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INTRODUCTION
The Licensing Regulations 2019[2] (“the Regulation”) was made by the
Nigerian Communications Commission (“the Commission”) effective from 11th January
2019 pursuant to the powers conferred upon the Commission in sections 33 and 70
of the Nigerian Communications Act[3] (“the Act”) to publish regulations
on licensing processes among others.[4]  Reg.1 of the Regulation
stipulates the objective of the Regulation, which is to provide a regulatory
framework for effective and efficient licensing processes and procedures in the
communications industry for the operation of communications systems, facilities
and services in Nigeria.

The Regulation applies to individual licence, class
licence, frequency licence and other licence category that may be determined
and published by the Commission.[5] According to the Regulation, the
Commission may classify or reclassify communication services under the
categories of licenses identified above, on terms and conditions that may be
deemed necessary in compliance with sections 32, 33, 34, 35 and 36 of the Act.[6] Prior to this Regulation, licensing
in the telecom industry was regulated by the Nigerian Communication Act,
licensing agreement templates, information on licensing process provided by the
NCC, including other related regulations and guidelines on use and deployment
of telecom infrastructure. The key provisions of the new Regulation are
highlighted below.

REVIEW OF THE REGULATION
1.      Licensing Process and
Exemptions
The Regulation stipulates that all
communication services provided in Nigeria must be provided after obtaining a
licence from the Commission.[7] However, the Commission may exempt
communication services or class of persons from holding a licence by issuing
an exemption order to the exempted communication services or
persons.[8] Prior to the issuance of an exemption
order
, the Commission must ensure that the service to be provided by the
exempted service provider will not interfere or cause harm to other service
providers or consumers.[9] Where the communication service will
cause harm to other service providers and consumers, the Commission will not
issue the exemption order.
The Regulation stipulates that a licence
should be granted on non-discriminatory terms.[10] A licence would be said to have
been granted on non-discriminatory terms, if the telecommunications providers
with similar types of networks or services are treated similarly, the licence
does not favour any telecommunications provider or class of telecommunications
providers over others, and the issuance of the licence is likely to enhance
competition in any market.[11] In consonance with the
Communications Act, the Commission is mandated to carry out its functions and
duties and exercise its powers in a non-discriminatory manner.[12] The Commission is also required to
be guided by the principles of transparency, fairness and non-discrimination in
the formulation of licensing procedures, issuance of communications licences
and preparation of licence conditions and terms.[13]
The licence issued by the Commission
authorizes the holder to own, operate a communication network, or provide a
communication service as prescribed in the licences.[14]  Therefore, with a licence
issued by Commission, the licensee can own, operate a communication network, or
provide a communication service, and cannot exercise such rights until it has
obtained a license. The Regulation also prohibits a licensee from operating any
service or facility which is not expressly stated in its licence or for which
the Commission has provided a separate licence or authorization.[15]
The Regulation provides a different sanction
from the one identified in section 31 of the Act by providing that
notwithstanding the provision of section 31 of the Act, any person who provides
a communication service without a valid license shall be liable to an
administrative fine of N5,000,000 for the contravention and N500,000 for each
day that the contravention persists after an order to desist has been issued by
the Commission.[16] Section 31(2) of the Act provides
for fines and or imprisonment as sanctions for operating a communication
facility or providing communication services without obtaining a licence.[17] The Regulation further stipulates
that any person who continues to provide a telecommunications service after the
expiration of a licence term shall be liable to an administrative fine
equivalent to the initial fee for the relevant licence and an additional fine
of N100, 000 for each day that the contravention persists.[18]
2.      Individual Licence
An individual license may be granted through
an auction, tender, fixed price, competitive bid process and any other method
which the Commission may consider as appropriate.[19] The Commission shall process the
application within the time and in the manner stipulated in section 41 of the
Act, (which is within 90 days of receiving an application) and subject to the
other terms in section 41 of the Act. The Commission shall issue an offer
letter
 to the applicant if satisfied with the application, and the
applicant shall pay the licence fee within 30 days of receipt of the
offer letter
.[20] An individual license will not be
issued to an applicant where it holds a controlling interest in another
licence, where the Commission is satisfied that anti-competitive issues may
likely arise if such licence is granted, or where the applicant failed to meet
its obligations under the conditions of another licence.[21] An issued licence will terminate at
the expiration of its duration unless the licensee gives the Commission a
notice of its intention to renew the licence not later than six months before
the expiration of the license term.[22] Therefore, it may still subsist
after the expiration of its duration, if the licensee had given a notice of its
intention to renew the licence not later than six months prior to its
expiration. Where the licensee did not give any notice of intention to renew,
the licence will terminate automatically and licensee will be removed from the
register and will only be re-listed when the licence is renewed.[23]
The Regulation also itemizes the
communication services which are categorized as individual licences as
including: central equipment Identity registry, electronic directory
information services, fixed wireless access, global mobile personal
communications by system, infrastructure sharing and collocation services,
interconnect exchange national carrier,  national long distance licence,
non-commercial closed user services, open access fibre infrastructure  Network
(Infraco), private network links (Regional/National), sales & installations
of terminal equipment, unified access service licence among others. [24]
3.      Class Licence
An application for a class licence shall be
submitted to the Commission with evidence of payment of the requisite fee and
relevant documents and the Commission will decide whether it would accept or
refuse the application within 30-days of receiving the application. The period
for review can be extended by the Commission by an additional period which
should not exceed 30-days.[25] The Regulation also itemizes the
telecom services which are categorized as class licences.[26] The services include payphone,
cybercafé, telecenter, sales and installation of terminal equipment, repairs
and maintenance of telecommunications facilities, cabling, and any other
undertaking that the Commission may determine as a class licence.
4.      Frequency Licence
The Regulation identifies frequency licence
as a category of licence.[27] According to the Regulation, the
Commission may issue a frequency licence by auction, tender, fixed price,
competitive bidding process, administrative process, or any other method which
the Commission at its discretion may adopt.[28] In order to apply for a frequency
licence, the Regulation provides that an application should be submitted to the
Commission in the prescribed application form and accompanied with evidence of
payment of the prescribed application fee and any other required documents.[29] Upon receipt of the application,
the Commission will review the application and inform the applicant of any
further information required to process the application, or process the
application based on the conditions itemized in section 30 of the Regulation
and convey its decision to the applicant within 90 days of receipt of the
application.[30]  The Regulation allows the
Commission to extend the time within which the Commission shall make a decision
on an application, for an additional period not exceeding 30 days.[31] A frequency licence issued by the
Commission subsists for one year unless stated otherwise in the Frequency
Spectrum (Fees and Pricing; etc.) Regulations[32] or the conditions of the frequency
licence.[33] After one year, the license shall
expire automatically unless the licensee gives the Commission notice of its
intention to renew same not later than 3 months prior to the expiration of the
licence.[34] The Regulation also provides that a
licensee shall ensure that the spectrum assigned to it by the Commission is
efficiently utilised as the Commission reserves the right to review the usage
of the spectrum assigned to a licensee.[35] Where the spectrum is
under-utilized or not utilized, the Commission may refuse to renew the licence
at the expiration of term of the frequency licence or impose time-bound obligations
or sanctions on the licensee.[36]
5.      Procedure for
Transfer of Licence and Shares
According to the Regulation, a licensee is required
to obtain an approval from the Commission in order to transfer a license. Where
a licence is transferred without notifying and obtaining the requisite approval
from the Commission, the transfer shall be null and void, and the commission
shall impose appropriate sanctions as provided for in the Enforcement
Regulations.[37] The sanction imposed by the
Nigerian Communications (Enforcement Processes, etc.) Regulations 2019[38] are N10,000,000.00 and a further
N500,000.00 per day calculated from the effective date of the transfer or
assignment as determined by the Commission and payable for as long as the
contravention persists. The Enforcement Regulations also provides that for any
licensee with a turnover less than N1,000,000.000.00 (One Billion Naira) the
commission may impose a lump sum fine not exceeding N2,000,000.00.[39]
The Commission monitors matters that relates
to the performance of all licensed telecoms service providers and publish
annual reports at the end of each financial year. [40]The reports contain compliance monitoring
and enforcement actions carried out by the commission. According to the
commission’s Compliance
Monitoring and Enforcement Report 2019 Q2
,[41] an enforcement action was carried
out against Auto Tracker Nig.Ltd in Lagos on May 16, 2019 for providing
communication services without licence andhe suspect was arrested and handed
over to the Nigeria Security and Civil Defence Corps for interrogation. The
company was directed to immediately regularize and notify the Commission
failing which all numbers in its data base will be deactivated by MTN.
A licensee is required to apply to the
commission in writing where it intends to transfer ownership or control of its
shares in an amount exceeding ten percent of the total share capital of the
licensee, at least 90 days prior to the proposed date of transfer, or such
other period stated in the licence conditions or as may be determined by the
Commission.[42] The Commission will decide either
to refuse or grant an approval for the transfer of the shares upon such
conditions as the Commission may determine.[43] However, the Commission will refuse
the transfer if the acquisition of ownership or control of the licensee is
likely to lead to anti-competition issues in that segment of the
telecommunications market, and where the licensee still proceeds with the
transfer without prior authorization from the Commission, the Commission shall
direct the licensee to reverse the transfer and impose appropriate sanctions as
provided in the Enforcement Regulations.[44]
The Regulation prohibits the licensee from
using its interests in a licence as security, or to encumber or pledge its
interest in a licence without the prior written approval of the Commission.[45] Where a licensee fails to obtain
the approval of the Commission, the Commission may at its discretion revoke the
licence of the licensee or impose a fine not exceeding N10,000,000.[46]
6.      Sanctions
The Commission may suspend or revoke a
licence where there has been a breach of the terms and conditions of the
licence, provisions of the Act or provisions of any Regulations issued by the
Commission.[47] Furthermore, where the Commission
intends to suspend or revoke a licence under the circumstances listed in
section 45 of the Act, the Commission is required to notify the licensee of the
reasons for the intended suspension or revocation, date on which the intended
suspension or revocation will take effect and period within which
representations on the intention may be made.[48]  Also, where the intention to
suspend or revoke is as a result of the breach of terms and conditions,
provision, or limitation in a license, the Regulation requires that the notice
given to the licensee should stipulate that the intention will be withdrawn or
modified if the breach is remedied within 60 days.[49] The Commission shall within the
period of 30 days following the 60 days period confirm, modify or withdraw the
intention to suspend or revoke the licence.[50] If licensee fails to remedy the
breach after the issuance of the notice, the Regulation provides that the
Commission shall suspend the license for a period not exceeding three months
not later than 7 days after the last day for the licensee and where the
licensee fails to remedy the breach during the suspension period, the
Commission shall revoke the licence in accordance with the Act.[51]
CONCLUSION
The Regulation is an offshoot of the
provisions on licensing in the Act and contains further provisions on the
processes and requirements for applying for licences including the terms and
conditions of their use. It also itemizes communication services which fall
under individual and class license and sanctions for breach of the terms in the
Regulation. It clearly identifies frequency licence as a separate category of
licence.[52] The Regulation is essential for
licensees and applicants who require new or additional licences and serves as a
guideline to obtain, use and transfer licences for communication services in
Nigeria. The specific terms and conditions of use for each type of licence are
itemized in the draft model licences which are available on the Commission’s
website.
_______________________________________________________________
For further information on this article and
area of law,
please contact Bisola Scott at
S. P. A. Ajibade & Co., Lagos by
Telephone (+234.1.270.3009; +234.1.460.5091)
Fax (+234 1 4605092)
Mobile (+234.811.389.8102, +234.817.939.0319)
[1] 
    Bisola Scott, Associate Intellectual Property and
Technology Law, SPA Ajibade & Co., Lagos, NIGERIA.
[2]      
Federal Republic of Nigeria Official Gazette, S.I. No 15, pg. B119
-147.
[3]      
C28 Laws of the Federation of Nigeria 2004.
[4]      
Reg. 1, Licensing Regulation 2019, Federal Republic of Nigeria Official
Gazette, Government Notice No. 24, Vol. 106, pg.
B119-147(Regulation).
[5]      
Reg. 2(a)-(d) Regulation.
[6]      
Reg. 3(1) Regulation.
[7]      
Reg. 5(1) Regulation. This provision is also contained in Section 31 of the
Act, which provides that “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.”
[8]      
Reg. 7(1) Regulation.
[9]      
Reg. 7(2) Regulation.
[10]    
Reg. 8(1) Regulation.
[11]    
Reg. 6(2) (a)-(c) Regulation.
[12]    
Section 4(2) of the Act.
[13]    
Section 33 (3) (b) Act.
[14]    
Reg. 9(1) Regulation.
[15]    
Reg. 9(2) Regulation.
[16]    
Reg.13(1) Regulation.
[17]    
It states that ”Any person who acts in breach of sub-section (1) of this
section commits an offence and is liable on conviction to— (a) a fine not less
than the initial fee for the relevant licence ; (b) a fine not exceeding 10
(ten) times the initial fee for the relevant licence ; (c) imprisonment for a
term not exceeding 1 (one) year ; or (d) 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.”
[18]    
Reg.13(2) Regulation.
[19]    
Reg.17(1) of the Regulation.
[20]    
Reg. 17(2) Regulation.
[21]    
Reg.18(1)(a)-(b) Regulation.
[22]    
Reg.21 Regulation.
[23]    
Reg. 22 Regulation.
[24]    
Reg. (1) – (26), Schedule 2 of the Regulation.
[25]    
Reg. 26 (1), (2) and (4) Regulation.
[26]    
Reg. (1) – (7) Schedule 3 to the Regulation.
[27]    
Reg.2(c) Regulation.
[28]    
Reg.29(1) Regulation.
[29]    
Reg.31(2) Regulation.
[30]    
Reg.31(3)(a)-(b) Regulation.
[31]    
Reg.31(4) Regulation.
[32]    
Federal Republic of Nigeria Official Gazette, S.I. No 23, pg. B317
– 325.
[33]    
Section 6, Part B, Second Schedule, S.I. No. 13, p. B83-104. According to
Section 7(1), frequency licence may have different durations as they may be
classified as short-term permit with a tenure of 4 months, medium-term permit
with a tenure of one year, or long-term licence with a tenure of 5, 10 or 15
years. However, any frequency spectrum licence with tenure of one year and
below is classified as a permit. The Frequency Regulation describes a licence
with a tenure of 5, 10 or 15 years as a licence.
[34]    
Ibid.
[35]    
Reg. 40(1) – (2) Regulation.
[36]    
Reg. 40(3)(a)-(b) Regulation.
[37]    
Reg. 41(1)-(2) Regulation.
[38]    
Reg.7, Second Schedule to the Regulation, Official Gazette No. 11 2019 Vol.
106.
[39]    
Ibid.
[40]   
Nigerian Communication Commission, Compliance Monitoring & Enforcement,
available at https://www.ncc.gov.ng/licensing-regulation/legal/enforcement,
accessed on 20th December 2019.
[41]    Ibid.
[42]    
Reg. 42(1) Regulation.
[43]    
Reg. 42(4) Regulation.
[44]    
Reg. 44 (1) – (2) Regulation.
[45]    
Reg. 45(1) Regulation.
[46]    
Reg. 45(2) Regulation.
[47]    
Reg. 51(1) Regulation.
[48]    
Reg. 52(a)-(c) Regulation.
[49]   Reg.
53(a) Regulation.
[50]    
Reg. 53(b) Regulation.
[51]    
Reg. 54(a)–(b) Regulation.
[52]    
Frequency licence is not identified as a category of licence in the Act. The
only categories of licences identified in the Act are individual and class
licence.

Source: SPA Ajibade & Co