Nigerian Communications Commission Act 2003

Nigerian Communications Commission Act 2003

Laws of the Federation of Nigeria

8^th day of July 2003

Arrangement of Sections

Chapter I

Objectives, Application and Scope

1 Objectives of the Act

2 Application and Scope

Chapter II Establishment, Functions and Membership of Commission

Part 1 Establishment and Functions of Commission

3 Establishment of the Commission

4 Functions of the Commission

Part 2 Membership of the Commission

5 Establishment of Governing Board

6 Commissioner’s remunerations, allowances, etc.

7 Qualification etc. of the Commission’s Board

8 Appointment and Tenure of Commissioners

9 Resignation of a Commissioner

10 Removal of a Commissioner

11 Vacancy on the Board

Part 3 Management and Staffing of the Commission

12 Chief Executive

13 Executive Commissioners

14 Commission Secretary

15 Staff of the Commission

16 Conditions of Service

Part 4 Financial Provisions

17 Fund of the Commission

18 Borrowing powers, gifts, etc.

19 Budget and expenditure

20 Financial year and audit of Commission’s accounts

21 Annual reports for National Assembly

22 Exemption from taxation

Chapter III Functions of the Minister and National Frequency Management Council

Part 1 Functions of the Minister

23 Functions of the Minister

24 Formulation of policy

25 Relationship with the Commission

Part 2 National Frequency Management Council

26 Establishment of National Frequency Management Council

27 Membership of NFM Council

28 Functions of NFM Council

29 Meetings and proceedings

30 Funding and staffing of NFM Council

Chapter IV Licences

Part 1 Requirement for and class of licences

31 Requirement for Licences

32 Classes of licences

33 Licensing processes, etc.

Part 2 Licence Conditions

34 Commission’s declaration

35 Affected licensees

36 Register of declarations

37 Expiration, modification or revocation of declarations

38 Assignment of licence and compliance with licence conditions

Part 3 Individual Licences

39 Application for individual licence

40 Additional information

41 Processing of applications

42 Licence Undertakings

43 Renewal of individual licence

44 Surrender of individual licence

45 Suspension or revocation of individual licence

46 Effect of suspension of licence

47 Effect of surrender, revocation, etc.

48 Register of individual licences

Part 4 Class Licence

49 Class licence and conditions

50 Registration of class licensee

51 De-registration of class licensee

52 Register of class licences

Chapter V Powers and Procedures of the Commission

Part 1 Directions

53 Issuance of directions

54 Modification of direction

55 Non-compliance with direction

56 Register of directions

Part 2 Inquiry

57 Inquiry

58 Public inquiry

59 Private inquiry

60 Publication of report

Part 3 Investigation for purposes of Administration, Inquiry, etc.

61 Investigation

62 Complaint

63 Conduct of investigation

Part 4 Information-gathering Powers

64 Information-gathering powers

65 Non-compliance

66 Evidence of compliance

67 Record and publication of information, etc.

Part 5 Register

68 Register

69 Access to Register by public

Part 6 Regulations, Guidelines, etc.

70 Commission’s Regulations, Guidelines, etc.

71 Rule-making process

72 Regulatory review

Part 7 Notification and Resolution of Disputes

73 Commission’s powers to resolve disputes

74 Resolution of disputes by parties

75 Notification of disputes

76 Resolution of disputes by Commission

77 Register of decisions

78 Enforcement of Commission’s decision

Part 8 Registration of Agreements

79 Registration of agreements

80 Register of agreements

Part 9 Undertakings

81 Undertakings

82 Registration of undertakings

83 Rules of undertakings

84 Withdrawal of undertakings

85 Enforcement of undertakings

Part 10 Review of Decisions

86 Reasons for decisions

87 Review of decision by Commission

88 Judicial review of decision

Part 11 Monitoring and Reporting

Section 89 Monitoring and reporting

Chapter VI Economic Regulation

Part 1 General Competition Practices

90 Commission’s exclusive competence on competition laws

91 Anti-competition practices

92 Dominant operator

93 Exemptions

94 Legal action against default

95 Regulation relating to foreign operators

Part 2 Interconnection

96 Obligation to interconnect

97 Interconnection agreements

98 Registration of interconnection agreements

99 Interconnection regulations and agreements

100 Disconnection of interconnection

Part 3 Access

101 Provision of access

102 Access list and register

103 Regulations, discontinuance of access, etc.

Chapter VII Consumer Affairs

Part 1 Consumer Protection and Quality of Service

104 Quality of service

105 Resolution of consumer disputes

106 Consumer Code

Part 2 Required applications services

107 Required applications services

Part 3 Tariff rate regulation

108 Approval of tariffs and charges by Commission

109 Exemptions

110 Tariff rates, rules and regulations

111 Penalty for operating unapproved tariffs, charges, etc.

Part 4 Universal Service Provision

112 Universal service provision

113 Unserved areas, underserved areas, and underserved groups

114 Universal Service Provision Fund

115 USP Board

116 Membership of USP Board

117 USP Board Proceedings

118 USP Secretariat

119 USP Fund Managers

120 USP Regulations

Chapter VIII Technical Regulation

Part 1 Spectrum assignment

121 Management and administration of frequency spectrum

122 Illegal use of spectrum

123 Regulations

124 National frequency plan

125 Frequency Licence

126 Compulsory acquisition of spectrum assignment

127 Forfeiture of spectrum assignment

Part 2 Numbering and Electronic Addressing

128 Administration and planning of numbering, electronic addressing

129 Delegation of responsibility

Part 3 Technical Standards

130 Technical code and specifications

131 Offences

132 Type approval

133 Type approval offences, etc.

134 Regulations

Chapter IX General

Part 1 Installation of Network Facilities, Access to Network Facilities, etc.

135 Required approvals for network installations, etc.

136 Duty of Care

137 Access to network facilities

Part 2 Jurisdiction, Offences, Powers of Entry, etc.

138 Competent Court

139 Offences by corporate persons

140 General penalties

141 Powers of entry and investigation by inspectors

Part 3 Actions against Commission etc.

142 Limitation of suits against Commission, etc.

143 Service of court processes on Commission

144 Restriction on execution against Commission’s property

145 Indemnity of Commission’s officials

Part 4 National Interest Matters

146 General duty of licensees

147 Network interception capability

148 Emergency provisions

s149 Disaster plan

Chapter X Repeal and Transitional Provisions

Part 1 Repeal and Savings

150 Repeal of 1992 No. 75, 1998 No. 30, 1995 No. 21

151 Existing rights, interests, etc. under repealed Acts

152 Outstanding obligations and liabilities under repealed Acts

153 Pending proceedings or causes of actions under repealed Acts

154 Commission’s assets, funds, etc. pursuant to repealed Acts

155 Office holders pursuant to repealed Acts

Part 2 Transitional provisions for Licences, Definitions and Short Title

156 Old licences

157 Interpretation

158 Short title

First Schedule

Supplementary Provisions Relating to the Board of Commissioners

Second Schedule

Conflict of Interest

Nigerian Communications Commission Act 2003

Laws of the Federation of Nigeria

An Act to establish the National Frequency Management Council and the Universal Access Fund and to reform the Nigerian Communications Commission and repeal the Nigerian Communications Commission Act 1992: and for related matters.

8^th day of July 2003

Chapter I

Objectives, Application and Scope

1. The primary object of this Act is to create and provide a regulatory framework for the Nigerian communications industry and all matters related thereto and for that purpose and without detracting from the generality of the foregoing, specifically to

promote the implementation of the national communications or telecommunications policy as may from time to time be modified and amended;

establish a regulatory framework for the Nigerian communications industry and for this purpose to create an effective, impartial and independent regulatory authority;

promote the provision of modern, universal, efficient, reliable, affordable and easily accessible communications services and the widest range thereof throughout Nigeria;

encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends;

ensure fair competition in all sectors of the Nigerian communications industry and also encourage participation of Nigerians in the ownership, control and management of communications companies and organisations;

encourage the development of a communications manufacturing and supply sector within the Nigerian economy and also encourage effective research and development efforts by all communications industry practitioners;

protect the rights and interest of service providers and consumers within Nigeria;

ensure that the needs of the disabled and elderly persons are taken into consideration in the provision of communications services; and

ensure an efficient management including planning, coordination, allocation, assignment, registration, monitoring and use of scarce national resources in the communications sub-sector, including but not limited to frequency spectrum, numbers and electronic addresses, and also promote and safeguard national interests, safety and security in the use of the said scarce national resources.

2. This Act applies to the provision and use of all communications services and networks, in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.

Chapter II

Establishment, functions and

membership of Commission

Part 1

Establishment and

Functions of Commission

3. –(1) There is established a commission to be known as the Nigerian Communications Commission with responsibility for the regulation of the communications sector in Nigeria.

(2) The Commission shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its corporate name, and shall have the power to do the following -

enter into contracts and incur obligations;

acquire, hold, mortgage, purchase and deal howsoever with property, whether movable or immovable, real or personal; and

do all such things as are necessary for or incidental to the carrying out of its functions and duties under this Act.

(3) The Commission shall be structured into departments as the Board may from time to time deem appropriate for the effective discharge of its functions.

4. –(1) The Commission shall have the following functions-

the facilitation of investments in and entry into the Nigerian market for provision and supply of communications services, equipment and facilities;

the protection and promotion of the interests of consumers against unfair practices including but not limited to matters relating to tariffs and charges for and the availability and quality of communications services, equipment and facilities;

ensuring that licensees implement and operate at all times the most efficient and accurate billing system;

the promotion of fair competition in the communications industry and protection of communications services and facilities providers from misuse of market power or anti-competitive and unfair practices by other service or facilities providers or equipment suppliers;

granting and renewing communications licences whether or not the licences themselves provide for renewal in accordance with the provisions of this Act and monitoring and enforcing compliance with licence terms and conditions by licensees;

proposing and effecting amendments to licence conditions in accordance with the objectives and provisions of this Act;

fixing and collecting fees for grant of communications licences and other regulatory services provided by the Commission.;

the development and monitoring of performance standards and indices relating to the quality of telephone and other communications services and facilities supplied to consumers in Nigeria having regard to the best international performance indicators;

making and enforcement of such regulations as may be necessary under this Act to give full force and effect to the provisions of this Act;

management and administration of frequency spectrum for the communications sector and assisting the National Frequency Management (NFM) Council in developing a national frequency plan;

development, management and administration of a national numbering plan and electronic addresses plan and the assignment of numbers and electronic addresses therefrom to licensees;

proposing, adopting, publishing and enforcing technical specifications and standards for the importation and use of communications equipment in Nigeria and for connecting or interconnecting communications equipment and systems;

the formulation and management of Nigeria’s inputs into the setting of international technical standards for communications services and equipment;

carrying out type approval tests on communications equipment and issuing certificates therefor on the basis of technical specifications and standards prescribed from time to time by the Commission;

encouraging and promoting infrastructure sharing amongst licensees and providing regulatory guidelines thereon;

examining and resolving complaints and objections filed by and disputes between licensed operators, subscribers or any other person involved in the communications industry, using such dispute-resolution methods as the Commission may determine from time to time including mediation and arbitration;

preparation and implementation of programmes and plans that promote and ensure the development of the communications industry and the provision of communications services in Nigeria;

designing, managing and implementing Universal Access strategy and programme in accordance with Federal Government’s general policy and objectives thereon;

advising the Minister on the formulation of the general policies for the communications industry and generally on matters relating to the communications industry in the exercise of the Minister’s functions and responsibilities under this Act;

implementation of the Government’s general policies on communications industry and the execution of all such other functions and responsibilities as are given to the Commission under this Act or are incidental or related thereto;

generally advising and assisting communications industry stakeholders and practitioners with a view to the development of the industry and attaining the objectives of this Act and its subsidiary legislation;

representation of Nigeria at proceedings of international organisations and fora on matters relating to regulation of communications and matters ancillary and connected thereto; and

general responsibility for economic and technical regulation of the communications industry.

(2) The Commission shall at all times carry out its functions and duties and exercise its powers hereunder efficiently, effectively and in a non-discriminatory and transparent manner and in a way that is best calculated to ensure that there are provided throughout Nigeria, subject to the regulatory controls specified in this Act, all forms of communications services, facilities and equipment on such terms and subject to such conditions as the Commission may from time to time specify.

Part 2

Establishment of the Governing Board, and its membership

5. –(1) There is established for the Commission a Governing Board (in this Act referred to as "the Board") charged with the administration of the affairs of the Commission.

(2) The Board consists of 9 Commissioners made up of-

(a) a chairman,

(b) a chief executive who shall also be the Executive Vice Chairman

(d) 5 non-executive Commissioners,

who shall be appointed by the President of the Federal Republic of Nigeria.

(3) Notwithstanding any other provision of this Act, the President shall ensure at all times that there is a duly constituted Board of Commissioners and that there are a minimum of 6 serving Commissioners on the Board at any and all times, made up of -

the Chief Executive;

2 Executive Commissioners; and

3 non-executive Commissioners.

(4) The supplementary provisions set out in the First Schedule to this Act shall have effect with respect to the proceedings of the Board and the other matters contained therein.

(5) Subject to subsection (4) of this section, the Board shall have capacity to make standing orders for the regulation of its proceedings and meetings howsoever and acts of the Board shall be deemed to be acts of the Commission.

6. The remunerations and allowances, payable to the Commissioners, including the Chief Executive and Executive Commissioners, shall at the instance of the Board be determined and reviewed from time to time by the National Salaries, Incomes and Wages Commission.

7. –(1) Commissioners shall be persons of recognised standing, qualification and experience in one or more of the following fields -

finance or accounting;

law;

consumer affairs;

telecommunications engineering;

information technology;

engineering generally;

economics; and

public Administration.

(2) A person shall not be appointed or remain in office as a Commissioner if -

(a) he is not a Nigerian citizen;

(b) he is not ordinarily resident in Nigeria;

(d) he is incapacitated by any physical illness;

(e) he has been certified to be of unsound mind;

(f) he is an undischarged bankrupt;

(g) he has been convicted in Nigeria or elsewhere of a criminal offence,

being a misdemeanour or felony; or

(h) he has at any time been removed from an office of trust on account

of misconduct.

(3) The conflict of interest provisions contained in the Second Schedule to this Act shall apply to all Commissioners.

8. –(1) Subject to subsection (2) of this section, all Commissioners to be appointed after the coming into force of this Act shall be appointed by the President

in accordance with section 7 of this Act, from the 6 geo-political zones of Nigeria subject to the confirmation by the Senate.

(2) The Board shall make recommendations to the President on suitably qualified persons for appointment as the Commission’s Chief Executive and Executive Commissioners and the President shall take the Commission’s recommendations into consideration for the appointment.

(3) All Commissioners, except the Chief Executive and the Executive Commissioners, shall hold office on part-time basis.

(4) Subject to sections 11(3) and 11(4) of this Act, each Commissioner shall serve for a term of 5 (five) years from the date of his appointment at the expiration of which the President may renew his term for a further period of 5 years and no more.

(5) Subject to sections 11(3) and 11(4) of this Act, all Commissioners who were appointed prior to and are still serving as at the commencement date of this Act shall be deemed upon the commencement of this Act to be serving their initial term of 5 (five) years, calculated from their respective dates of appointments and shall, subject to subsection (4) of this section, be eligible thereafter for renewal of their respective tenures.

9. A Commissioner may resign his office by giving 3 months written notice thereof addressed to the President through the Minister.

10. –(1) Subject to subsections (2), (3) and (4) of this section, a Commissioner may be suspended or removed from office by the President if he -

is found to have been unqualified for appointment as a Commissioner pursuant to Section 7 of this Act or is in breach of Section 7(2) hereof after his appointment;

has demonstrated inability to effectively perform the duties of his office;

has been absent from 5 (five) consecutive meetings of the Board without the consent of the Chairman except he shows good reason for such absence;

is guilty of a serious misconduct in relation to his duties as a Commissioner;

in the case of a person possessed of professional qualifications, he is disqualified or suspended from practising his profession in any part of the world by an order of a competent authority; or

is in a breach of the conflict of Interest Rules set out the Second in Schedule to this Act.

(2) Prior to the suspension or removal of a Commissioner under subsection (1) of this section, the President shall inform the Commissioner by written notice, as soon as practicable, of his intention to suspend or remove the Commissioner from office and the reasons therefor.

(3) The affected Commissioner under subsection (1) of this section shall be given a reasonable opportunity to make written submissions to the President within a time period specified in the notice and such time period shall not be less than 14 days from the date of the notice.

(4) The affected Commissioner may, within the time period specified in the notice, submit a written submission and the President shall consider the submission in making his final decision on the Commissioner’s suspension or removal from office.

11. –(1) There is a vacancy in the Board if a Commissioner -

dies;

is removed from office in accordance with Sections 7 or 10 of this Act; or

resigns from office; or

upon the completion of his tenure of office.

(2) A vacancy in the Board shall be filled by the appointment of another person to the vacant office by the President in accordance with section 8 of this Act, as soon as is reasonably practicable after the occurrence of such vacancy.

(3) Subject to subsection (4) of this section, in the instance of a vacancy on the Board that are created consequent upon death, removal or resignation of a Commissioner, any person so appointed shall hold office for the unexpired period of the term of office of his predecessor.

(4) The provisions of subsection (3) of this Section shall not apply to the filling of vacancies in respect of Executive Commissioners howsoever and whenever created.

Part 3

Management and

Staffing of the Commission

12. –(1) The Chief Executive shall be primarily responsible for the execution of the policies and decisions of the Board and for the day-to-day management and supervision of the activities of the Commission.

(2) The Chief Executive shall be a person possessing sound knowledge of and ability in the organisation and management of communications matters and subject to sections 8(3) and 8(4) of this Act, he shall hold office for a term of 5 years and may be renewed for another term and no more.

13 The Executive Commissioners shall be persons possessing sound knowledge of and ability in the organisation and management of communications regulatory matters and subject to section 8(4) of this Act, they shall hold office for a term of 5 years and may be renewed for another term and no more.

14. –(1) There shall be appointed by the Board, for the Commission a secretary who shall not be a Commissioner but shall possess relevant and adequate professional qualifications, with not less than 10 years post-qualification experience.

(2) The Secretary shall keep the corporate records of the Commission and perform such other duties and functions as the Chairman or the Chief Executive may from time to time direct.

15. –(1) The Commission shall have powers to appoint such number of other persons as it deems necessary as staff of the Commission.

(2) The employment of the Commission’s staff, including the Secretary, shall be subject to such terms and conditions as may from time to time be stipulated by the Board and contained in the respective staff’s employment contracts.

16. –(1) The Commission shall develop and implement appropriate staff conditions of service for its staff with particular regard to the issues of remuneration, pensions scheme and other fringe service benefits, sufficient for the Commission to attract and retain quality and high calibre manpower.

(2) The Board shall consider and, in consultation with the National Salaries, Incomes and Wages Commission determine and review from time to time, the remunerations and allowances, payable to the Commission’s staff.

(3) The conflict of interest provisions contained in the Second Schedule to this Act shall apply to all employees of the Commission.

(4) Notwithstanding the provisions of the Pensions Act, service in the Commission shall be approved service for the purposes of that Act and accordingly, officers and other persons employed in the Commission shall in respect of their services in the Commission, be entitled to pensions, gratuities and other retirement benefits as are enjoyed by persons holding equivalent grades in the Civil Service of the Federation, so however that nothing in this Act shall prevent the appointment of a person to any office on terms which preclude the grant of pension and gratuity in respect of that office.

(5) For the purposes of the application of the Pensions Act, any power exercisable thereunder by a Minister or other Authority of the Federal Government, other than the power to make regulations under section 23 thereof, is hereby vested in and shall be exercisable by the Commission and not by any other person or authority.

Part IV

Financial Provisions

17. –(1) The Commission shall establish and maintain a fund from which all expenditures incurred by the Commission shall be defrayed.

(2) The Fund shall comprise funds derived from but not limited to the following sources -

such monies as may be appropriated to the Commission from time to time by the National Assembly;

subject to subsection (3) of this section, fees charged by the Commission under this Act or its subsidiary legislation or under any licence issued pursuant to this Act;

gifts, loans, grants, aids, etc; and

all other assets that may from time to time accrue to the Commission.

(3) The Commission shall pay all monies accruing from the sale of spectrum under Part 1 of Chapter VIII into the Consolidated Revenue Fund.

18. –(1) The Commission may, with the consent of, or in accordance with the general authority given by the Minister of Finance, borrow such sums of money as the Commission may require in the exercise of its functions under this Act or its subsidiary legislation.

(2) The Commission may accept gifts or grants of money or aids or other property from national, bilateral and multi-lateral organisations and upon such terms and conditions, if any, as may be agreed upon between the donor and the Commission provided that such gifts are not inconsistent with the objectives and functions of the Commission under this Act.

19. –(1) The Commission shall not later than 30^th September in each financial year prepare and present to the National Assembly through the President for approval, a statement of estimated income and expenditure for the following financial year.

(2) Notwithstanding the provisions of subsection (1), the Commission may also, in any financial year, submit supplementary or adjusted statements of estimated income and expenditure to the National Assembly through the President for approval.

(3) Subject to subsections (1) and (2) of this section, the Commission shall apply the proceeds of the Commission’s Fund –

to meet the administrative and operating costs of the Commission;

for the payment of salaries, wages, fees and other allowances, retiring benefits such as pensions and gratuities and, any other remunerations payable to the Commissioners and staff of the Commission;

for the purchase or acquisition of property or other equipment and other capital expenditure and for maintenance of any property acquired or vested in the Commission;

for purposes of investment; and

for or in connection with all or any of the functions of the Commission under this Act or its subsidiary legislation.

20. –(1) The financial year of the Commission shall start on 1^st January of each year and end on 31^st December of the same year.

(2) The Commission shall keep proper records of its accounts in respect of each year and shall cause its accounts to be audited within 6 months from the end of each financial year by auditors whose appointment shall be approved by the Board and shall be subject to reappointment on annual basis provided that such auditors are on the list of auditors approved from time to time by the
Auditor - General for the Federation.

21. –(1) The Commission shall prepare and submit to the National Assembly annually, through the President, not later than 6 months after the end of its financial year, a report on the activities of the Commission for the preceding financial year and shall include therein the Commission’s audited accounts for the year under review together with the auditor’s report thereon.

(2) The Commission’s report under subsection (1) of this section shall have as an attachment thereto the report specified in section 89 of this Act.

22. The provisions of any enactment relating to the taxation of companies or trust funds shall not apply to the Commission.

Chapter III

Functions of the Minister and

National Frequency Management Council

Part 1

Functions of the Minister

23. The Minister shall have the following responsibilities and functions pursuant to this Act -

the formulation, determination and monitoring, of the general policy for the communications sector in Nigeria with a view to ensuring, amongst others, 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 Commission, at proceedings of international organisations and fora on matters relating to communications.

24. –(1) Prior to the formulation or review of the general policy for the Nigerian communications sector, the Minister shall cause the Commission on his behalf to first carry out a public consultative process on the proposed policy formulation or modification.

(2) In formulating and determining the policy or amendments thereto, the Minister and the Council shall take into consideration the findings of the consultative process under subsection (1) of this section.

25. –(1) Subject to subsection (2) of this section, the Minister shall, in writing, from time to time notify the Commission of and express his views on the general policy direction of the Federal Government in respect of the communications sector.

(2) In the execution of his functions and relationship with the Commission, the Minister shall at all times ensure that the independence of the Commission, in regard to the discharge of its functions and operations under this Act, is protected and not compromised in any manner whatsoever.

Part 2

National Frequency Management Council

26. There is established in the Ministry a National Frequency Management Council (NFM) (in this Act referred to as "the Council") with membership and functions as set out in this Act.

27. –(1) The membership of the Council shall be made up of –

a chairman who shall be the Minister;

one representative of the Federal Ministry for the time being charged with the responsibility for communications;

one representative of the Federal Ministry of Aviation;

one representative of the Federal Ministry of Transport;

one representative of the Federal Ministry of Science and Technology;

two representatives of the Commission;

one representative of the National Broadcasting Commission; and

one representative from the security agencies of the Federal Republic of Nigeria.

(2) The organisations that are represented on the Council may at any time, at their discretion or at the instance of the NFM Council, withdraw members who are representing their organisations and simultaneously replace them with some other persons.

28. The Council shall have and exercise the following functions -

assist and advise the Minister on the representation of the Federal Republic of Nigeria and carrying out ancillary functions at international and regional spectrum allocation bodies including but not limited to International Telecommunications Union (ITU);

assist and advise the Minister on the preparation and negotiation of bilateral and multi-lateral spectrum allocation treaties with other sovereign administrations;

assist and advise the Minister on the preparation, negotiation and adoption of spectrum coordination agreements that are applicable to cross-border spectrum uses involving the Federal Republic of Nigeria and other countries;

in consultation and conjunction with the Commission, prepare, update and publish on a regular basis a national frequency allocation table and establish a data bank that would assist and facilitate the management of the national spectrum;

carry out bulk trans-sectoral allocation of spectrum to statutory bodies that are authorised by enabling laws to allocate spectrum to end-users; and

receive and collate returns and statistics on spectrum allocation to end-users from the statutory bodies specified in paragraph (e) of this section and coordinate their respective activities.

29. –(1) The Minister shall ensure that the Council meets at least four times in every calendar year to transact its businesses.

(2) The Council may make standing orders for the regulation of its meetings and proceedings and may establish standing or ad-hoc committees to assist it in exercising its functions under this Act.

(3) Membership of the Council Committees may be constituted beyond the members of the Council to include persons and representatives of organisations that are capable in the Council’s estimation of assisting the Council in the discharge of its functions provided that such Council Committees shall at all times be headed by the Council Members.

(4) Decisions of the Council Committees shall not be effective binding and valid until they are adopted and agreed upon by the NFM Council.

30. –(1) The Council shall be funded from -

subventions and budgetary allocations from the Federal Government; and

grants-in-aid from national, bilateral and multi-lateral agencies.

(2) The Council Secretariat shall be serviced by officials of the Ministry.

Chapter IV

Licences

Part I

Requirement for and class of licences, and offence.

31. –(1) No person shall operate a communications system or facility nor provide a communications service in Nigeria unless authorised to do so under a communications licence or exempted under regulations made by the Commission under this Act.

(2) Any person who acts in breach of sub-section (1) of this section commits an offence and is liable on conviction to -

a fine not less than the initial fee for the relevant licence;

a fine not exceeding 10 (ten) times the initial fee for the relevant licence;

imprisonment for a term not exceeding 1 (one) year; or

both such fine and imprisonment;

Provided that upon conviction, the person shall also forfeit to the Commission the property, facilities, installations and equipment used by him for the provision and operation of the unlicensed service.

32. –(1) The Commission shall issue communications licences for the operation and provision of communications services or facilities by way of class or individual licences on such terms and conditions as the Commission may from time to time determine taking into consideration the objectives of this Act and the provisions of section 33(3) of this Act.

(2) Subject to subsection (3) of this section, the Commission shall from time to time determine and publish to the general public the communications services that

qualify for class or individual licences or that are exempted from licensing.

(3) The Commission shall, in determining the services that qualify for class or individual licences, at all times ensure that previous holders of licences for such services as at the date of such determination do not suffer any disadvantage except as permitted under this Act and its subsidiary legislation.

33. –(1) The Commission shall from time to time determine and cause to be published a regulation on its licensing processes specifying, amongst others, the persons or classes of persons who are eligible generally to apply for licences.

(2) Subject to subsection (3) of this section, the Commission shall from time to time determine and publish its licensing procedures which may include but shall not be limited to auction, selection processes, public tender invitation or competitive bidding processes.

(3) The Commission shall at all times be guided in the formulation of licensing procedures, issuance of communications licences and preparation of licence conditions and terms, by the principles of and consideration for –

transparency, fairness and non-discrimination;

efficient use and management of radio frequencies;

available numbers under the National Numbering Plan;

the need to promote fair competition and investment in the communications industry;

the need to provide modern, qualitative, affordable and readily available communications services in all parts of Nigeria; and

such other principles and considerations as the Commission may from time to time consider necessary and in the national interest.

Part II

Licence Conditions

34. –(1) The Commission may, from time to time, make written declarations that an individual licence, or a classification of individual licences, or a class licence is subject to such terms and conditions, or enjoys such benefits, as the Commission deems fit.

(2) Any declaration on the conditions of licence shall be consistent with the objects and provisions of this Act which are relevant to the particular undertaking, matter or activity.

35. –(1) The Commission shall, before making a declaration under section 34 of this Act, give the affected licensees written notice of its intention to do so together with a draft copy of the declaration, and the licensees may make written submissions to the Commission thereon within the time period specified by the Commission but not less than 30 (thirty) days from the date of the written notice.

(2) The Commission shall, in deciding on the next course of action, take into consideration any submission made by the affected licensees and the principles specified in section 33(3) of this Act.

36. The Commission shall register every declaration as soon as practicable and shall further maintain a register of all such declarations in accordance with Part V of Chapter V.

37. –(1) The Commission may at any time amend, modify, vary or revoke any licence condition or a declaration regarding a licence.

(2) The procedures set out in sections 34, 35 and 36 of this Act shall apply mutatis mutandis in respect of any amendment, modification, variation or revocation of a licence condition or declaration.

38. –(1) The grant of a licence shall be personal to the licensee and the licence shall not be operated by, assigned, sub-licensed or transferred to any other party unless the prior written approval of the Commission has been granted.

(2) A licensee shall at all times comply with the terms and conditions of his licence and the provisions of this Act and its subsidiary legislation.

Part III

Individual Licences

39. –(1) Subject to subsection (2) of this section, a person may apply to the Commission, in writing and in such form as the Commission may prescribe, for an individual licence in respect of any matter requiring an individual licence under this Act.

(2) For the purposes of subsection (1) of this section and notwithstanding the provisions of section 33(1) of this Act, the Commission may from time to time specify additional criteria and qualifications that shall be met by persons wishing to apply for individual licences.

(3) The Commission may not grant an individual licence to a person if that person is operating under an existing class licence in respect of the same service or activity.

(4) All applications for individual licences shall be subject to payment of processing fees in such amount as the Commission may from time to time specify.

(5) An application under this section may be withdrawn at any time before it is granted or refused.

40. –(1) The Commission may at any time after the application for an individual licence is made, request the applicant to give to the Commission, within the period specified in the request, further information in support of the application.

(2) If any additional information or document required under subsection (1) of this section is not provided by the applicant within the time specified in the request or any extension of time granted by the Commission, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without affecting the right of the applicant to make a fresh application.

41. –(1) The Commission shall, within 90 days of receiving an application for an individual licence under this Chapter, that is not the subject of a competitive bid process, howsoever called or designed, inform the applicant by written notice –

whether or not the individual licence has been granted;

in the event of a grant, of any special or additional conditions that apply to the licence; and

in the event that the application has been refused, the reasons for the refusal.

(2) If the Commission neither grants nor refuses to grant an individual licence within 90 days from the receipt of an application, the Commission shall be deemed, at the end of the period, to have refused to grant the individual licence unless the applicant receives a written notice approving the application for the individual licence after the period.

42. –(1) The grant of certain individual licences may be conditional on the registration of undertakings by a prospective licensee.

(2) The Commission may, in granting individual licences, declare specified benefits only for licensees who have current registered undertakings under this section.

43. –(1) The licensee may apply for the renewal of an individual licence not later than 6 months before its expiry and the renewal fee to be determined by the Commission shall be payable upon approval of the application.

(2) If the Commission has no intention of renewing the individual licence, the Commission shall -

inform the licensee by written notice not later than 3 months from the date of receipt of the renewal application from the licensee, of its refusal to renew the individual licence; and

notify and publish, at least 30 days before the expiry of the individual licence such intention in at least one national daily newspaper.

(3) The Commission may refuse an application for the renewal of an individual licence if the Commission determines that the licensee has –

failed to comply with the terms and conditions of the individual licence;

failed to comply with the provisions of this Act or its subsidiary legislation; or

failed to comply with any instrument issued, made or given by the Commission.

(4) The affected licensee shall be given a reasonable opportunity to make written submissions to the Commission within a time period specified in the notice and such time period shall not be less than 14 days from the date of the notice.

(5) The affected licensee may within the time period specified in the notice submit a written submission and the Commission shall consider the submission.

44. –(1) A licensee may, by written notice, surrender his individual licence to the Commission at any time or in accordance with the requirements set out in the individual licence.

(2) The surrender shall take effect on the date the Commission receives the individual licence and the notice under subsection (1) of this section, or where a latter date is specified in the notice, on that date.

(3) The surrender of an individual licence shall be irrevocable unless it is expressed to take effect on a later date and before that date the Commission by notice in writing to the licensee allows the surrender to be withdrawn.

45. –(1) The Commission may, by declaration suspend or revoke an individual licence granted under this Act in any of the following circumstances -

the licensee has failed to pay any amount or fine required by or imposed pursuant to this Act or the individual licence;

the licensee has failed to comply with the provisions of this Act or its subsidiary legislation or the terms and conditions of the individual licence;

the licensee has contravened the provisions of any other written law relevant to the communications industry;

the licensee has failed to comply with any instrument issued, made or given by the Commission;

if the licensee -

(i) is unable to pay its debts within the meaning of that expression as defined in the Companies and Allied Matters Act,

(ii) enters into receivership or liquidation,

(iii) takes any action for its voluntary winding-up or dissolution or enters into any scheme of arrangement (other than in any such case for the purpose of reconstruction or amalgamation upon terms and within such period as may previously have been approved in writing by the Commission) or if any order is made by a competent court or tribunal for its compulsory winding-up or dissolution; or

the suspension or revocation is in the public interest.

(2) Notwithstanding any contrary provision in this Act, an individual licence may be suspended or revoked under subsections (1)(a), (b), (c) or (d) of this section only after –

the Commission shall by written notice have informed the licensee of its breach under the said subsection and demanded that the breach be rectified, (if it is capable of rectification), within 60 days from the date of the notice; and

the licensee has failed to rectify the breach within the said time-frame.

(3) Prior to the suspension or revocation of an individual licence under subsection (1)(a), (b), (c) or (d) of this section, the Commission shall inform the licensee by written notice, as soon as practicable, of its intention to suspend or revoke the licence and the reasons therefor.

(5) The affected licensee may, within the time period specified in the notice, submit a written submission and the Commission shall consider the submission in making its final determination and declaration on the suspension or revocation of the individual licence.

(6) Subject to subsections (4) and (5) of this section, the suspension or revocation of an individual licence shall take effect on the expiration of 30 days from the date on which the notice of the Commission’s declaration under subsection (3) of this section in respect of the suspension or revocation is served on the licensee.

(7) Where the suspension or revocation of an individual licence has taken effect, the Commission shall, as soon as practicable, cause the suspension or cancellation to be published in at least one national daily newspaper.

(8) Any delay or failure to publish the notice of suspension or revocation shall not in any manner affect the validity of the suspension or revocation.

46. –(1) In the event of the suspension of a licence, the Commission shall determine and communicate to the licensee the duration of the suspension and the penalties that shall be attendant therefor which may include but shall not be limited to withdrawal of assigned spectrum allocation.

(2) In determining the duration of and penalties consequent upon suspension of a licence, the Commission shall take into consideration, amongst other factors, the gravity of the breach that necessitated the suspension and any mitigating circumstances or conduct thereof.

47. –(1) Where the revocation of an individual licence under section 45 of this Act or the surrender of an individual licence under section 44 hereof, has taken effect, or where the individual licence has expired, the licensee shall immediately lose the right to provide any service in respect of which the individual licence was granted.

(2) Notwithstanding the provisions of subsection (1) of this section and without prejudice to specific individual licence conditions, the Commission may authorise the licensee in writing to carry on providing any facility or service for such duration as the Commission may specify in the authorisation for the purpose of -

winding up the licensee’s affairs;

relocating the licensee’s consumers to some other licensee as the Commission may determine and on such terms and conditions as the Commission may specify;

making or effecting such other arrangements as the Commission may specify for the continued provision of services to the licensee’s customers; and

carrying out such other ancillary and related activities as the Commission may consider necessary.

(3) Notwithstanding the provisions of subsection (1) of this section, the licensee whose individual licence has expired shall be entitled to carry on providing a service as if his individual licence had not expired upon proof being submitted to the Commission that the licensee has applied for the renewal of the individual licence in accordance with section 43 of this Act and that such application is pending determination by the Commission.

(4) Subject to subsections (2) and (3) of this section, a person who continues to provide service after the coming into effect of the provisions of subsection (1) of this section in respect of his licence commits an offence and, on conviction, is liable to the punishment prescribed in section 31(2) of this Act.

48. –(1) The Commission shall maintain a register of all individual licences that have been granted under this Act.

(2) The Commission shall maintain a separate register containing –

any special or additional conditions specified in the individual licence;

any written notice varying, revoking or imposing any special or additional conditions specified in the individual licence;

any written notice by the licensee surrendering his individual licence;

Any written notice by the Commission suspending or cancelling the individual licence; and

any written notice approving the transfer of an individual licence.

(3) The Commission shall maintain the registers in accordance with Part V of Chapter V of this Act.

Part IV

Class licence

49. –(1) The Commission may grant a class licence in respect of any matter requiring a class licence under this Act.

(2) A class licence granted under subsection (1) of this section shall contain such standard terms and conditions as the Commission may from time to time declare.

50. –(1) A person who intends to operate under a class licence shall register with the Commission by submitting a registration notice to the Commission in such form and manner as the Commission may from time to time prescribe.

(2) A registration fee, to be prescribed by the Commission, shall be payable by the person to the Commission as a condition precedent to the registration of that person.

(3) Subject to the exceptions provided in this Act, no person shall operate under any class licence unless the Commission duly registers the person.

51. –(1) The Commission may de-register any person subject to a class licence under this Chapter in any of the following circumstances –

the person has failed to pay any amount required by this Act or the licence;

the person has failed to comply with the provisions of this Act or its subsidiary legislation or the terms and conditions of the licence;

the person has contravened the provisions of any written law relevant to the communications industry;

the person has failed to comply with any instrument issued, made or given by the Commission; or

the de-registration is in the public interest.

(2) The person whose registration has been cancelled shall immediately lose the right to provide any service covered by the relevant class licence until such time as the Commission may decide to re-register the person.

52. The Commission shall in accordance with Part V of Chapter V of this Act maintain a register of –

all class licences;

all persons who are registered by the Commission to provide services under class licences;

all declarations by the Commission varying or revoking conditions or imposing other standard conditions as specified in the licence; and

all written notices by the Commission cancelling any registration.

Chapter V

Powers and Procedures of the Commission

Part I

Directions

53. –(1) The Commission may, from time to time, issue directions in writing to any person regarding the compliance or non-compliance of any licence conditions or provisions of this Act or its subsidiary legislation, including but not limited to the remedy of a breach of any licence condition or the provisions of this Act or its subsidiary legislation.

(2) The Commission shall, before issuing a direction under subsection (1) of this section, issue a notice in writing to the person specifying the nature of required compliance and the person shall be granted an opportunity to be heard or may submit a written submission within a reasonable time period specified in the notice on the reasons for his conduct or activity.

(3) The Commission shall, after the expiry of the notice specified in subsection (2) of this section, take into consideration any reasons provided by the person before making a decision in relation to the relevant conduct or activity of the person.

(4) after due consideration of any reasons provided by the person, the Commission may issue a direction under subsection (1) of this section requiring the person to take specified action directed towards ensuring that the person does not contravene or continue to contravene any of the conditions of his licence or any of the provisions of this Act or its subsidiary legislation.

(5) The Commission shall give the person written notice of its direction not later than 30 days from the date the decision was made on the direction and the person shall comply with the direction issued by the Commission.

54. The Commission may modify, vary or revoke a direction and the procedure set out in section 53 of this Act shall apply mutatis mutandis in respect of any modification, variation or revocation of a direction.

55. Without prejudice to any other provision of this Act or a licence condition, a person who fails to comply with a direction of the Commission shall be liable to the payment of fine to the Commission in such amount as the Commission may at its discretion impose.

56. The Commission shall maintain a register of all directions issued by the Commission, including any written instruments modifying, varying or revoking a direction, in accordance with Part V of this Chapter.

Part II

Inquiry

57. –(1) The Commission may hold a public inquiry on any matter of a general nature that relates to the administration of this Act or its subsidiary legislation which will serve the objects of this Act.

(2) Subject to subsection (3) of this section, the Commission may hold a public inquiry under subsection (1) of this section –

in response to a written request from a person or

on its own initiative,

only if it is satisfied that the matter is of significant interest to either the public or to current or prospective licensees under this Act.

(3) The Commission shall hold a public inquiry in all instances that it is mandatorily required to hold an inquiry under this Act or its subsidiary legislation.

(4) The Commission may combine two or more inquiries into a single inquiry and an inquiry under this Chapter shall be conducted as and when the Commission deems fit.

(5) The Commission may, for the purposes of an inquiry, exercise any or all of its investigation and information-gathering powers under Parts III and IV of this Chapter.

58. –(1) Subject to section 57 of this Act, if the Commission decides to hold a public inquiry, the Commission shall publish, in the manner that it deems appropriate, notice of –

the fact that it is holding the inquiry;

the period during which the inquiry is to be held;

the nature of the matter to which the inquiry relates;

the period, of at least 21 days, within which, and the form in which, members of the public are invited to make submissions to the Commission about the subject - matter of the inquiry;

the matters that the Commission would like the submissions to deal with; and

the address or addresses to which the submissions may be sent.

(2) the Commission does not need to publish at the same time or in the same manner the notice of all matters referred to in subsection (1) of this section.

(3) the Commission shall consider any submissions received within the time limit as specified in the notice and the submissions made by the members of the public shall be in the form and of the nature as specified in the notice.

59. –(1) Notwithstanding the provisions of section 58 of this Act, an inquiry or a part of an inquiry may be conducted in private if the Commission is satisfied that –

the documents or information that may be given, or a matter that may arise during the inquiry or a part of the inquiry, is of a confidential nature; or

the inquiry or part of the inquiry or a matter, or part of a matter, in public would not be conducive to the due administration of this Act.

(2) if an inquiry takes place in public and the Commission is of the opinion that –

the evidence or other material presented to the inquiry or

the material in written submissions lodged with the Commission

is of a confidential nature, the Commission may direct that -

the evidence or material should not be published; or

Its disclosure be restricted.

(3) A person shall not without an excuse that is considered reasonable by the Commission fail to comply with a direction under subsection (2) of this section.

(4) If an inquiry or part of an inquiry takes place in private, the Commission –

shall give a direction as to the persons who may be present at the inquiry or part of the inquiry; and

may give a direction restricting the disclosure of evidence or other material presented at the inquiry or part of the inquiry.

(5) Notwithstanding the provisions of section 55 of this Act, a person who without reasonable excuse fails to comply with a direction given under subsection (4) of this section shall be liable to the payment of fine to the Commission in such amount as the Commission may at its discretion impose.

60. –(1) The Commission shall publish a report setting out its findings as a result of any inquiry it conducts and the report shall be published within 45 days of the conclusion of the inquiry.

(2) The Commission shall not include in the report any material –

that is, in the Commission’s opinion, of a confidential nature; and

the disclosure of which is likely to prejudice the fair trial of a person; and

which would involve the unreasonable disclosure of personal information about any individual (including a deceased individual).

(3) Civil proceedings shall not lie against a person in respect of any loss, damage or injury of any kind suffered by another person because of any of the following acts -

the making of a request under section 57 of this Act; or

the making of a statement, or giving of a document or information, to the Commission in relation to an inquiry under this Chapter.

(4) The Commission shall maintain a register of all reports made pursuant to an inquiry under this Part, in accordance with the provisions in Part V of this Chapter.

Part III

Investigation for purposes of administration, inquiry, etc.

61. Notwithstanding the provisions of any other written law, the Commission may investigate any matter pertaining to the administration of this Act or its subsidiary legislation if the Commission has grounds to believe that an infringement, civil or criminal, of the provisions of this Act or its subsidiary legislation was, is or will be committed.

62. –(1) The Commission may conduct an investigation on a matter referred to in section 61 of this Act upon a written complaint by a person and the complaint shall specify the person against whom the complaint is made.

(2) If a complaint has been made to the Commission under this section, the Commission may make inquiries of the respondent for the purpose of deciding whether the Commission should, in its discretion, investigate the matter.

(3) If the Commission decides not to investigate, or not to investigate further, a matter to which a complaint relates, it shall not later than 60 days from the date of receipt of the complaint and in such manner as it thinks fit, inform the complainant and the respondent of the decision and the reasons for the decision.

63. –(1) The Commission shall before beginning an investigation of a matter to which the complaint relates, inform the respondent that the matter is to be investigated.

(2) An investigation under this Part shall be conducted as the Commission thinks fit and the Commission may, for the purposes of an investigation, obtain information from such persons as it thinks fit.

(3) Subject to subsection (4) of this section, a complainant or respondent may, at the Commission’s discretion, be given an opportunity to appear before the Commission in connection with an investigation.

(4) The Commission shall not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has given the complainant or respondent an opportunity to make written submissions about a matter to which the investigation relates within a time period of not less than 21 days.

(5) The Commission shall consider the submissions made by the complainant or the respondent under subsection (4) of this section before making its decision.

(6) The Commission may, after concluding an investigation, prepare and publish a report which shall cover –

the conduct of the investigation concerned;

any findings that the Commission has made as a result of the investigation;

the evidence and other material on which those findings were based; and

such other matters relating to, or arising out of, the investigation as the Commission thinks fit.

Part IV

Information-gathering Powers

64. –(1) This section applies to any person who is subject to this Act and who the Commission has reason to believe –

has any information including but not limited to accounts and records or any document that is relevant to the exercise of the Commission’s powers and functions under this Act or its subsidiary legislation; or

is capable of giving any evidence which the Commission has reason to believe is relevant to the exercise of the Commission’s powers and functions under this Act or its subsidiary legislation.

(2) The Commission may, by a written notice, direct any person who is subject to this Act to –

give the Commission, within the period and in the manner and form specified in the notice, any such information;

produce to the Commission, within the period and in the manner specified in the notice, any such documents, whether in a physical form or in an electronic media; or

make copies of any such documents and to produce those copies to the Commission within the period and in the manner specified in the notice;

(3) The Commission shall allow the person so directed under subsection (2) of this section a reasonable time to give and to produce any information or documents specified in the notice.

(4) Any person who is subject to this Act and who is required to provide information u