‘This is an adapted version of the book review by the same author, Dr Peter Chukwuma Obutte, published under a Creative Commons Attribution 4.0 International (CC BY 4.0) license in Issue 23 (June, 2019) of The African Journal of Information and Communication (AJIC), 23, 1-5. https://doi.org/10.17159/2077-7213/2019/n23a6′.
Uchenna Jerome Orji’s new book takes on the Herculean task of discussing and analysing the full range of laws, regulations and policies that govern the Nigerian telecommunications industry. Developed as an expansion of his PhD thesis titled: A Critical Review of the Legal Regime for Telecommunications in Nigeria (2017), the volume contains eleven chapters and a Preface, preceded by a Foreword written by Prof.Umar Garba Danbatta, CEO of the country’s telecommunications regulator, the Nigerian Communications Commission (NCC).
Chapter 1 provides an introduction to telecommunications and its regulation. Orji traces the early history of telecommunications regulation in the United States and the United Kingdom, and the general principles that governed the early regulation of the industry in those countries. He discusses ex ante and ex post regulatory approaches, and common regulatory institutional designs, highlighting both advantages and disadvantages of various approaches and designs. This first chapter also outlines elements required to ensure a regulator’s independence, and discuses telecommunications as a field of law. This chapter thus provides the reader with a background on telecommunications and its regulation.
In Chapter 2, Orji presents an overview of the Nigerian telecommunications industry, covering both historical and contemporary elements. The historical account is divided into four periods:
- the British colonial era, 1886-1960
- and early post-colonial years, 1960-1985
- the onset of commercialisation and liberalisation, 1985-1999
- the full liberalisation of the market, 1999-2017.
This chapter provides a detailed and interesting narrative as the historical development of the industry is placed in well-defined timelines. This helps the reader to follow through on the policy and regulatory developments that took place in the industry. A key element of this chapter is its discussion of the protracted process of privatising the state-owned Nigerian Telecommunications Limited (NITEL), between 2001 and 2014, before the eventual acquisition of its assets by the NATCOM Consortium in 2015 and its formal liquidation by the Nigerian government. In the discussion, Orji links excessive government interference in NITEL’s privatisation process to the eventual depreciation of NITEL’s original commercial value from over 1 billion USD to 252 million USD when it was acquired by the NATCOM.
In Chapter 3, Orji examines legal and policy frameworks that govern the Nigerian telecommunications industry. He discusses the legal basis for the industry’s regulation under the Constitution of the Federal Republic of Nigeria (1999) and then carefully analyses several frameworks including the Wireless Telegraphy Act (1998), the National Policy on Telecommunications (2000), the National Policy for Information Technology (2001), the National Space Policy (2001), the Nigerian Communications Act (2003), the National Information Technology Development Agency Act (2007), the draft National Information and Communication Technology Policy (2012), the Commercial Frequency Management Policy (2013), and the National Broadband Plan 2013-2018, (2013). He also discusses the key policy and regulatory institutions including the industry regulator – NCC, the Federal Ministry of Communication, and the National Frequency Management Council. Orji analyses the NCC’s regulatory mandate and powers, and the mechanisms for holding the NCC accountable such as executive supervision, legislative oversight, and judicial review. He argues that judicial review provides the best means of holding the NCC accountable, due to the limitations of executive supervision and legislative oversight mechanisms. Orji also points to the need to reform the absolute powers of the President of the Federal Republic of Nigeria to remove a Commissioner of the NCC to include provisions for checks and balances by the legislature or judiciary, so as to guarantee the political independence of the NCC’s governing board to act in the best interests of the public and the industry. In reviewing the powers of the Minister of Communications Technology in the telecommunications industry, Orji uses the 2010 case of Mobitel Ltd v. The Minister of Information and Communication to highlight limits of the Minister’s powers over the direction of the NCC, pointing to how these limitations promote the NCC’s regulatory independence in line with international best practice as mandated by the World Trade Organisation (WTO) Telecommunications Reference Paper (WTO, 1996).
In Chapter 4, Orji examines the licensing regime, as provided for under the Nigerian Communications Act (2003), which establishes the following types of licences: x the individual license, the class license and spectrum assignment licenses, such as the short term permits, the medium-term permits and the long term renewable permits. The objectives of licensing, the duties of licensees and the legal effect of revoking or suspending a license are analyzed. He also discusses the application of the ‘use or lose’ principle in the management of Nigeria’s spectrum resources.
Chapter 5 examines the regulation of telecommunications network infrastructure deployment, including the discussion of the NCC Guidelines on Technical Specifications for the Installation of Telecommunications Masts and Towers (2009), the National Environmental (Standards for Telecommunications and Broadcast Facilities) Regulations (2011), and the Environmental Impact Assessment (EIA) Act (1992). Orji points to a general duty of care as the core legal principle that governs the installation of telecommunications facilities in an environment. He links this principle with the obligations of operators to comply with environmental standards. Orji also discusses the challenges affecting deployment of telecommunications network infrastructure in the country, including the problem of multiple and conflicting layers of regulation by government authorities such as the existence of conflicting environmental standards set by NCC and the National Environmental Standards Regulations Enforcement Agency (NESREA), multiple regulation of telecommunications infrastructure by urban planning authorities at the state and local government levels, lack of uniformity in the administration of ‘right of way’ permits by authorities at different tiers of government, and the existence of multiple layers of taxation. One of the illustrations he provides of the challenges of multiple taxation is the 2007 case of Registered Trustees of the Association of Licensed Telecoms Operators of Nigeria (ALTON) v. Lagos State Government, in which the plaintiffs successfully challenged the constitutionality of certain provisions of the Lagos State Infrastructure Maintenance Regulatory Agency Act of 2004 on the basis that section 16 of the Law which sought to regulate the installation of telecommunication masts duplicated the regulatory powers of the NCC, and also amounted to an imposition of additional layers of taxation on their operations. Orji proposes several solutions on how the challenges to telecommunications infrastructure installation can be addressed, including: the need for the national harmonization of relevant regulations on the installation of telecommunications infrastructure and the harmonization of applicable industry taxes in a single regime so as to promote uniformity and also increase certainty and transparency in the enforcement of taxes.
Chapter 6 covers the consumer protection regime in the industry. In respect of remedies for poor quality of service, Orji inquires whether consumers must first seek remedies through the NCC’s dispute resolution mechanism before suing for remedies under contract law. He submits that a consumer does not need to first seek remedies through the NCC’s dispute resolution mechanism under sections 73-75 of the Nigerian Communications Act (2003), as a condition precedent before suing for a remedy under the law of contract, or the NCC’s Quality of Service Regulations (2012) or under the Consumer Protection Council Act (1992), “provided that the consumer or the service provider has not earlier sought the intervention of the NCC to resolve the dispute in accordance with section 75(1) of the Nigerian Communications Act (2003)”. He illustrates this position by referencing the decision of the Court of Appeal in the 2017 case of MTN Nigeria Communications Limited v. Godfrey Eneye, where it was held that
“it is clear from the provisions of section 75 of the Nigerian Communications Act (2003) that parties to a dispute arising from the provision and use of communications services and networks are not mandatorily bound to refer their dispute to the NCC, or that the NCC must entertain every such dispute. The parties have a choice of referring their disputes to the NCC or pursuing their resolution by other means. It is only when either or both parties notify and request it to intervene, that it can resolve a dispute…It is only when a party to the dispute has elected to notify the NCC of the dispute, and requested the NCC to resolve it that the dispute resolution process by the NCC prescribed in sections 86, 87 and 88 of the Act shall become operational”.
Orji also highlights the need for improved regulatory measures to protect consumers against unsolicited communications, drawing on examples from jurisdictions such as the United States and the European Union. The chapter highlights the inadequacy of the data protection principles under the NCC’s Consumer Code of Practice Regulations (2007) given that the principles do not specify the rights of consumers during the processing of their personal data, such as the rights to object to processing of their data and the rights to request the rectification or erasure of inaccurate data.
Chapter 7 examines competition regulation in the industry, including measures to address anti-competitive practices, dominance, and the control of mergers and acquisitions. One of the key takeaways from the analysis in the chapter is the apparent overlap between the merger regulation powers of the NCC and those of the Nigerian Securities and Exchange Commission (SEC). Orji makes suggestions on how this regulatory overlap can be addressed in practice, including: the need to streamline the merger regulation mandates of the SEC and NCC through institutional arrangements such as a Memorandum of Understanding, so as to reduce the potential for a future regulatory conflict.
In Chapter 8, Orji looks at the regulation of telecommunications interconnection and network access, including the provisions of the Nigerian Communications Act in respect of the special obligations of dominant operators. A key element in this chapter is its discussion on the regulation of co-location and infrastructure-sharing, both of which can reduce the costs of network deployment and limit unnecessary duplication of network infrastructure.
Chapter 9 examines universal access and service, and situates these concepts within the context of the human rights to freedom of information and freedom of expression under Article 19 of the 1948 United Nations Universal Declaration of Human Rights, and the 1966 International Convention on Civil and Political Rights, and right to ICT access under Article 9 of the 2006 United Nations Convention on the Rights of Persons with Disabilities. The chapter also discusses the recognition of a human right to broadband/internet access in several countries such as Costa Rica, Estonia, Finland, France, Germany, Greece, and Spain. Orji examines the challenges impeding universal access to broadband in Nigeria in including the unharmonized administration of costly right of way permits, long delays in obtaining right of way permits, the high costs of network infrastructure deployment due to intensive civil engineering operations, poor infrastructure sharing, and the vandalization of fiber optic infrastructure. He proposes several solutions, including: the adoption of a ‘dig once’ approach in fiber optic cable deployment and the subsidization network infrastructure deployment in rural and remote geographical areas. The chapter also discusses the legal regime for promoting the telecommunications access of persons with disabilities, while also highlighting the limitations of the regime in terms of the absence of supportive access platforms to customer care centers and the absence of measures to promote access for persons with disabilities. Drawing examples from Australia and the United States, Orji proposes measures such as the application of a universal design approach in designing telecommunications/ICT products and services so as to ensure that persons with disabilities enjoy reasonable access to telecommunications/ICTs.
In Chapter 10, Orji focuses on the environmental protection and public health regime that applies in the industry and analyses issues such as the siting and abandonment of masts and towers and the prevention of environmental pollution from telecommunication facilities. He discusses matters such as interference with property rights, aesthetic harm, and exposure to radiation from electro-magnetic fields (EMF) as some of the environmental and public health concerns in the industry. With respect to EMF exposure, the Orji undertakes an in-depth discussion on the subject and the need for the application of the 1992 United Nations Rio Declaration’s precautionary principle of environmental governance, which requires that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. Given the World Health Organization’s acknowledgement that “with more and more research data available, it has become increasingly unlikely that exposure to electromagnetic fields constitutes a serious health hazard, nevertheless, some uncertainty remains”, Orji, argues for the application of the precautionary approach on the basis of this acknowledgement of the existence of some uncertainty so as to mitigate the perceived public health hazards of EMF radiation from telecommunication facilities.
Using the 2015 case of NESREA v. Helios Towers and the Kaduna Environmental Protection Agency (KEPA), which arose from a state environmental protection authority’s claim of powers to issue Environmental Impact Assessment Certificates for the installation of telecommunications facilities, Orji illustrates the challenges of multiple and conflicting environmental regulations and charges being applied to telecommunication facilities by state environmental protection authorities. He notes that this has been a source of friction between the national environmental regulatory authority, NESREA and state environmental protection authorities, while also increasing regulatory uncertainty and the compliance burden of operators. To address this challenge, Orji recommends measures such as the harmonization of federal and state environmental regulations and standards, and the amendment of the Constitution to grant the federal government exclusive powers to undertake the environmental regulation of telecommunications.
In Chapter 11, Orji discusses the resolution of telecommunication disputes, and highlights the impediments to using judicial review to challenge the regulatory decisions of the NCC, due to the absence of a specified time frame within which the NCC would provide a statement of the reasons for its decision to an aggrieved party. He proposes reforms to the dispute resolution regime under the Nigerian Communications Act, by recommending the specification of a time frame within which the NCC would provide a statement of the reasons for its decision on dispute to an aggrieved party, so as to prevent the delays that could technically impede such party from timely undertaking a judicial review of the NCC’s decision on a dispute.
This book is a truly comprehensive compendium of Nigeria’s telecommunications laws and policies, and it is current, touching on several very recent legal developments and judicial decisions. Moreover, this book is well written, in straightforward language that makes it easy for the reader to follow the author’s thoughts. The book also has a comprehensive table of contents, a rich index, and listings of all the legal cases, statutes, regulations and international instruments covered, all of which add to its value as a reference resource. No other text has undertaken such a robust analysis of Nigeria’s telecommunications laws, therefore, the author’s effort is highly commendable. This book makes a significant contribution in bridging the knowledge gap that exists on telecommunications law and regulation in Nigeria, and it is recommended to students, academics, legal practitioners, regulators, and policy makers who are researching or working in the field of telecommunications law and regulation in Nigeria or in other developing countries. It is hoped that the author will continue to update this highly useful text in future editions.
Reviewer: Dr. Peter Chukwuma Obutte
Senior Lecturer and Head of Department, Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan, Nigeria
 Orji, U. J. (2017). A Critical Review of the Legal Regime for Telecommunications in Nigeria. PhD thesis, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria.
 Mobitel Ltd v. The Minister of Information and Communication & Others  (Unreported) Suit No.
 World Trade Organisation (WTO). (1996). Telecommunications services: Reference paper. Retrieved from https://www.wto.org/english/tratop_e/serv_e/telecom_e/tel23_e.html.
 Registered Trustees of Association of Licensed Telecoms Operators of Nigeria (ALTON) & Others v. Lagos State Government & Others  (Unreported) Suit No. FHC/L/CS/517/06.
 MTN Nigeria Communications Limited v. Godfrey Eneye  (Unreported) Appeal No. CA/A/689/2013, Judgment delivered at the Court of Appeal, Abuja Division (12 May, 2017) at pp.31-32.
 Principle 3, Rio Declaration on Environment and Development, UN Doc.A/CONF.151/5/REV.1, 31, I.L.M. 874 (1992).
 World Health Organization, ‘What are Electromagnetic Fields? – Precautionary Approaches’, (emphasis added). Retrieved from https://www.who.int/peh-emf/about/whatisEMF/en/index5.html.
 NESREA v. Helios Towers and the Kaduna Environmental Protection Agency (KEPA)  (Unreported) Suit CA/K/123/2010.