Type Approval Of Telecommunications Equipment Under the Nigerian Communications Act (NCA), 2003

Abstract

In exercise of the powers conferred upon the Nigerian Communication Commissions (NCC), hereinafter referred to as “the Commission”, by virtue of Sections 70 and Section 134 of the Nigerian Communications Act, 2003 (NCA 2003) hereinafter referred to as “the Act”, the Commission promulgated the Type Approval Regulations 2008 (hereinafter referred to as the 2008 Regulations), containing the Type Approval Standards and the Type Approval Guidelines.

Aminat Fatai, 500L, UNILAG
Legal Intern, HARLEM

Introduction

“Type Approval” also known as “Certificate of Conformity” is granted to a product that meets a minimum set of regulatory, technical and safety requirements. Generally, “Type Approval” is required before a product is allowed to be sold in a particular country[1]. Applying this definition to “Type Approval” in Telecommunication parlance, it refers to the minimum set of regulations, technical and safety requirements that communication equipment must meet before they can be sold or used in Federal Republic of Nigeria. Telecommunication Type Approval is, therefore, the term for the process of determining and registering the kind of equipment that can be brought, sold or used in the country without causing interference or long or short-term damage to the network[2]. This paper examines the NCA 2003 Provisions on Type Approval, analysis of the provisions of Type Approval Regulations 2008 vis-à-vis the Type Approval Guidelines and the Type Approval Standards, the provisions of Standard Organizations of Nigeria (SON) on Standards of telecommunication devices and conclusion.

The NCA 2003 Provisions on Type ApprovaI:

The Commission is generally empowered by the Act to establish and enforce Regulations, Standards and Guidelines as it may deem necessary to give full effect to the provisions of the Act and for the Commission’s due administration by virtue of Section 70 of the Act. Specifically, Section 134 of the Act provides that the Commission may make regulations in regard to the provisions of Part III of Chapter VIII of the Act which borders on Technical Standards and may charge such fees as it deems reasonable for carrying out its type-approval functions. These two provisions of the Act, that is, Sections 70 and 134, are the enabling provisions for the promulgation of the Type Approval Regulations 2008, the Type Approval Standards and the Type Approval Guidelines.

The Act further provides that the Commission shall, at the instance of licensed service providers, equipment manufacturers or suppliers, conduct type approval tests and issue certificates in respect of communications equipment and facilities to be used in Nigeria[3]. Licensed service or facilities providers, equipment manufacturers or suppliers shall obtain type approval certificates from the Commission in respect of their communications equipment or facilities prior to installation or sale in Nigeria[4].  Obtaining the Commission’s “Types Approval Certificate” is a fundamental condition that must be satisfied before any telecommunication equipment or facilities can be sold or installed in Nigeria. Failure to obtain a Type approval certificate prior to installation of any telecommunication equipments or facilities is an offence which makes the offender liable on conviction to a fine not more than N100,000 (One Hundred Thousand Naira Only) or to imprisonment not exceeding 1 year or both[5].

Analysis of the Provisions of Type Approval Regulations 2008 vis-à-vis the Type Approval Guidelines and the Type Approval Standards:

The Commission is empowered by the Act to establish and enforce Regulations, Standards and Guidelines for all telecommunications equipment in operation in Nigeria to ensure that they operate seamlessly and safely within the Nigerian telecommunications environment[6]. In exercise of this power which is conferred upon the Commission by virtue of Sections 70 and Section 134 of the Act, the Commission promulgated the Type Approval Regulations 2008, the Type Approval Standards and the Type Approval Guidelines.

The Type Approval Regulations 2008 provides a framework for the approval of communications equipment for connection to communications networks in Nigeria. The 2008 Regulations are accompanied by initial versions of the Type Approval Guidelines and the Type Approval Standards, which provide further definition of applicable processes and equipment standards. These Regulations apply to every “Equipment Holder”, that is, person that provides communications services or supplies communications equipment in Nigeria. Every Equipment Holder that is a Licensee remains subject to all conditions regarding equipment standards and radio spectrum interference set out in its Licence(s), and any other product standards applicable in Nigeria[7]

The 2008 Regulations are intended to promote interoperability between communications networks, ensure that communications equipment used in communications networks are safe and subject to limits on causing or being affected by electromagnetic radiation. It further promotes the development of communications networks, including the supply of communications equipment by qualified suppliers; define processes for the Type Approval of communications equipment and Commencement.  Applicable technical standards, including those promulgated by international bodies, are also identified and recognized under the 2008 Regulations.[8] These international bodies include, The International Electrotechnical Commission (IEC) and its International Special Committee on Radio Interference (CISPR), The European Committee for Electrotechnical Standardization (CENELEC) and The European Telecommunications Standards Institute (ETSI). Note that Nigeria is an associate member of IEC through the Standards Organisation of Nigeria (SON) and could become an associate member of CENELEC and ETSI.[9]

The Commission is charged with the responsibility of maintaining and publishing the up-to-date versions of the Type Approval processes in the Type Approval Guidelines[10], the up-to-date versions of the technical standards and specifications applicable to identified Equipment Types in the Type Approval Standards[11] and up-to-date list of approved Equipment Types[12]. Equipment holders are encouraged to always visit the Commission’s Official website[13] for the certified list of up-to-date version of all these legislation and Equipment Type. The 2008 Regulation makes it compulsory for the Commission to convene a Working Group on Equipment Standards which shall comprise representatives from knowledgeable industry and other stakeholders. This is to ensure that timely recommendations are made to the Commission regarding the list of Equipment Types, applicable Type Approval Standards and processes, and other implementation of these Regulations[14].

The Commission is further charged with the responsibility of reviewing and modifying the Type Approval Guidelines and the Type Approval Standards if and when necessary. In undertaking any such review, the Commission shall consult with relevant stakeholders and may also request and receive advice from the Working Group on Equipment Standards or other advisory groups, but shall not be bound by any such advice[15].

Part IV of the Regulation in general provides for the “Type Approval Obligation” imposed on an “Equipment Holder”. An Equipment Holder can only use or supply communications equipment for a communications network in Nigeria if the Commission has approved the Equipment Type of the equipment, or the Equipment Type falls under Regulation 19 which provides for exemption of equipment that complies with Standards or Regulation 20 which provides for exemption of existing equipment from Type Approvals[16]. The initial version of the Type Approval Standards excludes equipment specifically for: services that are currently outside the scope of the Commission’s authority under the Act (such as broadcasting), services that are thought unlikely to be provided in Nigeria (such as Public Access Mobile Radio and Integrated Services Digital Networks), and services that are obsolescent in Nigeria (such as analogue mobile telephony)[17]. An Equipment Holder does not need to be the applicant for the Type Approval of the Equipment Type[18].

An Equipment Holder may apply to the Commission for Type Approval and in doing so, the Equipment Holder shall assemble an application in accordance with the Section 4 of Type Approval Guidelines, including: the name and contact details of the applicant, the Equipment Type requested for Type Approval with its manufacturing brand name, product name, model number, version number and function, a declaration of Conformity for which there is valid test and other supporting documentation that the Equipment Holder can supply to the Commission on request,  an indication of which, if any, portions of the application are confidential to the Commission, any other information that the applicant considers necessary or appropriate to support the application, and any other information that the Commission may, from time to time, require to assess the application.[19]

The Commission shall refuse or grant an application for Type Approval and in making a decision on an application for Type Approval, it shall accept a Declaration of Conformity supported by equipment tests performed by laboratories included in the list maintained and published by the Commission[20] pursuant to Regulation 7 which mandate the Commission to publish an up-to-date list of test laboratories that are regarded by the Commission as suitable for performing tests required by a Declaration of Conformity. The Commission shall communicate its decision on an application to the applicant, including reasons for any refusal of an application, within one (1) month of receiving the application[21]. If the Commission approves an application for a Type Approval, it shall place the Equipment Type on the list of approved Equipment Types maintained pursuant to Regulation 5[22].

The Commission may revoke a Type Approval or annul an exemption from Type Approval if there is significant evidence that equipment of the Equipment Holders does not comply with the applicable Type Approval Standards, interferes with the operation of a communications network or other communications equipment and/or constitutes a public hazard[23]. The Commission shall publish a notice to inform Equipment Holders about the revocation of a Type Approval or the annulment of an exemption from Type Approval[24]

PART VII of the 2008 Regulations provides generally for the power of the Commission to conduct investigations. The Commission may at any time perform tests on communications equipment or request the supply of test and other supporting documentation assembled by an Equipment Holder under these Regulations and the Type Approval Guidelines[25]. The Commission shall, from time to time, determine and publish the schedule of fees for Type Approvals and shall also supply the schedule of fees for Type Approvals in response to requests for that information[26].

PART IX deals with Contravention and Enforcement. It provides that every Equipment Holder that fails to fulfill an obligation in these Regulations, the Type Approval Guidelines or the Type Approval Standards shall have committed a contravention[27]. The Commission Enforcement may, without prejudice to the application of Sections 131 and 133 of the Act, impose administrative fines, exercise any of the testing, seizure, detention or sealing of premises powers and issue one or more directions pursuant to Section 53 of the Act[28].

Equipment Holders have the obligation to comply with the NCC Type Approval condition by virtue of their license condition: one of such conditions is Condition 29.1 NCC Unified Access Service License (UASL) which provides that the licensee shall ensure that its equipment is Type Approved by the Commission or accredited by the Commission before commencing operations and shall obtain all necessary compliance certificate in accordance with the relevant rules and regulations.

Standard Organizations of Nigeria (SON); Standards of Telecommunication Devices:

The Standard Organization of Nigeria (SON) is the sole statutory body vested with the responsibility of standardizing and regulating the quality of all products in Nigeria. SON was established by the Act No.56 of 1971. The Standard Organization of Nigeria (SON) also regulates the standards of telecommunication devices such as mobile phone and related information technology products. The SON was established as a regulatory framework for standardizing metrology and certification of products in Nigeria and is responsible for ensuring the quality of a range of specified product including information technology and relevant products. S.5 SON Act 2015. The SON Act also provides that a person who intends to import mobile phones into Nigeria is required to obtain a certificate from SON.

The exercise of regulatory mandates of the Commission and SON with respect to the certification of telecommunication devices is uncoordinated and this could create a potential for regulatory conflict between the two regulators. However, there has not been any reported incidence of such conflict as both regulators appear to be cooperating to address the influx of standard telecommunication devices in Nigeria[29].

Conclusion

Equipment Holders have the obligation to comply with the provision of the NCA 2003 on Type Approval, the Type Approval Regulations 2008, the Type Approval Guidelines, the Type Approval standards, the NCC Type Approval conditions for example Condition 29.1 of the Unified Access Service License (UASL), and the Provisions of SON on the Standards of Telecommunication Device. All equipment manufacturers, vendors and operators, including customer devices such as mobile phones and wireless adapters must, therefore, ensure that their equipment conform to the applicable standards as mandated by the Commission before bringing them into Nigeria. Obtaining the NCC Type Approval certificate is a fundamental condition that must be satisfied before any telecommunication equipment or facilities can be sold or installed in Nigeria. The issuance of certificate indicates that a specified telecommunication equipment or facility has fulfilled the NCC standards and can therefore be used in Nigeria. The rationale for Type Approval lays in the belief that Telecommunication equipment if not properly designed, produced, or operated, may put human/public in danger, cause harmful interference to other systems/networks, or reduce their performance, breach established rules and regulations. To avoid/prevent this, it is pertinent that a minimum set of regulatory, technical and safety requirements have been established which telecommunication equipment must meet before they are used or sold in Nigeria.

FOOTNOTES:

[1] Wikipedia

[2] Google Search, “Type Approval in Nigeria” available at https://www.google.com/search?q=type+approval+in+nigeria&ie=utf-8&oe=utf-8

[3] Section 132(1) of NCA 2003

[4] S.132(2) of NCA 2003.

[5] S.133 of NCA 2003

[6] Google Search, “Type Approval in Nigeria” available at https://www.ncc.gov.ng/technical-regulation/standards/type-approval

[7]R.1 Type Approval Regulations 2008

[8] R.2 Type Approval Regulations 2008

[9] Nigerian Communication Commission, “Type Approval” available at https://www.ncc.gov.ng/technical-regulation/standards/type-approval

[10] R.3 Type Approval Regulations 2008

[11] R.4 Type Approval Regulations 2008

[12] R.5 Type Approval Regulations 2008

[13] Ibid @footnote 10.

[14] R.6 Type Approval Regulations 2008

[15] R.8 Type Approval Regulations 2008

[16] R.9(1) Type Approval Regulations 2008

[17] ibid

[18] R.9(2) Type Approval Regulations 2008

[19] R.13 Type Approval Regulations 2008

[20] R.14(1) Type Approval Regulations 2008

[21] R.15(2) Type Approval Regulations 2008

[22] R.16 Type Approval Regulations 2008

[23]  R.17 Type Approval Regulations 2008

[24] R.18 Type Approval Regulations 2008

[25] R.21 of 2008 Regulations.

[26] R.24 of 2008 Regulations

[27] S.27 of the 2008 Regulations.

[28] S.28 of the 2008 Regulations.

[29] See E. Aginam, ‘SON Give Dealers 7 Days Ultimatum to Mop up Fake Phones’, Vanguard, 24 July, 2014. See T Abgoola, ‘SON Confiscates N200 Million Substandard Handsets’, The Nation, 15 July, 2014.