the  communications sector in Nigeria to ensure, 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  countries 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 guidelines insofar as it is necessary to give effect to the full provi sions of the NCA, among other reasons. The WTA sets out the framework  for regulating the use of wireless telegraphy in Nigeria. Foreign owner ship restriction does not apply to the provision of communications  services in Nigeria as 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 service authorised in Nigeria is 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 a type of authorisation in which  the terms, conditions and obligations, scope and limitations are  specific to the service being provided. The NCC may issue an indi vidual licence by auction, first-come, first-served, beauty contest  or through a standard administrative procedure. Presently, there  are 26 licence types in the individual licence category. Some of  the activities authorised by an individual licence include internet  services, fixed wireless access, unified access services, electronic  

directory services, internet exchange, international gateway, inter national cable infrastructure, landing station services, collocation  services and commercial basic radio communications network  services; and 

  • a class licence, which is a type of general authorisation in which  the terms and conditions or obligations are common to all license  holders. It requires only registration with the NCC for applicants  to commence operation. Some of the services subject to a class  licence include sales and the installation of terminal equipment  (including mobile phones and HF, VHF or UHF radio, etc), repairs  and maintenance of telecoms facilities, cabling services, telecen tres, cybercafes and the operation of public payphones. 

In terms of issuing a licence by an administrative procedure, 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  processing or administrative fee (usually 5 per

cent of the licence fee)  and the licence fee, while a person intending to operate under a class  licence is to submit a registration notice in the prescribed form and a  registration fee of 10,000 naira to the NCC. Under the NCA, a licence  applicant must receive a response to the application within 90 days of  submitting it. 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 to 12 weeks.  The duration of a licence depends on the type of service authorised 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. On the  other hand, an internet service, paging, prepaid calling card and special  numbering services licence are all 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 based on net revenue for network operators and gross  revenue for non-network operators. 

Fixed, mobile and satellite services are regulated and licensed  under the NCA and 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. In 2001, the NCC licensed four spectrum packages

in the 900MHz and 1,800MHz bands to Mobile Telecommunications  Limited (now ntel), Econet Wireless Nigeria Limited (now Airtel) and  MTN Nigeria Communications Limited for use in the provision of digital  mobile services. These were later joined by Etisalat and Globacom. A  FWAL authorises an operator to use appropriate equipment in a desig 

nated 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 telecommunications 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 or 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 

ises the holder to provide and operate on a wholesale basis an open  access metropolitan fibre network within a designated geographical  area in Nigeria in particular, among other things, to construct, maintain  and operate fibre optic network facilities. 

Commercial satellite services including the operation of space  segments and earth stations, satellite gateway services, the sales  and installation of satellite terminal equipment and the operation of  private network links employing satellite (VSAT) in Nigeria are normally  authorised by either global mobile personal communication by satel 

lite (GMPCS) licence or a domestic VSAT network licence. In addition to  the general conditions applicable to fixed, mobile and satellite services,  a GMPCS licence imposes special conditions requiring the holder to,  among other things: 

  • construct, operate, implement and maintain a GMPCS land earth  station for the purposes of establishing, maintaining, validating and  controlling command functions and communication with the space  segment of a GMPCS system; 
  • deploy a GMPCS network for the purpose of providing one-way or  two point-to-point or point-to-multipoint communications for the  conveyance of voice data or video; 
  • sell telecommunications components and accessories used or  intended for use in the installation of GMPCS terminals; • install GMPCS terminals; 
  • provide activation, billing, maintenance and related management  services for subscribers to GMPCS services, while a domestic  VSAT network licence authorises the holder to provide and operate  

VSAT services, whether one-way or two-way, point to point or  point to multipoint, including voice, data, vision or any other kind  of message for reception within Nigeria or any overseas country; 

  • operate VSAT services using space segment provided by any satel lite organisation approved by NCC; and 
  • provide a hub or gateway within Nigeria and shall provide hub  satellite service to other licensed VSAT operators. 

Public Wi-Fi services are authorised under the Regulatory Guidelines  for the Use of 2.GHz ISM Band for Commercial Telecoms Services.  Under these Guidelines, Wi-Fi hotspots shall, inter alia, be deployed in  the 2GHz ISM band and must be registered and authorised by the NCC.  Also, commercial Wi-Fi hotspot operators must hold a licence for the  provision of internet services. 

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, in line with the Frequency Management Policy, an applicant for a  commercial frequency licence from the NCC must also hold a commer cial operating licence from the NCC (or must have submitted an  application for an operating licence to the NCC). The commercial oper ating licence authorises the provision of a specific service for which the  spectrum is intended to be used. An applicant for a frequency licence  may also be given a frequency reservation pending the outcome of  the processing of his or her commercial operating licence. However,  the frequency licence will be subject to the successful approval of the  commercial licence. 

Under the provision of Spectrum Trading Guidelines issued by the  NCC, radio frequency spectrum is tradable, provided such transactions  comply with the eligibility criteria set out in the Guidelines 

Ex-ante regulatory obligations 

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

Historically, NCC has subjected several communications market to  ex-ante regulation. For instance, in 2013, the NCC undertook a detailed  study of the level of competition in the Nigerian communications market  and identified the following communications for ex-ante regulation. 

Market segment Sub-segment Voice 

  • Mobile telephony (including messaging); and 
  • fixed-line telephony. 

Data 

  • Fixed data, retail data transmission services and leased lines; and • mobile data (eg, dongles, data cards, tablets, internet through  mobile phone connections, eg, 3G, GPRS and Edge). 

Upstream segments 

  • Spectrum; 
  • tower sites; 
  • network equipment; 
  • wholesale broadband or internet access; and 
  • wholesale leased lines and transmission capacity. 

Downstream segments 

  • Handsets or devices (includes the device operating system); and • applications/content (includes m-commerce).The identified markets were further divided into wholesale and retail  sub-segment as follows: 
    • upstream segment; 
    • voice segment; 
    • data segment; 
    • downstream segment; 
    • services provided as wholesale by an operator to other operators; • wholesale broadband access; 
    • wholesale voice termination on voice network; 
    • services provided as wholesale by an operator to other operators; • wholesale leased lines and transmission capacity; • wholesale voice termination on fixed network; 
    • service provided as retail by each individual operator to its  consumers; 
    • retail voice access on mobile networks; 
    • retail broadband or internet access on mobile devices; • supply of applications, content and devices; 
    • service provided as retail by each individual operator to its  consumers; 
    • retail access on fixed networks; 
    • retail broadband or internet access on mobile devices at a  fixed location; 
    • service provided as retail by each individual operator to its  consumers; and 
    • retail leased lines. 

    In this study, the NCC determined that MTN, along with Globacom,  collectively held significant market power for the mobile voice and  upstream segment respectively. As a result, the NCC (in exercising its  power to remedy market failure or 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; 
    • the 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 the 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 periodically; 
    • 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. Also, under Regulations 10  to 12 of the Telecommunications Networks Interconnection Regulations  2007 (the Interconnection Regulations) issued by the NCC, 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 dominant 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 concerning intercon nection 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 oper ators considering interconnection with its network, information and  specifications necessary to facilitate the conclusion of an agreement  for interconnection including changes planned for implementation  within the next six months, unless agreed otherwise by the NCC; 
    • submit to the NCC for approval and publish a reference interconnection offer, describing interconnection offerings, broken down  according to market need and associated terms and conditions  including tariffs; and 
      • provide access to the technical standards and specifications of its  telecommunications network with which another operator shall be  interconnected. 

      Also, the dominant licensee shall, except where the NCC has determined  interconnection rates, set charges for interconnection on objective  criteria and observe the principles of transparency and cost orientation.  The burden of proof that charges are derived from actual costs lies with  the licensed telecommunications operator providing the interconnection  service to its facilities. The dominant licensee may set different tariffs,  terms and conditions for interconnection of different categories of tele communications services where such differences can be objectively  justified based on the type of interconnection provided. A dominant  licensee shall also: 

      • give written notice of any proposal to change any charges for inter connection services under the procedure set out in the guidelines  on interconnection adopted by the NCC and the provisions of the  operating licence; 
      • offer sufficiently unbundled interconnection charges, so that the  licensed telecommunications operator requesting the interconnec tion 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 interconnection charges have  been fairly and properly calculated, and provides any information  requested by the NCC; and 
      • make available to any person with a legitimate interest on request,  a description of its cost accounting system showing the main  categories under which costs are grouped and the rules for the  allocation of interconnection costs. 

      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. Last, if interconnection services are not  provided through a structurally separated subsidiary, the dominant  licensee shall: 

      • keep separate accounts as if the telecommunications activities in  question were carried out by legally independent companies; • 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. 

      It is also pertinent to note that in 2020, the NCC decided to impose manda tory accounting separation obligation on Airtel, EMTS, Globalcom, MTN,  Mainone Cable and IHS (four mobile network operators, a submarine

      cable operator and a collocation and infrastructure sharing provider  respectively). Although this determination did not identify (or define)  any particular communications market, however, one of the key objec tives of the NCC in imposing the accounting separation is to identify and  prevent any undue discrimination or practices that substantially lessens  competition such as cross-subsidisation and margin squeezes, etc. This  determination took effect from 15 July 2020 and the licensees subject  to the determination were to commence the full rollout of accounting  separation by 1 January 2021. Also, licensees with an annual turnover  in excess of 5 billion naira are subject to an accounting separation obli 

      gation under the Guidelines on the Implementation of an Accounting  Separation Framework issued 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 other 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. Also, under 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 elimi nating 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 directions 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, under section 128(1) of

      the NCA. Under the Numbering Regulations, the holder of a communica tions 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 amount 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 deciding 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 operators (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, the 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 clearinghouse 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 several 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 individual 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 products 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? 

      The Internet Industry Code of Practice (the Internet Code) issued by the  NCC on 26 November 2019 sets out the obligation of an internet access  service provider (IASP) regarding the control or prioritisation of the data  that it delivers and other obligations regarding net neutrality. In this  regard, the Internet Code inter alia: 

      prescribes measures that seek to guarantee the rights of internet  users to an open internet; 

      imposes specific transparency obligation on IASPs with respect  to performance, technical 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 discrimination,  restriction or interference, independently of itssender 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. 

        Also, the Guidelines for the provision of internet service, the licence for  the provision of internet service, the UASL and the WWASL do, however,  impose some non-discriminatory obligations on an IASP and holders  of these licences. In this regard, an IASP and the respective licensees  are required not to show (whether in respect of charges or other terms  or conditions applied or otherwise) undue preference to or to exercise  undue discrimination against any particular person in respect of the  provision of a service or the connection of any equipment approved  by the NCC. 

        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, which guides the use of social media  within a public institution’s communications’ environment issued by  the National Information Technology Development Agency (NITDA) in  January 2019, there is no specific legislation or regulation in respect of  digital platforms. However, the NCC, in its Strategic Management Plan  for 2020 – 2024 (SMP 2020 – 2024), has indicated an intention to develop  a framework for regulating over-the-top (OTT) services and 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 categories of communications licensees, the holder  of the WWASL will be required by the licence to, among other obliga tions, 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 headquarters in the remaining  licence period. 

        Also, a WWASL requires the holder to supply customer premises equip ment 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 are based on per  kilometre of fibre and incentives to encourage the rapid deployment of  non-commercially viable routes are provided. The State Accelerated  Broadband Initiative is aimed at stimulating the demand for internet  services and driving 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  infrastructure companies. This 65 billion naira financial support 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 under 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. 

        Also, 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 concerning 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. 

        Also, 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 infor 

        mation infrastructure and promotes cybersecurity and the protection  of computer systems and networks, electronic communications, data  and computer programs, intellectual property and privacy rights. Also,  the National Information Systems and Network Security Standards and  Guidelines 2013 and the Nigerian Cybersecurity Framework 2019 issued  by NITDA prescribe mandatory minimum standards on seven primary  areas of network security and cyber forensic, namely: 

        • categorisation of information; 
        • minimum security requirements; 
        • intrusion detection and protection; 
        • protection of object identifiable information; 
        • securing public web servers; 
        • system firewalls; and 
        • cyber forensic, and further recommended best practice guidance  for public and private sector organisations for instituting measures  for enshrining cybersecurity culture and enthronement of cyber resiliency in Nigeria. 

        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 several obligations relating to the retention  and confidentiality of data on any public or private entity that provides  to users of its services the ability to communicate through 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 information and communi cations technology (ICT) issued by the NITDA require ICT companies  and data and information management firms in Nigeria to host, respec tively, 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 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. 

        Some of the ongoing issues and key changes that have occurred in the  past year include: 

        • The Federal Government of Nigeria and the World Bank have  entered into an agreement in which the World Bank will extend  some credit facilities to Nigeria to support the Nigeria Digital  Identification for Development Project. This project seeks to reform  the identity ecosystem in Nigeria by among other things increasing  the number of persons with a national identification (ID) number,  issued by a robust and inclusive foundational ID system, that  facilitates their access to services. One of the safeguards for the  successful implementation of this project is for Nigeria to enact  comprehensive data protection legislation. To this end, a draft of  the Data Protection Bill sponsored by the Minister has been put  out for public consultation, after which a final version of the draft  is to be formally presented as an executive Bill, to the National  Assembly for their consideration. 
          • In the last quarter of 2020, the NCC constituted a committee to  review the framework for the licensing of Infrastructure Companies  (InfraCo) and to recommend sustainable funding options for the  effective implementation of the proposed national fibre project.  The constitution of the committee is under the requirements of the  National Broadband Plan issued in the first quarter of 2020, and  reports of relevant committees set up by the Federal Executive  Council (FEC), which includes the Inter-Ministerial Review  Committee on Multiple Taxation on Telecommunications Operators  over Right-of-Way (RoW) and the Technical Sub-Committee on  Right-of-Way for Deepening Broadband Penetration in Nigeria. To  date, the committee has met with all the six licensed InfraCos in  Nigeria and is considering the challenges facing the InfraCo project,  the need for accelerated deployment of fibre infrastructure, means  of mitigating the exorbitant RoW charges, among others. 
          • The Minister, under the requirement of the National Broadband  Plan, has constituted the Broadband Implementation Steering  Committee. The Broadband Implementation Steering Committee is  charged with the overall responsibility for ensuring the implemen 

          tation of the National Broadband Plan. 

          • Recognising the benefits of 5G in Nigeria, the NCC issued a consul tation document on the deployment of 5G technology in Nigeria.  Accordingly, the document outlines the strategy that will enable  the deployment of 5G Technology in such a manner that will be  most beneficial to Nigeria and end users. 
          • The NCC decided to impose accounting separation on four MNOs,  a submarine cable operator and a collocation and infrastructure  sharing provider, and thereafter determined that licensees with  an annual turnover in excess of 5 Billion naira are also subject to  an accounting separation obligation underthe Guidelines on the  Implementation of an Accounting Separation Framework issued  by the NCC. 
            • The NCC is considering the implementation of full national roaming  in Nigeria and has issued the following draft regulatory guidelines  for public consultation: 
            • the Guidelines on National Roaming; 
            • the Amended Guidelines on Collocation and Infrastructure  Sharing and AIS Business Rules; and 
            • the Mobile Virtual Network Operator (MVNO) Licence  Framework. As at the time of this writing, this process is yet  to be concluded. 
            • The NCC has released its SMP 2020 – 2024, which comprises  five pillars: 
            • Regulatory Excellence, in which the NCC aims to develop  adaptive and sustainable regulation to ensure efficient regu latory service to all stakeholders; 
            • Universal Broadband Access, in which NCC aims to achieve  pervasive and inclusive broadband access by providing incen tives for broadband deployment in Nigeria; 
            • Promote Development of Digital Economy, in which NCC  will provide the necessary regulations and initiatives for  the achievement of the Digital Economy policy thrust of the  Government; 
            • Market Development, in which the NCC, through its policies  and directions, will ensure a dynamic market that drives inno vation necessary for economic growth; and 
            • Strategic Partnering, in which the NCC aims at mutually  sustainable collaboration with relevant stakeholders. 

            Among the initiatives sought to be undertaken by the NCC under the  SMP 2020 – 2024 are to: 

            • develop a framework for regulating OTT services; • determine the rollout incentives for broadband infrastructure; 
            • review the Spectrum Trading Guidelines; 
            • review and roll out minimum financial health requirements for  licensed operators; 
            • facilitate the passage of critical national infrastructure bill; • expedite the rollout of infrastructure companies; and • the revision and expansion of licensing category. 

            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 broadcasting  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 licence to either a religious organisation  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 must purchase the application form (50,000  nairas), complete and submit it to the DG. The form is accompanied by  a certificate of incorporation, a certified copy of the company’s memo randum and articles of association, an engineering design of systems  including feasibility 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 a recommendation through the Minister of Information to

            the President for the grant of a licence. The licence fee for an initial term  of five years is as follows: 

            • Type Fee, Category A (Any location in the Federal Capital Territory,  Lagos and Rivers States): 
            • Radio, 20 million nairas; 
            • Open TV, 15 million nairas; or 
            • Cable TV 10 million nairas; and 
            • Type Fee, Category B (Any location in all other states): • Radio, 15 million nairas; 
            • Open TV, 11.25 million nairas; 
            • Cable TV, 7.5 million nairas; 
            • Public Stations, 5 million nairas for 5 years or 1 million nairas  per television or radio channel per annum for 5 years 
            • Direct broadcast satellite (single channel), 10 million nairas; • Direct-to-home (multi-channel), 25 million nairas; 
            • Dealer (wholesale), 120 million nairas per annum; 
            • Importer (wholesaler), 120 million nairas per annum; and • Retailer, 30 million nairas per annum. 

            There is no specific timescale for the grant of a licence. 

            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. Under the BC,  foreign content is permissible provided it conveys intrinsic relevance to  the education, information and entertainment of the Nigerian citizenry.  The BC stipulates that a broadcaster shall ensure that the selection of  foreign programmes reflects the development needs of the Nigerian  nation and ensure respect for Nigerian cultural sensibilities. Also, except  for special religious and sports programmes or events of national impor tance, Nigerian broadcasters shall not relay foreign broadcasts live on  terrestrial platforms. In terms of characterising how a broadcasting  programme may qualify as local content, the Addendum to the 6th Edition  of the BC (the Addendum) issued by the NBC in 2020 provides that: 

            • the producer of the programme must be Nigerian, residing  in Nigeria; 
            • the directors of the programme are Nigerian; or 
            • the authors of the programme are Nigerian. 

            Also: 

            • 75 per cent of the leading authors and major supporting cast,  including voice actors or on-screen presenters appearing in the  programme, must be Nigerian; 
            • a minimum of 75 per cent of programme expenses and 75 per  cent of post-production expenses are paid-for-services provided  by Nigerians or Nigerian companies, which may be obtained from  programme commission, licensing, advertising-funded program 

            ming grants, co-funding arrangements, commercial sponsorship  and financing initiatives, all of which must not be subject to ‘foreign  ownership or arbitrary interference’; and 

            • where the production is a collaboration with a foreign entity, the  producer shall ensure that Nigeria production locations, talents,  skills, sets, etc, constitute at least 75 per cent of the entire  production. 

            The Broadcaster is required by the BC to ensure that all productions  targeted at the Nigerian market must meet a minimum of 60 per cent  local content requirement. The local content requirement applies to all  

            categories of programming including but not limited to fiction, series,  serials, films, documentaries, arts and educational programmes, news,  sports events, games, advertising, teleshopping or teletext services. Last,  a broadcaster is required by the local content rules in the Addendum to  source its local content from independent producers where it is not a  direct production of the broadcaster. Failure to comply with the local  content rules is a Class B breach under the BC and will attract sanctions. 

            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. Online  broadcasting is subject to the BC to the extent that it is transmitted by an  online or web broadcaster operating in Nigeria, and it shall additionally  conform to the provisions of the BC on programming standards. 

            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? 

            Beyond the local content obligations mandated by the BC, there are no  other obligations that specify the basic package of programmes, and/or  concerning must-carry. At present. there is no mechanism for financing  local content obligations in Nigeria. However, there is a local content  development fund into which a subscription broadcaster shall make a  mandatory payment, where it fails to comply with its local content obli 

            gations regarding its subscription service. 

            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 another broadcast)  licence issued by the NBC. The BC also requires the local content for  this category of licence to be 60 per cent. The regulations and conditions  governing news, programmes, advertising and sponsorship concerning  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? 

            The first phase of the Digital Switch Over (DSO) was successfully launched  in five states and the Federal Capital Territory in Nigeria between April  2016 and February 2018. According to the timeline released by the NBC  in March 2021, the second phase of the DSO will commence in Lagos  State on 29 April 2021 and be extended to four other states by 12 August  2021. The third and final phase of the DSO will commence in December  2021 and is expected to be concluded by 8 December 2022. 

            The NCC 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 under 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? 

            The BC incorporate some provisions that are consistent with

            media  pluralism. Some of these provisions include that the BC requires  broadcasters to ensure that all sides to any issue of public interest are  equitably presented for fairness and balance and be above inherent  biases, prejudices and subjective mindsets. Also, the BC provides that  panellists in discussion programmes are expected to reflect various  viewpoints, and for political broadcasts, broadcasters are to accord  equal airtime to all political parties or views, with particular regard to  the duration and the particular time within which such programmes can  be broadcasted 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. 

            Beyond the ongoing DSO in Nigeria, the other significant develop ment that happened in the media broadcasting sector in 2020 is the  introduction of the Addendum by the NBC. The Addendum introduced  new provisions, repealed or renumbered certain provisions of the BC.  Stations within the meaning of the NBC Act are statutorily obligated to  comply with the provisions of the BC and by extension the Addendum.  

            Some of the new changes brought by the Addendum include: • the requirement of web or online broadcasters to register  with the NBC; 

            • the characterisation of local content in broadcasting; • prescribing standards for unconventional reportage and user generated content and how certain types of sports rights may  be acquired; 
            • the production of advertising for local goods and services; • the prohibition of anti-competitive practices; and 
            • rules governing wholesale offers. 

            Failure to comply with these provisions would be deemed as a breach of  the BC and will attract sanctions from the NBC. 

            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 commu nications 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 the 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 protection 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  decision has been obtained by fraud. Under the NCA, a person dissatis 

            fied 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. 

            Concerning 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. 

            In the communications sector, the NCC decided to impose mandatory  accounting separation obligation on four mobile network operators  (MNOs), a submarine cable operator and a collocation and infrastruc ture sharing provider respectively to, among other things, identify and  prevent any undue discrimination or practices that substantially lessens  competition such as cross-subsidisation, margin squeezes, etc. This  determination took effect from 15 July 2020 and the licensees subject to  the determination are to commence the full rollout of accounting sepa 

            ration by 1 January 2021. 

            In the broadcast media sector, the Competition Commission on  1 September 2020 commenced an inquiry into the activities of pay-TV  providers to determine if there is any violation of the Competition  Act. The scope of this inquiry includes whether any particular pay-TV  provider has entered into any form of restrictive agreement and/or  has abused (or is abusing) its dominant position in the TV broadcasting  industry, conducts which are both anti-competitive and prohibited under  the Competition Act. To date, this inquiry remains ongoing.

            Coronavirus 

            31 What emergency legislation, relief programmes and other  

            initiatives specific to your practice area has your state  

            implemented to address the pandemic? Have any existing  

            government programmes, laws or regulations been amended  

            to address these concerns? What best practices are advisable  

            for clients? 

            Several regulatory and policy measures were taken in the telecoms and  media sectors in response to the covid-19 pandemic, namely: • Designation of communications and broadcasting services: Under  

            the COVID-19 Regulations issued by the President, communica tions and broadcasting services were designated as essential  services. This meant that individuals working in the communica tions and broadcasting sector could continue to work and travel for  

            work during the period when the lockdown was in force. • Infrastructure sharing and colocation: the NCC approved the  sharing of resources by operators throughout the initial period of  the covid-19 outbreak and subsequent lockdown. These included  fibre-optic cables and other resources in the event of cable cuts  and other unforeseen developments during the initial period of the  coronavirus outbreak. 

            • Thee NCC has temporarily relaxed the do-not-disturb directive  that prohibited the sending of unsolicited communications to  subscribers who have opted out of such communications, to allow  MNOs to disseminate public health information concerning the  covid-19 pandemic originating from the National Centre for Disease  Control (NCDC). 
            • Through the efforts of the NCC, the NCDC and the Federal Ministry  of Health (FMH) partnered with several MNOs to zero rate access  to the official website of NCDC and FMH for subscribers on  their network. 
            • In line with social distancing protocols, the relevant departments  within the NCC developed e-platforms where all licensing requests,  consumer complaints and base transceiver station investiga tion requests could be channelled and also provided designated  email addresses to be used for such requests throughout the  pandemic period. 

            Chukwuyere E Izuogu 

            chukwuyere@sskohn.com 

            Otome Okolo 

            otome@sskohn.com 

            Tamuno Atekebo 

            tamuno@sskohn.com

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