The enactment of the Nigerian Communications Act 2003 (hereinafter referred to as NCA 2003), which demonopolised the telecommunication sector by allowing new entrants, birthed the principles governing interconnectivity. There arose the need to ensure that interconnecting parties were regulated in their agreement to connect their networks. The principles governing interconnectivity are credited to NCA 2003 as they were excluded under the Nigerian Communications Act 1992 which stipulated half-baked provisions on interconnectivity.
What Is Interconnection?
It is worth mentioning that interconnectivity can also be referred to as interconnection, and the two terms shall be used interchangeably in this article. For the sake of clarity, section 157 of the NCA 2003 defines interconnection as “the physical and logical linking and connection of communications systems used or operated by the same or different licensees in order to convey messages to and from the respective systems for the provisions of services”. The World Trade Organisation defines interconnection as “linking with suppliers providing public telecommunications transport networks or services in order to allow the user of one supplier to communicate with the users of another supplier and to have access services provided by another supplier, where specific commitments are undertaken”.
The NCA 2003 repealed the Nigerian Communications Act 1992 in its explanatory memorandum. Consequently, the NCA 2003 is the principal legislation regulating the Nigerian telecommunication sector. The NCA 2003 laid down provisions on interconnection, and they are provided in sections 96-100.
Section 96 of the NCA 2003 mandates a network provider to interconnect its communications system upon a request for interconnection by another licensee. It is the duty of the requested party, also known as the incumbent or dominant party, to generate the Interconnection or Interconnect Agreement to be signed by the interconnecting parties.
An interconnection agreement is a legally binding agreement between interconnecting parties which details the duties and obligations of the parties with regard to interconnection. In drafting this Agreement, section 97 of NCA 2003 stipulates that the requested party is to comply with the provisions of the NCA 2003 and any other relevant regulations and guidelines as may be published from time to time. With specific attention to section 97(2) of NCA 2003, the interconnecting parties are to primarily agree on the terms and conditions of the interconnect agreement, and the Nigerian Communication Commission (hereinafter referred to as Commission) may intervene suo motu or at the instance of either or both of the interconnecting parties:
-where the agreement or any provision thereof is deemed inconsistent with the provisions of the NCA 2003 or its subsidiary legislation;
-where there is failure of consensus or delay in reaching consensus between the interconnecting parties on specific issues in the agreement; and
-where the Commission considers the intervention at its instance, without invitation by any of the interconnecting parties, as being in the interest of the public.
Section 97 of the NCA, 2003 provides for the registration of interconnection agreements, by either or both of the interconnecting parties, within 30 days from the date of execution. It furthers obligates the interconnecting parties to furnish the Commission with any additional information that may be required by the latter in respect of such interconnect agreement.
A combined reading of both Section 97(1)(a) and section 98(3) of the NCA, 2003 brings to the fore the fact that interconnection agreements are to comply with the provisions of the NCA 2003 as well as the Telecommunications Networks Interconnection Regulations, 2007, and where they do not comply, the Commission may require the interconnecting parties to review the Agreement. It is worthy of note that the provision of section 98(3) of the NCA 2003 appears to be wider than section 97(1)(a) in respect of what the agreements are required to comply with. This is because it requires, in addition, that the interconnect agreement be consistent with the integrity of the public network.
Section 99 of the NCA, 2003 empowers the Commission to make interconnection regulations which shall take into consideration, but shall not be limited to, the model terms and conditions for interconnection agreements between service providers. This section gives legal validity and offers the legal basis for the enactment of Telecommunications Networks Interconnection Regulations, 2007. Section 99 also stipulates matters to be included in an interconnection Agreement. However, section 99(2) by the Clause “include but are not limited to” asserts that the matters listed in its paragraph (a)-(e) do not amount to the totality of matters expected to be in an interconnect Agreement.
After interconnection has been established, a party thereto can disconnect but must not disconnect or discontinue interconnection without the approval of the Commission, notwithstanding the terms and conditions of the interconnection Agreement. In essence, a party can only exercise his right to disconnect after an approval to disconnect has been sought and granted by the Commission. The Commission’s approval is therefore a condition precedent to an interconnected party’s right to disconnect or discontinue interconnection. This is the tenor of Section 100 of NCA 2003.
Similar to interconnectivity is the duty of a network provider to provide access to their network facilities or network services listed in the access list to any other licensed provider within the categories provided in Section 101(1)(a)-(d), where the latter makes a written request for such access to the earlier on reasonable terms and conditions. Section 157 of NCA 2003 defines access as “the making available communications facilities and communications services of one licensee to another for the purpose of providing services, and includes the connection of equipment by wire or wireless means, access to physical infrastructure including but not limited to buildings, ducts and masts, access to mobile networks, in particular for roaming, and access to number translation or systems offering equivalent functionality”.
The NCA 2003 seeks to eliminate anti-competitive practices by mandating the access provided by one provider to be at least the same or more favourable technical standard and quality as that provided on the provider’s network services or facilities. Section 102 of the NCA, 2003, provides for the access list and mandates the Commission to maintain a register of all the network facilities and all network services included in the access list. It appears that interconnectivity and access are sister terms which aim to promote interoperability, ensure fair competition and eliminate near-monopoly. In fact, Section 103 of NCA 2003 provides that Sections 97, 98, 99 and 100, and the powers of the Commission with respect to interconnectivity shall apply to access mutantis mutandis. Consequently, the principles governing interconnectivity to be discussed below shall also be read as the principles governing access.
Having examined generally the provisions on interconnection in the NCA 2003, it is important to examine specifically the provisions governing interconnection. Section 97(1)(b) of the NCA 2003 provides that all interconnection Agreements between the licensees shall comply with “the principles of neutrality, transparency, non-discrimination, fair competition, universal coverage, access to information, equality of access and equal terms and conditions”. This is in pari materia with the provision of Section 3(3)(b) of the Telecommunications Networks Interconnection Regulations, 2007 (hereinafter referred to as ‘2007 Regulations’). Section 11 of the 2007 Regulations also provides that “a dominant telecommunications operator shall, except where the Commission has determined interconnection rates, set charges for interconnection on objective criteria and observe the principles of transparency and cost orientation”. Even the National Policy on Telecommunications, 2000 highlights the principle of fair competition in its Chapter Five and the principle of universal access in its Chapter Nine. These principles will be examined accordingly:
The Principle of Transparency and Cost Orientation: This is that interconnect charges or rates should not be arbitrarily high. Interconnect charges or rates are prices paid by each telecommunication companies for calls terminating on their network. A requesting party, as provided in section 6(1)(b) of the 2007 Regulation, should not be required to pay for network facilities it does not require for the services it is purchasing.
To curtail the incumbent telecommunication company from including high charges and ensuring transparency, there is the Model Interconnection Offer of the Commission which provides the minimum terms and standards expected in an interconnect Agreement. In fact, where an interconnect Agreement is inconsistent with the Act or any subsidiary legislation by reason of unfair interconnection rate, the Commission may intervene and make binding rulings at the instance of either or both parties, as provided in Section 97(2)(a) of the NCA 2003. Section 6(1)(a) of the 2007 Regulations provides that the charges set by the dominant operator providing the connection shall be set on objective criteria- the principles of transparency and cost orientation.
The Principle of Non-discrimination: A requested party is not to discriminate between networks by refusing to connect with a network in circumstances other than those specified in the section 5 of the Telecommunications Networks Interconnection Regulations 2007. To ensure non-discrimination, a requested party is obligated to connect with a requesting party except in circumstances that come under section 5 of the Telecommunications Networks Interconnection Regulations 2007. The NCA 2003 makes use of “shall” which depicts that it is an obligation and not an option of choice.
Cross-subsidisation also evidences discrimination as it places a service provider in an unfavourable position when compared with other service providers. Cross-subsidisation, in relation to telecommunication, is the practise where a service provider is highly charged to cover for the facilities and services being rendered to another service provider, who is required to pay a lesser charge.
In addition, section 10(1)(b) of the 2007 Regulations provides that the telecommunication operator who is the dominant party shall adhere to the principle of non- discrimination with regard to interconnection.
The Principle of Neutrality: This is an offshoot of the principle of non- discrimination. It requires that service providers should not be selective about the traffic they transmit. In other words, “internet service providers should treat all internet traffic the same and not treat content, users, platforms, applications or equipment that access the internet differently”. By prohibiting telcos from blocking, discriminating or demanding extra charges from consumers to access certain traffic data, it aims at not placing consumers at the mercy of the telecommunication companies. To further augment the principle of neutrality provided for under the NCA 2003 and the 2007 Regulation, there is the Establishment of Internet Industry Code of Practise (Draft Code) June 2018.
The Principle of Fair Competition: Service providers are not allowed to engage in anti-competitive practices that prejudices other service providers. This is to uphold the market-based competition in the Nigerian telecommunications industry and to ensure that telecommunication companies compete on an equal footing.
The Principle of Universal Coverage: This is to ensure that everyone, especially low income earner and those residing in rural areas, has access to telecommunications services at reasonable prices. The NCA 2003, in its section 1(c), has one of its objectives as the provision of “modern, universal, efficient, reliable, affordable and easily accessible communications services and the widest range thereof throughout Nigeria”. By section 84 of the Universal Access and Universal Service Regulations 2007, universal coverage means that “100% of a designated population can privately subscribe to a particular service on an individual, household or institutional basis”
The Principle of Access to Information: The requesting party, as provided in section 7(3) of the 2007 Regulation, is to provide sufficient details to the requested party in relation to a point of interconnect to enable the requested party facilitate interconnection between the networks. On the part of the requesting party, Section 10(c) of the 2007 Regulations obligates a requested party to make available, upon request, all information and specification reasonably necessary to facilitate the conclusion of an interconnection agreement. In essence, this obligation conferred on the requested party in section 10(c) is only activated upon the request of such information by the requesting party. This principle ensures that interconnecting parties have available relevant documents or information, and contract with good faith.
The principles, as already examined above, are in furtherance of NCA 2003 objective towards ensuring competition and eliminating near-monopoly powers in the telecommunication sector. It is therefore important for service providers to adhere with the principles specified in the NCA 2003. Non-compliance with these principles in an interconnect agreement is inconsistent with the provisions of the Act and its subsidiary legislation, and is a ground upon which the Commission may intervene to make binding decisions either at the instance of either or both of the parties or suo motu where such intervention is deemed to be in the interest of the public in accordance with Section 92(2)(a)&(c) of NCA 2003, which provides that ‘the terms and conditions of interconnection agreements shall primarily be agreed upon between the parties thereto and the Commission may intervene and make binding rulings at its instance or at the instance of either or both parties to the agreement if the Commission determines that the agreement or any provision thereof is inconsistent with the provisions of this Act or its subsidiary legislation or if the Commission considers it in the public interest for it to so intervene at its own instance and without any invitation from either or both parties to the agreement.
 Rotimi Akapo, “The rules of fair play – “Net Neutrality in the Nigerian Telecommunications Industry”. Advocaat Law Practise, March 2018. https://www.advocaat-law.com/assets/resources/f28a937d499f2d8390d2cc8136c67517.pdf accessed 28 October 2019.
Aminat Tijani is a 500L First Class Grade Student of the University of Ibadan.