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REPORT OF THE PUBLIC INQUIRY
ON CONSULTATION GUIDELINES
INTRODUCTION
The
Nigerian Communications Commission [“the Commission”]
pursuant to the powers conferred on it by Sections 3 and
70 of the Nigerian Communications Act, 2003 [“the Act”]
developed and issued the draft Guidelines for
Consultations with the stakeholders and members of the
public.
The draft guidelines was published on the Commission’s
website for comments from operators, stakeholders and
members of the general public.
The notice of the public inquiry was advertised in two
National Daily Newspapers i.e. Thisday Newspaper,
Monday, December 31, 2007 and the Guardian, Thursday
January 3, 2008.
The notice required interested stakeholders and members
of the public to submit their comments and observations
on the draft Guidelines to the Commission before the
close of business on January 24, 2008.
By the close of business on the 24th of January 2008,
the Commission received submissions and comments from:
• CELTEL Nigeria Limited
• MTN Nigeria Communications Limited
THE INQUIRY
The Inquiry took place on the 29th of January 2008 at
the Conference Hall, Nigerian Communications Commission,
Abuja at 11: 00am.
The EVC, Engr. Ernest C. A. Ndukwe, welcomed
stakeholders to the Inquiry and stated that the general
objective of the Guidelines is in line with the
Commission’s function of making and enforcing necessary
Regulations and Guidelines under the Act to give full
force and effect to the provisions of the Act. He also
mentioned that due to the fast growing nature of the
Telecommunications sector in Nigeria, there is the need
to provide the necessary regulatory regime to ensure the
continuous growth and development of all sectors of the
Nigerian economy.
He stressed on the importance of the public inquiry
process as it enables stakeholders to make an input in
the rule making process of the Commission. Participants
were further encouraged to make any comments as maybe
deemed necessary.
The Director of Legal Services, Steven Andzenge analyzed
the draft Guidelines and answered questions raised by
the stakeholders. Stakeholders were assured that
submissions and comments made at the inquiry would be
incorporated into the report of the public inquiry and
published in accordance with the Act.
CONSIDERATION OF COMMENTS
The Commission hereby summarizes all the comments
received and the Commission’s responses. All comments
received were duly considered.
1. Comment
Operator seeks a clear distinction between “guidelines”
and “regulations” and claims that the terms are used
interchangeably by the NCC. The operator also suggested
that “Subject to the NCC’s clarification on the
difference between Guidelines and Regulations, and on
the understanding that Regulations creates binding and
enforceable obligations, and respectfully request that
the Document be made a Regulation rather than a
Guideline.”
Response
The NCC does not use the terms “guideline” and
“regulations” interchangeable but rather specifies if a
document is published as a guideline or regulation.
Section 71(1) of the Nigerian Communications Act, 2003
(“The Act”), provides that in making regulations, NCC
shall hold public enquiries, while section 71(3)
provides that in making guidelines, NCC may hold public
inquiries.
We are of the opinion that the title should remain
“Consultation Guidelines” because this will give parties
flexibility in administration.
2. Comment
Operator suggests that NCC should not have the
discretion to determine what issues should be subjected
to consultation as contained in Paragraph 5(i) and
(iii). The operator further suggests that some
consultations should hold only for the purpose of
enacting subsidiary legislation.
Response
International best practice indicates that a regulator
determines what issue to consult on and when to hold
consultations. Consultations with the industry is in
line with the principle of transparency and
international best practice requirement that regulators
should consult as widely and as frequently and on as
many issues as possible.
3. Comment
Operator is of the opinion that by the provisions of
Section 71(1) of the Act, consultation must be by way of
public inquiries, and that informal consultations are
not covered by the Act.
Response
Section 71(1) and (2) of the Act make it mandatory for
the Commission to conduct an inquiry as a condition for
making “regulations” but section 71(3) gives the
Commission the discretion whether or not to conduct an
inquiry before issuing “guidelines”.
Consequently, consultations that will lead to issuance
of guidelines or general consultations on policy
formulation may not require public inquiry and Section
71 is clear that the Commission may then adopt any
procedure it deems fit.
4. Comment
Operator welcomes the provisions allowing changes to
consultations.
Response
Noted
5. Comment
Operator states that the Draft guidelines do not provide
for timelines and goes further to suggest some
timelines.
Response
Timelines are covered by Paragraphs 11, 12 and 19 of the
Guidelines. They are also flexible enough to be adapted
to the circumstances of each consultation. The 21days
time for response is to ensure consistency with the Act.
6. Comment
Operator complains about the term “internal”
consultation in Paragraph 9.
Response
Noted. The word should be “informal” not “internal”
The correction will be reflected in the Guidelines
accordingly.
7. Comment
Operator asks for clarification on whether the 21 days
required for formal responses are “calendar” days or
“working” days. Operator proposes that they should be
working days and also notes that where public inquiries
are to be held, time cannot be abridged to be shorter
than 21 days.
Response
The Commission had always worked on the basis of
“calendar” days. Except there is a need to prolong
timelines, it should remain as calendar days. The word
“calendar” will be inserted in Paragraph 19 of the
Guidelines. The Commission agrees that where public
inquiries are held, the response time should not be
shorter than 21 days in compliance with the provisions
of the Act.
8. Comment
Operator suggests that every consultation must be
subjected to the outcome of a “pre-consultation” process
in which stakeholders should decide whether or not such
consultation should hold in the first place.
Response
As stated above International best practice indicates
that a regulator determines what issues to consult on
and when to hold consultations. We believe that this
practice serves the industry better.
9. Comment
Operator suggests annual publication of planned
consultations.
Response
Noted. The Commission will try and accommodate this
request subject to the proviso that the Commission can
exercise its discretion to hold consultations on topics
which may not have been included in the annual plan in
urgent situations.
10. Comment
Operator views consultation as “intervention” and asks
NCC to be cautious. Operator also suggests that
consultations should be kept to the minimum and that it
should be based on clearly set objectives and goals in
order to avoid “arbitrary consultation process”.
Response
While consultation could lead to intervention
eventually, consultation is not a regulatory
intervention nor does it connote a regulatory
intervention. Rather it is the internationally
recognized mode for Regulators to feel the pulse of the
public and ensure their views are as much as practicable
considered in the exercise of its regulatory powers.
11. Comment
Operator suggests that reasons be given where NCC
declines a request for consultation.
Response
Noted
12. Comment
Operator holds the view that paragraph 5(iii) should
include a caveat to the effect that NCC “will not
unreasonably reject requests” for consultation to
address key issues arising from multiple complaints.
Response
This provision empowers NCC to hold consultation where
it notes multiple complaints. It cannot therefore
decline consultation that it has initiated.
13. Comment
Operator concedes the right of NCC to review
consultation process and consultation documents in
Paragraph 8 but notes the need for regulatory
transparency and objectivity.
Response
Noted
14. Comment
Operator wants prior notice for abridgement of time in
Paragraph 12.
Response
Noted
15. Comment
Operator requests that consultation documents be issued
for every consultation.
Response
The provisions of paragraphs 13 and 14 already provide
for consultation documents in the case of formal
consultations but in the case of informal consultations,
consultation documents are not issued.
16. Comment
Operator commends NCC & suggests publication of
responses without disclosing identity of the
respondents.
Response
The choice has been left to the Stakeholders. The
stakeholder may choose confidentiality in some
consultations while opting for full disclosure in
others.
Conclusion
The Commission, in its principle of participatory
regulation will align the final regulation with the
findings of the Public Inquiry in order to achieve the
goal of the Commission.
The report of the inquiry is hereby published in
accordance with the provisions of Section 60 of the
Nigerian Communications Act, 2003.
Dated this 14th day of March, 2008.
ENGR. ERNEST C. A. NDUKWE (OFR)
EXECUTIVE VICE-CHAIRMAN/CEO
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