Interconnection and Disconnection of Network Service Providers: An Exposition on the Nigerian Communication Act and the Relevant NCC Guidelines

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By Olatunde Olayinka Damilola

The enactment of the Nigerian Communication Act 2003 reviewed the monopoly of the telecommunication sector and ushered in new entrants into the telecommunication sector. The aftermath of this review brought the establishment of more than one network service providers and a need to ensure interconnectivity, that is the enablement of different network users or subscribers to access one another without extra expenses of registering under more than one network provider. Interconnection according to section 157 of the NCA, 2003 is defined as, the Physical and Logical linking and connection of communication system used or operated by the same or different licensee in order to convey messages to and from the respective systems for the provision of services. Based on further references, interconnection may be defined as the physical and logical linking of public electronic communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with the users of the same or another undertaking, or to access services provided by another undertaking[1].

Based on the introduction of Interconnection in the Nigerian Telecommunication Sector by the NCA 2003, and its inherent advantages to both network operators and subscribers, this work seeks to examine the contractual framework of an interconnectivity agreement, as an exposition for both subscribers and new entrants in the sectors alike, while also sufficiently discussing the roles and provisions of relevant guidelines of the NCC in regulating the execution of this concept.

NCC GUIDELINES ON FORMATION OF AN INTERCONNECTION AGREEMENT

The guidelines for interconnectivity among network providers are strictly regulated by the Nigerian Communication Commission in accordance to the provision of the Nigerian Communication Act 2003[2], and also in line with the NCA Telecommunication Network Interconnection Regulation 2007[3], a regulation made by the commission pursuant to its power in section 99 of the former legislations. Nevertheless, other guidelines relevant to the interconnectivity of network service providers in Nigeria includes the NCC Guidelines on the Technical Standards for Interconnectivity of Networks, and the NCC Guidelines on International  Gateway Access and Voice Over Internet Protocols (VoIP).

According to section 96 of the Nigerian Communication Act 2003, similar in object to section 1 of the Nigerian Telecommunication Network Regulation 2007, a licensed telecommunications operator shall on receipt of a request for interconnection from another licensed telecommunication operator have an obligation to interconnect its telecommunications network with that licensed telecommunications operator’s network in accordance with the principles in section 97 of the Act, the NCA Telecommunication Network interconnection Regulation( as provided in section 1 of the Regulation) and subsequent guidelines issued by the commission. These principles includes that the interconnectivity agreement must be in writing, must be published from time to time by the commission, and must embody the principles of principles of neutrality, transparency, non-discrimination, fair competition, universal coverage, access to information, equality of access and equal terms and conditions. Interconnection should be set up in such a manner that the terms do not discriminate unduly between operators or between any operators’ own networks and services and those of other interconnecting parties[4].

Furthermore, the Incumbent party, and the requesting party are permitted a decent range of discretion in determining the terms and conditions of their interconnectivity agreement[5]. This is to be exercised in such a way that the right to interfere by the NCC is not absolutely prejudiced. In fact, the NCC reserves the  right to interfere suo motu or at the instance of either parties[6]. The NCC may interfere suo motu [7], where the agreement is inconsistent with the guidelines of the NCC or thr provisions of the NCA 2003,  where their is delay between the two parties to reach a consensus on specific issues of the agreement, or where in protection of public interest and consumer right of both networks, it is necessary to do so. Finally, section 98 of the NCA 2003 provides that all agreement between the parties are expected to be submitted for approval and recording to the commission within 30days from the execution of the agreement.

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On the technical aspect of interconnection, each interconnecting party is saddled with the responsibility for the construction, operation and maintenance of interconnection equipment and facilities located or installed within its premises to ensure adequate, reliable, and efficient service to the public at all times as an implied term by statute in their agreement. Any modification, substitution or addition of interconnection equipment and facilities required must be mutually agreed upon by both parties within due time[8]. More also, it is expected that each interconnecting party shall take all necessary steps, precautions and safeguards in the location, construction and maintenance of its equipment, and ensure their safety from natural hazards, human vulnerability and other forms of interference and disruptions. In all, the minimum technical conditions for interconnection must be met by both service providers and switching and transmission systems must be designed on internationally accepted Open Network Architecture specifications and Open Network Provisioning standards[9].

NCC GUIDELINE ON DISCONNECTION AND TERMINATION OF AN INTERCONNECTION AGREEMENT

With the involvement and the exercise of regulatory power of the Nigerian Communication Commision as an umpire in the establishment of interconnection between telecommunication providers, the disconnection or discontinuation of any interconnection agreement is also  expected to be done with the approval of the Commission notwithstanding the terms and condition in the contract between the two telecommunication parties. In fact, a written consent from the commission is a condition precedent to the termination of any contract between network providers on interconnection[10].  This is deemed necessary as a need to properly regulate the activities of network service provider in the country, and to ensure that the disconnection of interconnected networks are not done arbitrarily, such that the rights of the consumers are left to suffer[11].

The NCC guidelines for granting approval for disconnection, according to section 2 of the Guideline, are solely developed to ensure that the procedure for granting approval by the Commission for the disconnection of a licensee is founded on a predetermined framework to engender transparency, certainty and fairness. Furthermore, it is also expected that the guideline will help to debar arbitrary disconnection of inter connection agreement between network providers on reasons not justifiable by act such as business feuds outside the agreement, whilst also protecting the interest of the subscribers under such telecommunication networks. In all the guideline of the NCC aims at ensuring good corporate governance practices among telecommunication operators in the country.

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In applying for disconnection, every operator (hereinafter referred to as “Applicant”) that has met with the requirement in paragraph 5 of the guideline may pursuant to section 3(1) of the guideline apply to the commission for an approval to disconnect (partial disconnection or full disconnection) an interconnected operator (hereinafter referred to as “Respondent”) for only reasons that: the respondent has failed to settle its interconnection indebtedness after it  has become due, the interconnection agreement has been terminated or deem terminable in accordance with the terms of the agreement thereof, that is a fundamental breach of the interconnection agreement,  the respondent is engaged in acts contrary to the terms of its licence with regards to the form of  interconnection, or that the respondent is in breach of any provision established under the NCA Act or any other subsidiary legislation made by the Commission as regards interconnectivity.

On the receival of an application for disconnection from the Applicant, the commission as an umpire shall thereafter in the spirit of fair hearing, forward the complaint on the application to the respondent, affording it the opportunity to defend itself by stating its reason or argument on why approval should not be granted for disconnection[12]. It is expected that the respondent on his part shall furnish the commission with a reply to the application within five working days, to have the Commission consider both sides in its decision without delay.  However, where such respondent refuses to forward a reply within the five days period, the commission may make a submission based on the application of the applicant alone. In certain exceptional circumstances, the commission might choose to exercise its discretionary power to extend the five days period for the respondent response as in paragraph 3(4) of the guideline,  by three days or less, but not longer than three days.

In cases where the reason for application was based on indebtedness of the respondent, the commission may serve as a mediator between the parties to reach a temporary compromise. According to paragraph 6(1) of the guideline, the commission may opt to invite the two parties to a hearing where the respondent could be made to pay part of his debt, at least 50%, as well as sign an undertaking to be drafted on conditions and terms of the applicant to extend the interconnection agreement in lieu of the remaining debt. Where the Respondent however refuses to meet the terms of the undertaking or is unable to pay his debts, the commission may grant the disconnection application of the applicant and issue a pre-disconnection notice to the parties i.e the applicant and respondent, pursuant to paragraph 8. As a matter of fact, it is provided by that where an operator is guilty of gross indebtedness, the interconnect agreement between both parties shall automatically terminate[13].

It is pertinent to note that in the disconnection of a telecommunication provider from an interconnection agreement, the right of the consumer is sufficiently taken into account, and not in any way ignored. To ensure that the consumers or users of the network provider are not caught by surprise, the commission is required to publish a pre-disconnection notice in two national newspapers and by SMS to all the respondent’s subscribers[14]. Thereafter, subscribers are allowed a ten days period where they are expected to consider porting from the respondent network to another network[15].

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Finally, where a network service provider has been disconnected from an interconnectivity agreement, it does not make it an remediable circumstance. The two parties are still allowed to broker a new agreement for Interconnectivity, provided once again, the Nigerian Communication Commission is consulted in doing this and the necessary regulations are complied with[16].

CONCLUSION

From the foregoing, this work has properly examined the advent of the Nigerian Communication Act 2003 which was made to eradicate network monopoly, permit interconnectivity between different network service provider and to ensure a fair competition in the communication sector. More also, its positioning of the Nigerian communication commission in the centre of the sector as an umpire to regulate the Interconnection and disconnection of Telecommunicator operators in the Country has been sufficiently espoused. It is therefore required of telecommunication operators to adhere strictly to the rules of the game i.e. the NCA 2003 and the NCA Telecommunication Network interconnection Regulation and NCC Guidelines for Disconnection of Telecommunication Network Operator in  interconnecting their networks and ensuring inter communication among their subscribers vis-a-vis as in terminating interconnection agreements leading to the disconnection of either parties and their subscribers. In coming years, the NCC might also be required to enact new guidelines to cover these two crucial aspect of the telecommunication sector pursuant to its powers in section 97 of the NCA 2003 to match up the possible changes or novel circumstances not provided for under previous guidelines. The Nigerian Telecommunication sector is a continually evolving sector, so should its laws and guidelines.

Olatunde Olayinka Damilola is a Law student of Adekunle Ajasin University and a researcher/content writer at SAN RESEARCH INSTITUTE. Contact: teeclaziq@gmail.com  +2349060557789 (WhatsApp number).


Foot notes

[1] Hank Intven, Mark Zohar and Jay Howard (2000). Internet Telephony- The Regulatory Issues. Hastings Communication and Entertainment Law Journal, Vol.21, Art.1, P.32.

[2] S. 96-100, NCA 2003.

[3] S. 1-16, NCA 2003.

[4] Para 4., NCC Guidelines on Technical Standard for Interconnectivity of Networks.

[5] S.97(2), NCA 2003.

[6] Ibid.

[7] In its own accord

[8] Para. 8, NCC Guidelines on Technical Standard for Interconnectivity of Networks.

[9] Network service provider involved in International call transmission or Interconnectivity are required for instance to either obtain an International Data Access Gateway License, Full Gateway License or Special IDA permit in the NCC Guideline on International Gateway Access and Voiceover Internet Protocol (VoIP).

[10] s.100 of the NCA 2003. See also Para. 4(8) of the Telecommunication Network and Interconnection Regulation 2007

[11] See the preamble of the NCC Guidelines For The Disconnection of  Telecommunication Operators,  30th November 2012.

[12] Para. 4, NCC Guideline for the Disconnection of Telecommunication Operators, 30th November, 2012.

[13] Para. 13(1)(a), NCC Guideline for Disconnection, 2012.

[14] Para.6, NCC Guideline for Disconnection, 2012.

[15] Para 7(4), NCC Guideline for Disconnection, 2012.

[16] Para. 13, NCC Guideline for Disconnection, 2012.

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