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Presented By Paul Usoro, SAN

Enforcement Processes and Procedures For Non-Compliance with Provisions of the Nigerian Communications Act 2003, Subsidiary Legislation and Licence Conditions. Presented By Paul Usoro, SAN. Presentation Outline. Part I Introduction Part II Enforcement Actions

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Presented By Paul Usoro, SAN

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  1. Enforcement Processes and Procedures For Non-Compliance with Provisions of the Nigerian Communications Act 2003, Subsidiary Legislation and Licence Conditions Presented By Paul Usoro, SAN PUC

  2. Presentation Outline Part I Introduction Part II Enforcement Actions Part III Enforcement Procedures Part IV Judicial Review Part V Conclusion PUC

  3. Introduction • The independence of a regulator is key element to a competitive telecommunications market. Independence can be measured by the ability of the regulator to enforce provisions of relevant laws, regulations and its decisions. • Enforcement is the process of ensuring compliance with the laws, rules/regulations, license conditions etc. Effective enforcement entails the power to investigate the actions and records of service providers and authority to impose sanctions and penalties in the event of infringement. • Enforcement systems usually take account of a country’s judicial system. PUC

  4. Introduction Contd. • The regulatory framework for the Nigerian telecommunications industry - Nigerian Communications Act 2003 (‘NCA’), Subsidiary Regulations, Licence Conditions. • The Nigerian Communications Act 2003 conferred several functions on the Nigerian Communications Commission (‘NCC’) (Sec. 4(1) ) – • Protection and promotion of consumers’ interests • Promotion of competition • Grant and renewal of communications licences • Development and monitoring of performance standards/indices and service quality • Dispute Resolution • Making and enforcement of Regulations PUC

  5. Introduction Contd. • To effectively carry out its functions, NCC is vested with powers to - • Make decisions/rulings • Make determinations • Make Regulations • Issue Directions • Monitor and enforce compliance by all persons (Regulation 4 , Enforcement Regulations) • Regulators must have ‘teeth’ to enforce its decisions and the provisions of relevant telecommunications laws and regulations. They must be capable of issuing directions and ordering operators to perform or desist from performing an action. • This is necessary for the maintenance of order and stability in the sector; growth and development of the sector; deterring wrongdoing; protecting consumers etc. PUC

  6. Introduction Contd. • NCC is empowered to make regulations and guidelines pursuant to Sec 4(1)(i) and Sec 70 of the NCA – Enforcement Regulations 2004 (‘ER’) • The Regulations would be exercised over persons subject to the Act to ensure compliance with the NCA, Regulations, Licence obligations etc. PUC

  7. Enforcement Actions • A regulator must possess a variety of sanctioning tools to enforce compliance with or sanction the infringement of any of the provisions of the Act, Regulations and License conditions. • Sanctions range from administrative fines, license suspension or revocation and criminal or civil prosecution of contravening persons before the courts. NCC is empowered to issue directions in writing to any person regarding the compliance or non-compliance of the NCA, subsidiary legislations, license conditions etc. (Sec 53(1) NCA) • The NCA confers inquiry (Sec 57), investigatory (Secs. 61, 141) and robust information-gathering powers (Sec 64) on the NCC. In the Commission’s exercise of its powers of entry and investigation, it can: • demand the test operation of any equipment or facility • Seal off premises, search and seize and detain property (Sec 6, ER) PUC

  8. Enforcement Actions Contd. • NCC can invoke non-financial penalties – License suspension and revocation. Traditionally, these are resorted to as last ditch efforts at enforcement. Sections 45-47 NCA make specific provisions on the processes and procedures for license suspension or revocation. • Opportunity must be given to the non-compliant party to rectify (60 days) • Notice of intention to revoke must be also given and the party will be given opportunity to react thereto. (14 days) NCC must take account of submission. • In the alternative to the extreme Licence revocation penalty, NCC can at its discretion - • Impose fines as stipulated in the Regulations for contraventions which ordinarily could result in revocation; or • Require that Licensee make such changes in its management as the Commission may consider necessary and within such time as Commission may specify. (Sec 17(2) ER) PUC

  9. Enforcement Actions Contd. • The ER contains a list of administrative fines for non-compliance (Schedule 2) e.g. Failure to meet minimum standard of service specified by NCC pursuant to Sec 104(a) NCA attracts a fine of N500,000.00 monthly. Fines are payable within 14 days of service of notification. • Failure to comply with NCC direction is subject to payment of fine “in such amount as the Commission may at its discretion impose”. (Sec. 55) • GLO contravenedthe provisions of a Direction issued to it by NCC in July 2007. NCC imposed a fine of N5,000,000.00 and upon expiration of 14 days and in the event of non-payment, N500,000.00 per day for as long as the penalty remains unpaid and the contravention subsists. GLO did not respond to this Notice and neither did it comply with the provisions of the Notice. NCC issued a Direction to the effect that failure to comply would amount to a N5,000,000.00 fine and N500,000.00 per day for as long the contravening act subsists. PUC

  10. Enforcement Actions Contd. • The NCC may in the exercise of its enforcement powers institute civil proceedings in Court against any persons for remedies that include injunctive reliefs, recovery of administrative fees, specific performance or pecuniary awards or damages. (Sec 5 ER) • NCA imposes criminal sanctions against non-compliantparties for instances - • Where person provides communication services without a license or an exempt. (Sec. 31) • Illegal spectrum use. (Sec .122) • NCC may, pursuant to Regulation 4(d) ER “enlist and rely on the assistance of law enforcement agencies and other relevant departments, ministries and agencies of the Federal Government.” PUC

  11. Enforcement Actions Contd. • NCC can invoke non-financial penalties – License suspension and revocation. Traditionally, these are resorted to as last ditch efforts at enforcement. • In the alternative to the extreme Licence revocation penalty, NCC can at its discretion - • Impose fines as stipulated in the Regulations for contraventions which ordinarily could result in revocation; or • Require that Licensee make such changes in its management as the Commission may consider necessary and within such time as Commission may specify. (Reg.17(2) ER) • NCC is committed to publishing the details of its monitoring and enforcement activities (quarterly) on its website. (Reg. 3(4),ER) PUC

  12. Enforcement Procedures • Enforcement procedures generally provides for a certain degree of due process before sanctions are issued. International best practices dictate that enforcement procedures must be fair, transparent, prompt and non-discriminatory – adequate investigation, proper notice and opportunity for defence. Other guiding principles include proportionality of sanctions and the need to promote fair competition. (Reg. 4, ER) • Enforcement processes may be initiated by: • NCC - Section 141 NCA also confers broad powers of investigation, entry into premises by themselves or via agents. Further amplified by Reg. 3(1) ER. • Written Enforcement Report by a person (Form A1 in Schedule 1) - NCC has discretion to filter out unmeritorious and frivolous complaints. The complaint Form makes no room for anonymity; it requires that documentary support be attached thereto; contains attestation clause. PUC

  13. Enforcement Procedures Contd. • The powers of search and seizure are not absolute and are only exercisable with a warrant obtained by a Magistrate or Judge in certain circumstances - • Stopping illegal, unlawful and unauthorized operations • Facilitating prosecution of offenders in court • Preserving national interest • Before issuing a direction, the NCA mandates the NCC to issue a notice in writing to a contravening person, specifying the nature of required compliance and giving the person an opportunity to be heard on the reasons for his ‘conduct’ or activity within a reasonable time period as specified in the notice. (Sec.53(2)) • In June 2007, NCC issued a Notice of Intention to issue a Direction mandating GLO to comply with the agreed service quality parameters within 7 days of the receipt of the Notice. GLO was further obligated to report its achievements on a weekly basis and suspend all promotional activities until it achieved an acceptable PUC

  14. Enforcement Procedures Contd. level of service quality and will be required to compensate subscribers for as long as the poor service quality subsists. Glo failed to respond to the Notice and thereby lost its opportunity to be heard. A direction was issued to that effect. Likewise MTN and Celtel. • Sections 45 - 47 NCA make specific provisions on the processes and procedures for license suspension or revocation. • Opportunity must be given to the non-complaint party to rectify default.(60 days) • Notice of intention to revoke must be also given and the party will be given opportunity to react thereto. (14 days) NCC must take account of submission. • NCC cannot make an adverse finding as a result of investigation unless affected party is given an opportunity to be heard. (Sec. 63(4)) PUC

  15. Judicial Review • Effective regulation requires the ability to appeal the regulator’s decisions, preferably to the courts. This provides a check on regulatory discretion and overregulation without weakening the independence of the regulator by exposing it to political pressure. • The NCA provides for pre-action procedures by an aggrieved person before proceeding to Court in regard to any NCC decision. (Secs 86-88) • Decision is defined in the Act to mean “any action, order, report, direction”. This covers non-compliance directions. This has been the subject of judicial interpretation by Federal High Court, the matter is currently on appeal. • Exclusive jurisdiction is vested in the Federal High Court. PUC

  16. Conclusion • To adhere to the administrative law of separation of judicial, rule making and executive functions, investigatory powers should not be exercised by the unit responsible for imposing sanctions. • Enforcement procedures and processes of the NCC meet with international best practices. PUC

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