Market spotlight

Trends and developments

What is the current state of the telecoms market in your jurisdiction, including any trends and recent developments/deals?

 9mobile (formerly Etisalat Nigeria) is looking to attract new investors following the divestment by both the Etisalat Group and Mubadallah of their shares in the operator. The divestment was made as a result of Etisalat Nigeria’s inability to fulfil its repayment obligations under a $1.2 billion facility to a consortium of Nigerian banks. Barclays Bank has been appointed financial adviser for the sale of the shares to new investors.

There are presently four global system for mobile communications operators in Nigeria with over 139 million active subscribers as at September 2017. The biggest operators in terms of market share are:

  • MTN Nigeria, which has a 36% market share;
  • Globacom, which has a 26% share;
  • Airtel Nigeria, which has a 24% share; and
  • 9mobile (formerly Etisalat Nigeria), which has a 12% share.

Broadband penetration in Nigeria is currently estimated to be 21%. The National Broadband Plan proposes that this coverage should rise to 30% by the end of 2018.

MTN Nigeria’s proposed initial public offering is expected to be introduced in 2018 as it is currently engaging regulators and advisers have been appointed for the listing.

The Nigerian Communications Commission (NCC) has expressed an intention to review the interconnection rates for voice services which was fixed in 2013 in light of market realities. It also recently held the Stakeholders’ Forum on Cost-Based Study for the Determination of Mobile Voice Termination Rates.

The NCC has been attempting to prohibit the use of pre-registered SIM cards in Nigeria and has warned operators on the security implications of continuing to allow their use on their networks.

The NCC has announced that it has signed a memorandum of understanding with the Central Bank of Nigeria to allow digital mobile operators to incorporate special purpose vehicles to offer mobile money services. A joint technical committee has been set up by both organisations to work out the modalities.

Regulatory framework

Legislation

What is the primary legislation governing the telecoms market in your jurisdiction?

The primary legislation governing the telecoms market is the Nigerian Communications Act 2003. The act is complemented by further regulations, guidelines and codes issued by the Nigerian Communications Commission (NCC).

Reform

Are any regulatory reforms or initiatives envisaged?

The NCC recently conducted a public inquiry on the proposed Spectrum Trading Guidelines. The inquiry was conducted in preparation for the liberalisation of spectrum trading to permit spectrum transfer, leasing and sharing arrangements between telecoms operators.

The Guidelines for Commercial Satellite Communications was also published for comment and a public inquiry is expected to be held in due course.

Universal service obligations

What universal services obligations apply?

Under the Nigerian Communications Act 2003, the NCC is required to create a system to promote the widespread availability and usage of network services throughout the country by encouraging the installation of network facilities and the provision of telecoms services to:

  • institutions;
  • unserved and underserved areas; and
  • underserved groups within the community (under the Universal Service Provision).

 

The act also requires the establishment of:

  • the Universal Services Provision Fund (USPF);
  • a USPF board to supervise and oversee the management of the fund; and
  • a secretariat responsible for the day-to-day administration of the Universal Service Provision.

The USPF is funded by:

  • funds appropriated by the National Assembly;
  • contributions from the NCC based on the annual levies paid to the NCC by telecoms operators; and
  • gifts, loans, aids and other funds accrued.

The NCC’s current contribution to the USPF is 1% of the net revenue of its licensees, which it collects through an annual operating levy.

Regulators

Which authorities regulate the telecoms sector and what is the extent of their powers?

The telecoms sector is primarily regulated by the NCC pursuant to the Nigerian Communications Act 2003. However, in the provision of certain services or products, telecoms companies may fall under the jurisdiction of other regulators (eg, the provision of mobile money services falls under the supervision of the Central Bank of Nigeria (CBN) and participating operators are subject to the regulations of the CBN). To comply with environmental obligations in erecting telecoms masts and their operation, telecoms operators are also regulated by the National Environmental Standards and Regulations Enforcement Agency or its state equivalent.

Foreign ownership

Restrictions

Are there any restrictions on foreign ownership or investment in the domestic telecoms market?

There are no restrictions on foreign ownership or investment in the domestic telecoms market. The Nigerian Investment Promotion Act permits non-Nigerians to invest and participate in any business enterprise in Nigeria except business enterprises on the ‘Negative List’. Foreign companies intending to carry out business in Nigeria are required to incorporate a separate legal entity in Nigeria. Therefore, foreign companies intending to apply for a licence to provide telecoms services in Nigeria are required to incorporate a separate local entity, which can then submit an application for a telecoms licence to the Nigerian Communications Commission (NCC).

Each company must have a minimum of two shareholders. A foreign company is required to have a minimum of N10 million (approximately $28,000) authorised share capital and at least 25% of the company’s authorised share capital must be allotted – but not necessarily paid up – at the time of incorporation.

After incorporation, the foreign company is required to register with the Nigerian Investment Promotion Commission (NIPC). Registration with the NIPC guarantees all foreign investors the unconditional transferability and repatriation (through an authorised bank) of profits accruing from their investment and capital following divestment.

A foreign enterprise may also purchase shares of a Nigerian enterprise in any convertible foreign currency.

Licensing and authorisation

Licences/authorisations required

What licences/authorisations are required to provide telecoms services?

There are two types of licence granted by the Nigerian Communications Commission (NCC):

  • individual licences; and
  • class licences.

An individual licence is a type of authorisation in which the terms, conditions and obligations, scope and limitations are specific to the service provided. Licensing takes place through:

  • an auction;
  • a ‘first come, first served’ system;
  • a ‘beauty contest’; or
  • a standard administrative procedure.

A class licence is a type of general authorisation in which the terms and conditions and obligations are common to all licence holders. A class licence only requires registration with the NCC to begin operating.

Procedure

What are the eligibility, documentary and procedural requirements to obtain a licence/authorisation?

To obtain an individual licence, applicants must:

  • download an individual licence application form from the NCC website;
  • pay N1,000 to the NCC;
  • provide three copies of the completed application form;
  • accompany the form with the following documents:
    • a certificate of incorporation;
    • a tax clearance certificate;
    • a certified true copy (CTC) of articles and memorandum of association;
    • a CTC of Form CO7 (list of company directors);
    • a feasibility report of the service applied for;
    • three photographs of the authorised representative;
    • photographs of company directors; and
    • a CTC of the company address;
  • ensure that the application forms and accompanying documents are spiral bound before submission;
  • enquire to the NCC regarding the required payment;
  • submit the application and provide a non-refundable administrative charge, which is 5% of the relevant licence fee; and
  • pay the full licence fee once the application has been approved.

To obtain a class licence, applicants must:

  • download a class licence application form from the NCC website;
  • pay N1,000 to the NCC;
  • provide two copies of the completed application form;
  • accompany the form with the following documents:
    • a certificate of incorporation;
    • a tax clearance certificate;
    • a CTC of articles and memorandum of association;
    • a CTC of Form CO7 (list of company directors);
    • two passport photographs of the authorised representative;
    • a certificate of qualified technical staff;
    • a brief on the proposed service of the company; and
    • passport photographs of the company directors or the sole proprietor;
  • ensure that the application forms and accompanying documents are spiral bound before submission;
  • pay a licence fee of N10,000 on submission of the application.

Validity period and renewal

What is the validity period for licences/authorisations and what are the terms of renewal?

The following table outlines the validity period for telecoms licences.

  •  
  •  
  •  

Individual licence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  • Value added services, including:
  • prepaid calling cards;
  • call directory services;
  • special numbering services;
  • call centre services; and
  • content services using short code;
  • automated vehicle tracking services;
  • internet services;
  • collocation/infrastructure sharing services;
  • internet exchange services;
  • interconnect exchange services;
  • full gateway services;
  • national long distance operator services; and
  • unified access service (ie, fixed telephony, national/regional, DML, RLDO, NLDO, IDA, FGS):
  • national;
  • Tier 1;
  • Tier 2;
  • Tier 3;
  • Tier 4;
  • Tier 5; and
  • international cable infrastructure and landing station licence.

 

  • Five years;
  • five years;
  • ten years;
  • five years;
  • five years;
  • five years;
  • five years;
  • ten years;
  • ten years;
  • ten years;
  • ten years;
  • 20 years; and
  • 20 years.

 

 

  • 20 years;
  • 20 years;
  • 20 years;
  • 20 years;
  • 20 years; and
  • 20 years.

 

Class licence

  • Sale and installation of terminal equipment;
  • repairs and maintenance of telecoms facilities;
  • cabling;
  • tele-centres or cyber cafés; and
  • public payphones.
  • Indefinite;
  • indefinite;
  • indefinite;
  • indefinite; and
  • indefinite.

 

Renewal

The licensee must apply for renewal of an individual licence not later than six months before its expiry and the renewal fee is determined by the NCC.

If the NCC does not intend to renew the licence, it must inform the licensee in writing not later than three months after receiving the renewal application.

Fees

What fees apply?

The following table outlines the fees for telecoms licences.

 Type of licence

  •  
  •  

Individual licence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  • Value added services, including:
  • prepaid calling cards;
  • call directory services;
  • special numbering services;
  • call centre services; and
  • content services using short code;
  • automated vehicle tracking services;
  • internet services;
  • collocation/infrastructure sharing services;
  • internet exchange services;
  • interconnect exchange services;
  • full gateway services;
  • national long distance operator services; and
  • unified access service (ie, fixed telephony, national/regional, DML, RLDO, NLDO, IDA, FGS):
  • national;
  • Tier 1;
  • Tier 2;
  • Tier 3;
  • Tier 4;
  • Tier 5; and
  • international cable infrastructure and landing station licence.

 

  • N1 million;
  • N500,000;
  • N3 million;
  • N500,000;
  • N500,000;
  • N500,000;
  • N500,000;
  • N2 million;
  • N1 million;
  • N1 million;
  • N50 million;
  • N20 million;
  • the fee depends on the services which the applicant is interested in; and

 

 

 

  • $210,000.

Class licence

  • Sale and installation of terminal equipment;
  • repairs and maintenance of telecoms facilities;
  • cabling;
  • tele-centres or cyber cafés; and
  • public payphones.
  • N10,000;
  • N10,000;
  • N10,000;
  • N10,000; and
  • N10,000.

Timeframe

What is the usual timeframe for obtaining a licence/authorisation?

An applicant must receive a response to its licence application within 90 days. For class licences, the applicant will receive an offer letter immediately after the acceptance of the application. For individual licences – depending on the service and if the accompanying information is complete – the applicant should receive a response in four to eight weeks.

Network access and interconnection

Regulation

What rules, requirements and procedures govern network-to-network access and interconnection?

Network-to-network access and interconnection rules can be found under the Nigerian Communications Act 2003 and in regulations and guidelines issued by the Nigerian Communications Commission (NCC). The relevant regulations and guidelines include:

  • the Telecommunications Networks Interconnection Regulations 2007;
  • the Guidelines on Procedure for Granting Approval to Disconnect Telecommunications Operators;
  • the Guidelines on International Gateway Access and Voice over Internet Protocol; and
  • the Guidelines on the Technical Standards for Interconnectivity of Networks.

The Nigerian Communications Act and related regulations and guidelines include the following rules:

  • where a network services or facilities provider receives a request for interconnection from another licensee, it is obligated to interconnect the party making the request pursuant to terms and conditions negotiated by the parties in good faith;
  • all interconnection agreements must be in writing and registered with the NCC by either or both parties within 30 days from the date of the execution of the agreement;
  • the agreement must comply with the principles of:
    • neutrality;
    • fairness;
    • transparency;
    • non-discrimination;
    • fair competition;
    • universal coverage;
    • access to information;
    • equality of access; and
    • equal terms and conditions;
  • the terms of the interconnection agreement must primarily be agreed on by the parties and the NCC must only become involved:
    • at the request of either or both parties;
    • where there is no consensus;
    • in the public interest; or
    • where the agreement is in contravention of any law or regulation; and
  • a party to an interconnection agreement is prohibited from disconnecting the other party, notwithstanding the provision of the interconnection agreement, without prior written approval from the NCC. All disconnections and requests to disconnect must comply with the Guidelines on Procedure for Granting Approval to Disconnect Telecommunications Operators.

In relation to access, a network facilities or service provider must grant access to its facilities after receiving a reasonable request to do so. The rules on interconnection also apply to the provision of access.

Pricing

Are access/interconnection prices subject to regulation?

Yes, under the Nigerian Communications Act 2003 and in the public interest, the NCC determines voice interconnection rates to be applied by all fixed and mobile operators, both in concluded agreements and when negotiating interconnection agreements. Voice interconnection rates currently comply with the Determination of Voice Interconnection Rates issued in 2013 by the NCC.

Disputes

How are access/interconnection disputes resolved?

The Nigerian Communications Act gives the NCC the power to resolve disputes between operators. Parties must attempt to resolve disputes through negotiations before involving the NCC. If negotiations fail, any of the parties to the dispute can notify the NCC in writing and request its intervention. Parties to an interconnection agreement may appeal to the NCC when there are unnecessary delays in concluding an interconnection agreement or in agreeing changes to an existing agreement.

When resolving disputes the NCC is not bound by technicalities, legal form or rules of evidence and acts in accordance with the ethics of justice and on the merits of each case. The NCC may also refuse to intervene when the issues of the dispute are deemed to be frivolous or trivial. The decision, reasoning, terms and conditions of any resolved dispute must be made in writing and copies provided to the parties by the NCC as soon as is practicable. The decision of the NCC is binding on the parties involved and can be enforced by a court in the same way as a court judgment.

A party may appeal the decision to the Federal High Court. However, the decision remains binding until the final determination of the appeal.

If a party continues to default on its obligations under an interconnection agreement, after exhausting all options in the agreement, the non-defaulting party can apply to the NCC for a disconnection of the defaulting party. However, the process for disconnection under the Guidelines on Procedure for Granting Approval to Disconnect is complicated.

In addition to the Nigerian Communications Act, the NCC has issued Rules for the Arbitration of Interconnection Issues and Disputes to govern the arbitration of open or unresolved interconnection issues. The arbitration process is commenced by the filing of a petition for arbitration by the petitioning party where the negotiating process fails to reach an agreement within a period of 90 days. The non-petitioning party may respond to a petition for arbitration within a period of 21 days after the petition has been filed. Where the non-petitioning party fails to file a response to the petition, the arbitrator will proceed to determine the matter based on the documents before it in accordance with the provisions of the Nigerian Communications Act and the applicable regulations and guidelines.

The arbitral panel must act fairly and impartially and give each party an opportunity to present its case and respond to that of its opponent. A final award must be delivered no later than six months after the commencement of the petition. The arbitrator may issue an interim ruling where a dispute directly affects the ability of a party to continue to provide an uninterrupted service to its customers.

Next-generation access

Have any regulations or initiatives been introduced or proposed with respect to next-generation access?

There are no specific regulations targeted at next-generation access in Nigeria.

Infrastructure access

Land access

What rules and procedures govern telecoms operators’ access to land (both public and private) to install, maintain and repair infrastructure?

Access to install, maintain and repair infrastructure on both public and private land is in most instances made through a leasing or right of way arrangement. The obligations and responsibilities of both parties are outlined in the negotiated leasing or right of way arrangement and usually a rental fee applies. Access to install, maintain and repair infrastructure is therefore regulated by any negotiated and agreed terms.

Infrastructure sharing

Are infrastructure sharing agreements among operators popular and/or encouraged by the regulatory authorities? Which infrastructure sharing structures/agreements are commonly used? Do any regulations apply?

The regulatory authorities actively encourage collocation and infrastructure sharing. They have released the Guidelines on Collocation and Infrastructure Sharing, which define a predetermined framework with the intention of removing uncertainty and create an environment for better co-operation between operators.

The authorities continue to encourage and promote the sharing of:

  • rights of way;
  • masts;
  • poles;
  • antenna masts;
  • tower structure ducts;
  • trench spaces in buildings; and
  • electric power (both public and private sources).

The authorities have issued several licences for infrastructure sharing and collocation to service providers.

The authorities have expressed an intention to licence seven infrastructure companies (infracos) to support the acceleration of the provision of broadband coverage throughout Nigeria. The infracos plan to deploy broadband network infrastructure in their areas of coverage on an open access, non-discriminatory and price-regulated basis. Two licences have already been issued for the Lagos and North Central zone.

The major mobile network operators in Nigeria have undertaken various sale and leaseback arrangements transferring ownership and or management of part or all of their network infrastructure to independent infrastructure providers who are contractually permitted to enter into leasing and collocation arrangements with third-party operators

Pricing and consumer protection

Retail pricing

What rules govern retail pricing for telecoms services?

Individual licence holders are required to seek prior approval from the regulator of tariffs or charges for the provision of any service. Changes to any approved tariff or charges must also be approved by the regulator. The regulator may impose appropriate financial penalties on any operator which exceeds approved tariffs.

All tariff rates and charges must be published. The rates must:

  • be fair and non-discriminatory;
  • be cost-oriented and in general, cross-subsidies will be eliminated;
  • not contain discounts that unreasonably prejudice the competitive opportunities of other providers;
  • be structured with levels set to attract investment in the communications industry; and
  • take into account the regulations and recommendations of international organisations of which Nigeria is a member.

Consumer contracts

What rules govern consumer service contracts?

Pursuant to its powers under the Nigerian Communications Act 2003, the regulator issued the Consumer Code of Practice Regulations 2007, which requires every communications service provider to prepare a consumer code for the provision of services and related consumer practices applicable to it and submit it for approval by the regulator. The regulator has attached to it as a schedule the General Consumer Code of Practice, which is to act as a guide to service providers for the production of their specific individual codes. The consumer code to be prepared by the service provider will include at least the terms and conditions of the general code or equivalent terms and conditions that are no less favourable to consumers.

On approval, all services and related consumer practices will be governed by the provisions of the approved code from the publications date.

The minimum terms and conditions as prescribed by the general code covers areas including:

  • the provision of information to customers;
  • service contracts;
  • pricing information;
  • contract term and termination;
  • warranties;
  • advertising and representations;
  • unsolicited marketing;
  • consumer billing;
  • protection of consumer information; and
  • complaints handling.

The preparation of a consumer code by a consumer forum, subject to ratification by the regulator is also acceptable.

Disclosure requirements

Are telecoms service providers bound by any consumer disclosure requirements?

Yes, in accordance with the General Consumer Code of Practice (Schedule 1) to the Consumer Code of Practice Regulations 2007 any telecoms service provider that collects information on individual consumers is required to adopt and implement a policy regarding the proper collection, use and protection of that information. The service provider must ensure that any other service provider or other persons with which it exchanges or otherwise discloses such information have adopted and implemented an appropriate protection of consumer information policy.

Competition

Issues and concerns

Are there any particular competition issues or concerns in the domestic telecoms market?

Following the withdrawal of the data floor price cap in October 2015, the regulator directed service providers on a price floor for the data segment of the telecoms sector to commence in December 2016. The regulator stated that the decision to have a price floor was primarily aimed to:

  • promote a level playing field for all operators in the industry;
  • encourage small operators and new entrants; and
  • not necessarily to hike prices.

However, the directive was suspended due to public outcry as to the likely price hike that may follow the implementation of a data floor price. Reports suggest that there has been a 65% decrease in data prices in Nigeria over the last two years resulting in reduced margins for operators and it is believed that the price wars might lead to the demise of some of the smaller players in the industry.

The Nigerian Senate recently passed the Federal Competition and Consumer Protection Bill 2017 which seeks to establish a Federal Competition and Consumer Protection Commission and Tribunal for:

  • the development and promotion of fair, efficient and competitive markets in Nigeria;
  • the facilitation of access to safe products by all citizens; and
  • the protection of rights for all consumers in Nigeria.

The bill is yet to be passed by the House of Representatives.

Sector-specific regulation

Do any sector-specific competition regulatory/legal provisions apply (eg, special conditions for dominant telecoms market players)?

Yes, in accordance with the provisions of the Nigerian Communications Act 2003 the Nigerian Communications Commission (NCC) has the exclusive ability to:

  • determine;
  • pronounce upon;
  • administer;
  • monitor; and
  • enforce compliance with competition laws and regulations, whether of a general or specific nature.

The NCC has the power to determine whether a telecoms service provider is in a dominant position in the market. In making such a determination the NCC may publish guidelines and regulations which clarify how it tests whether a service provider holds a dominant position.

The NCC issued the Competition Practice Regulations 2007 to provide a regulatory framework for the promotion of fair competition in the communications sector and protection against the misuse of market power or other anti-competitive practices.

The regulation provides further guidance on:

  • the standards and procedures which the NCC applies when determining whether particular conduct constitutes substantial lessening of competition;
  • what agreements or practices the NCC considers to be anti-competitive;
  • the standards and processes the NCC applies in determining whether an operator has a dominant position in one or more communications markets;
  • what conduct is deemed to be an abuse of dominance; and
  • the merger review procedures applied by the NCC.

In determining whether or not a particular service provider or operator is in a dominant position in one or more specifically defined sectors, the NCC may consider one or more of the following:

  • the market share of the operator, which is determined by referring to:
    • revenues;
    • numbers of subscribers; and
    • volumes of sales;
  • the overall size of the operator in comparison to its competitors, particularly any resulting economies of scale or scope that permit the larger operator to produce products or services at lower costs;
  • control of network facilities or other infrastructure, access to which is required by competitors and that cannot, for commercial or technical reasons, be duplicated by competitors;
  • the absence of buying power or negotiating position by customers or consumers, including substantial barriers to switching service providers;
  • ease of market entry and the extent to which actual or potential market entry protects against the exercise of market power such as raising prices; and
  • the rate of technological or other change in the market and related effects for market entry or the continuation of a dominant position.

Separation

Are there any requirements for structural, functional or accounting separation of operators’ activities?

Under the Telecommunications Network Interconnection Regulations, when interconnection services are not provided through a structurally separate subsidiary, a dominant operator is required to keep separate accounts as if the interconnection services were in fact provided by a legally independent company. A dominant operator is required to maintain separate accounts in respect of interconnection services and its core telecoms services.

Pursuant to the Competition Practices Regulations, when the NCC determines that the activities of an operator constitutes an abuse of domination position or anti-competitive practices it may require changes in action or activities as a means of eliminating or reducing the abusive or anti-competitive effect. This may include a directive for the structural, functional or accounting separation of the infringing service or business.

Spectrum

Allocation

What rules and procedures govern spectrum allocation?

The sole and exclusive power to manage and administer the frequency spectrum for the telecoms sector, to grant licences and regulate the use of the frequency spectrum is vested in the NCC.

The NCC is authorised to make regulations in respect of spectrum assignment and related matters, including the procedure for the assignment of spectrum which can be made by:

  • auction;
  • tender;
  • fixed price determined by the NCC; or
  • competitive bidding.

Fees

What fees apply to spectrum allocation/authorisation?

Frequency Spectrum (Fees and Pricing) Regulations 2004 (amended in 2009) covers the determination of all frequency spectrum fees for commercial activities in the telecoms sector in Nigeria.

The regulations provide for a pricing formula for commercial frequency spectrum and microwave frequency spectrum. The price of spectrum (excluding microwave frequencies) is calculated on an annual per state basis using the formula in the regulations. Microwave frequencies are not priced on a state basis, but are also calculated using the formula in the regulations. Unit price is uniform throughout the federation and subject to review.

Transferral

Can spectrum licences be transferred, traded or sub-licensed?

No, however the NCC has just concluded a public inquiry on its draft guideline on spectrum trading. There are strong indications that spectrum trading will soon be permitted in Nigeria.

Voice over Internet Protocol

Regulation

How is Voice over Internet Protocol (VoIP) regulated in your jurisdiction?

The Nigerian Communications Commission has stated that it does not license or regulate technology. However, it has published Guidelines on International Gateway Access and Voice over Internet Protocol.

Telephone numbers

Allocation

How are telephone numbers allocated in your jurisdiction?

The Nigerian Communications Commission (NCC) has the exclusive power to control, plan, administer, manage and assign the numbering and electronic addressing of network services and applications services in Nigeria.

Under the Nigerian Communications Act, the NCC issued the Numbering Regulations 2008 to provide a regulatory framework for the:

  • control;
  • planning;
  • administration;
  • management; and
  • assignment of numbers.

The regulations set out the rules for the assignment, transfer, porting and use of numbers under the national numbering and electronic addressing plan.

Applications are submitted to the NCC for the assignment of a set of number in blocks which are defined by the National Numbering Plan. The NCC may refuse or grant the application. In making its decision, the NCC considers:

  • any earlier decisions about assignments to the applicant or other operators for a service similar to the intended services;
  • any statements in the licence of the applicant about eligibility for providing services or being assigned numbers;
  • the usage conditions;
  • the digit analysis capabilities of communications networks operating in Nigeria;
  • the utilisation of the assignment predicted for 12 months after the grant of the assignment over the next three years; and
  • the current utilisation of existing assignments to the applicant for the intended services.

The NCC is required to communicate its decision on an application to the applicant – including reasons for any refusal of an application – within one month of receiving the application.

Number portability

What rules govern telephone number portability?

The Mobile Number Portability Regulations 2014 were issued by the NCC to provide a regulatory framework for the operation of mobile number portability in Nigeria. The Nigeria Mobile Number Portabilty Business Rules and Port Order Processes 2015 were also issued by the NCC to set out the business rules for the porting process.

At present, porting is only available between global system for mobile communications operators in Nigeria. The porting process is recipient-led and must be initiated by the subscriber visiting the recipient operator’s office, a customer care shop or a retail point of sale, where the subscriber must complete a form and provide proof of identification. There are no charges for porting. Subscribers cannot port to another operator or back to their original operator within 90 days of a previous port. The current operator is not allowed to contact and attempt to retain the subscriber while the porting process is ongoing. The porting process is usually completed within 48 hours.

Privacy and data security

Net neutrality

What is your jurisdiction’s regulatory stance on net neutrality?

The Nigerian Communications Act does not have any direct or specific provision on net neutrality or traffic management. However, the Nigerian Communications Commission (NCC) is engaging stakeholders with a view to establishing an Internet Code of Service. The NCC expects that the code will promote and safeguard an open internet.

Encryption

Are there regulations or restrictions on encryption of communications?

There are no specific regulations or restrictions on the encryption of communications. However, adherence to international standards in relation to encryption and related matters is expected from operators.

Data retention

Are telecoms operators bound by any rules or requirements on the retention of consumer communications data? If so, for how long must data be retained?

Under the Consumer Code of Practice Regulations, the operator is required to retain records of a customer’s bill and related charges for a minimum period of 12 months. Information collected and recorded as part of the operators complaint handling process is also required to be retained for at least 12 months after the resolution of the complaint.

The Cybercrime (Prohibition, Prevention etc) Act 2015 requires service providers to keep all traffic data and subscriber information for a period of two years. On the request of a relevant authority or any law enforcement agency, a service provider is required to preserve, hold or retain:

  • traffic data;
  • subscriber information;
  • non-content information; and
  • content data.

Government interception/retention

What rules and procedures govern the authorities’ interception of communications and access to consumer communications data?

The Cybercrime (Prohibition, Prevention etc) Act 2015 provides that where there is reasonable ground to suspect that the content of an electronic communication is required for the purposes of a criminal investigation, on the basis of an information on oath, a judge may order a service provider to intercept, collect, record, permit or assist with the collection or recording of content data and traffic data in relation to specified communications transmitted by means of a computer system.

Pursuant to the Nigerian Communications Act 2003, the NCC may determine whether an operator should implement the capability to allow for  authorised interception of communications and it may specify the technical requirements for doing so.

Data security obligations

What are telecoms operators’ general data security obligations to consumers?

The draft Guidelines on Data Protection 2013 issued by the National Information and Technology Development Agency (NITDA) covers all organisations that process the personal data of Nigerian citizens inside and outside of Nigeria and prescribes minimum data protection requirements for the collection, storage, processing, management, operation and technical controls in relation to such information.

The draft NITDA guidelines provide that:

  • personal data must be processed fairly and lawfully;
  • personal data must only be used in accordance with the purposes for which it was collected;
  • personal data must be adequate, relevant and not excessive;
  • personal data must be accurate and where necessary kept up to date;
  • personal data must be kept for no longer than is necessary;
  • personal data must be processed in accordance with the rights of data subjects;
  • appropriate technical and organisational measures must be established to protect the data; and
  • personal data must not be transferred outside of Nigeria unless adequate provisions are in place for its protection.

The General Consumer Code issued by the NCC as a schedule to the Consumer Code of Practice Regulations 2007 recognises and restates the internationally accepted general principles on data protection and privacy and is largely similar to the provision of the draft NITDA guidelines. The code also provides detailed complaint submission and handling processes for the contravention of any of the provisions of the code.

The Registration of Telephone Subscribers Regulation 2011 was issued by the NCC to provide a regulatory framework for the registration of subscribers to mobile telephone services and for the establishment, control, administration and management of the central database. In compliance with the regulations, providers of mobile telephone services are required to collect, store and transmit subscriber information to the central database. In line with the provisions of the regulations, the central database is the property of the Federal Government of Nigeria and is kept at the NCC. However, the regulations allow mobile telephone service providers to retain and use subscriber information collected by them on their networks in accordance with the provisions of the General Consumer Code of Practice for Telecommunications Services, which has provisions that comply with the international standards on data protection and privacy.

Under the Cybercrime (Prohibition, Prevention etc) Act 2015 service providers are required to preserve and retain traffic data and subscriber information for a period of two years and to release this information to law enforcement agencies if requested to do so. When providing the information to law enforcement agencies the service provider must consider the privacy rights of the individual and take appropriate measures to safeguard the confidentiality of the data retained, processed or retrieved. The act also details fines and terms of imprisonment for:

  • the interception of electronic messages;
  • unlawful interception;
  • computer fraud and forgery;
  • unauthorised modification of data; and
  • systems interference.