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REPORT OF THE PUBLIC INQUIRY
ON TYPE APPROVAL REGULATIONS
AND TYPE APPROVAL 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 Type
Approval Regulations and Type Approval Guidelines with
the stakeholders and members of the public.
The draft regulations and guidelines were 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. This Day 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 Regulations and 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 Commission later received comments from Starcomms
Nigeria Limited after the expiration of the deadline for
the submission of comments.
THE INQUIRY
The Inquiry took place on the 30th of January 2008 at
the Conference Hall, Nigerian Communications Commission,
Abuja at 11: 00am.
The EVC, Engr. Ernest Ndukwe welcomed stakeholders to
the Inquiry and stated that the general objective of the
Regulations and 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, Legal Services, Steven Andzenge analyzed
the draft Regulations and 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 the
comments received were duly considered.
REVIEW OF COMMENTS ON TYPE APPROVAL REGULATIONS AND
GUIDELINES
GENERAL
Operators’ Comment
The considerations behind NCC’s decision to release the
Draft Regulations and Guidelines separately will be
appreciated; as it is considered that a single
consolidated volume would adequately address the issues.
NCC’S RESPONSE
The following are some of the underlying reasons for the
Commission’s decision to have the Type Approval
Regulation and Type Approval Guidelines as two separate
but inter related documents:
• The scope and issues covered by the Regulations and
Guidelines though related are different i.e one is not a
repetition of the other.
• The Commission notes the provisions of Sections 71 &
72 of the Act in respect of the need for holding public
inquiries; while it is mandatory for Regulations, the
need for public inquiries in respect of Guidelines is
subject to the discretion of the Commission.
• In addition to the above the procedure for the
amendment of a regulation is more cumbersome than that
of a guideline. While a Regulation needs to be forwarded
to the Office of the Honourable Attorney General of the
Federation for review and Gazetting, a Guideline is not
subject to that requirement to become valid and
effective.
• The separation of the two is to give the Commission
the desired flexibility and discretion in handling or
ensuring necessary amendments to the Guidelines after
consultation.
Part II of the Regulation
Operators Comment
Whereas the Commission inter alia undertakes to publish
an up-to-date list of laboratories that it shall find
suitable for certifying equipment as meeting its
acceptable specification, the regulation is silent on
the status of the certified equipment from any of the
acknowledgd laboratories and may even prescribe that the
certification should form part of the ground for
exception from type approval under Part 7 Regulation 19.
NCC’S RESPONSE
The Regulation is not silent on the status of the
certified equipment. Regulation 16 obligates the
Commission to maintain the List of approved equipment
type pursuant to the provision of Regulation 5.
Furthermore, Regulation 30 defines Type Approval.
It should be noted that laboratory certification of
equipment is a means to an end and not an end by itself.
The ultimate exercise or result is the type approval of
an equipment.
Regulation 6
Operators’ Comment
In accordance with the requirements of section 4(2) of
the NCA, and the need to assure adequate representation
across equipment categories and technologies, it was
recommended that the publication of eligibility criteria
and other guidelines for convening the Working Group on
Equipment Standards should be done.
It was also, recommended that the Commission should make
a commitment to the use of the knowledge and expertise
of the Working Group in Regulation 8 as opposed to the
discretionary reference implied in the draft provision.
NCC’S RESPONSE
The Commission will at all times continue to carry out
its functions and exercise its powers in accordance with
the provisions of the Act particularly Section 4(2). The
Commission has the over all responsibility for the
success of the industry and will ensure that only
credible persons with the requisite experience and
knowledge of telecommunications issues particularly on
equipment standards are selected and appointed to serve
on the Working Group.
It should however be pointed out that the
recommendations of the Working Group is advisory.
Regulation 7
Operators’ Comment
In order to assure transparency in accordance with
section 4(2) of the NCA, it is considered that
publication of eligibility criteria and guidelines for
approving and designating Test Laboratories will assure
regulatory certainty.
NCC’S RESPONSE
Publishing the list of laboratories should provide
regulatory certainty. The intention is that the
Commission should pro-actively designate laboratories in
an open manner, not wait for Equipment Holders to
propose them.
The Commission, if and when deemed necessary may publish
how the laboratories have been accredited.
Regulation 8
Operators’ Comment
To assure regulatory certainty and administrative due
process, it should be stated in the Regulation that “The
Commission shall from time to time and in accordance to
section 72 of the NCA review and if necessary modify the
Type Approval Guidelines and the Type Approval
Standards.”
NCC’S RESPONSE
The provisions of Regulation 8 and Section 72 of the Act
are very clear on the issue raised above. Section 72(2)
of the Act states that in modifying any Regulation and
Guidelines, the provisions of Section 71 of the Act must
be followed mutatis mutandis. The implication of this is
that where necessary, consultation will be held for the
Guidelines and Standards to be modified, varied or
revoked.
Regulation 11
Operators’ Comment
The requirement to retain supporting documentation 5
years after the last use or supply of equipment will
need to be re-examined for the following reasons viz:
o The Equipment holder may not have been the applicant
for the Type Approval of the Equipment Type and may
therefore not have access to the requisite supporting
documentation.
o The 5 year period of retention does not take due
cognisance of the variety of the Equipment Types being
employed in the industry.
o The pace at which technology evolves and the fact that
Equipment Types of all kinds too often become obsolete
in a short period of time.
NCC’S RESPONSE
The Commission appreciates the point been made. However,
such a requirement is widespread; for example, the EU
Radio and Telecommunications Terminal Equipment
Directive requires retention for ten years after last
manufacture. An Equipment Holder who is not the
manufacturer should be able to get supporting
documentation from the manufacturer. Even though
equipment is rapidly superseded, it still needs to avoid
interfering with more recent equipment for as long as it
is used.
Regulation 14
Operators’ Comment
In line with best practice on the matter, the
requirement of verification of test results and test
documentation by factory visit or other identified
process is considered unnecessary. This is because (i)
Equipment testing and certification will be undertaken
by credible test laboratories designated by the NCC; and
(ii) There is adequate provision under Regulation 23 of
the Draft Regulation for investigation of equipment
should such need arise. It was therefore recommended
that Regulation 14 be amended to make it applicable to
test and certification undertaken by a Laboratory other
than one designated by the NCC.
It should be made clear that the refusal of an
application is without prejudice to rights reserved in
Section 86 of the Nigerian Communications Act 2003 as
has been done in other regulations. Further, provision
should be made for provisional approvals where any
apparent deficiencies can be required to be rectified to
the satisfaction of the Commission in accordance with
international standards. In the interests of clarity and
to avoid any ambiguity, we recommend that the grounds
upon which an already type approved equipment may fall
short of type approval standards be stated.
NCC’S RESPONSE
The recommendation under Paragraph 1 of Operators’
comment on Regulation 14 above is noted and will be
reviewed by the Commission in order to enhance
efficiency in the industry.
In addition, Section 86 applies to any decision by the
Commission, regardless of whether it is specifically
referred to in a regulation or not. Given the simple
approach to most approval applications (reliance on
Declaration of Conformity materials) the Commission sees
no need for “provisional approvals” mechanism. The
Commission posits that the combined effects of the
second paragraph of Regulation 15 (providing reasons for
any refusal), Regulation 17 (revoking Type Approvals)
and Regulation 19 (Equipment Holder’s reliance on
previous type approvals) adequately answer the concerns
expressed on the issue of the grounds on which a type
approved equipment may fall short of type approval
standards.
Regulation 15
Operators Comment
Regulation 15 stipulates the timeline within which the
NCC would advice an applicant of approval or disapproval
of a Type Approval application (within one (1) month of
receiving the application). What would be the
consequence of applications made and to which the
Commission has not responded within the stipulated time
frame or thereafter?
Furthermore, the Regulation should provide that the
Commission shall state the reasons for the delay in
cases where it is unable to decide on the application
one way or the other within the one (1) month period,
for instance, where further tests of factory visit is
required but could not be carried out within the one
month period. For such cases, it was suggested that a
maximum of two (2) weeks period should be provided.
NCC’S RESPONSE
The above comments are noted. The word used by the
relevant part of Regulation 15 is “shall”. This makes it
mandatory for the Commission to advice applicants
appropriately. NCC is a regulatory body that is
proactive and meets timelines specified for carrying out
it regulatory functions. It will therefore comply with
the period stipulated in this Regulation.
Meanwhile, it must be noted that the one month period
specified is on the premise that all that is required
from an applicant has been submitted but where the
requirements have not been met, applicants will be so
advised within the stated time line.
Regulation 16
Operators’ Comment
This Regulation should provide expressly specific
timeline from the date of approval, within which the
Commission shall make publication by way of placement of
the type Approved Equipment in its list maintained
pursuant to Regulation 5.
Further more, the status of pending applications be
recorded, if not published to avoid submission of
applications on the same equipment type by applicants.
NCC’S RESPONSE
The above comments are noted.
Regulation 18
Operators’ Comment
The product in respect of which the revocation or
annulment of Type Approval has been issued should as
well be de-listed on the Type approval list usually
published by the Commission since not all applicants of
Type approval might ordinarily be availed with the
notice of revocation.
NCC’S RESPONSE
This is noted. However, it follows logically that once a
Type Approval is revoked, the relevant entry will be
made in the Type approval list maintained pursuant to
Regulation 5 which provides that “ The Commission shall
maintain and publish an up-to-date list of approved
equipment Types”. It should be noted that the emphasis
here is on the phrase underlined above.
Regulation 19
Operators’ Comment
In accordance to best practice on the mutual recognition
of Type Approvals, an exemption from Type Approval is
obtainable where the equipment conforms to the specified
standards and has been type approved by another
administration. It was recommended that Regulation19 as
drafted be amended by the deletion of the phrase “for an
Equipment Type that has already been approved by the
Commission, the equipment:” while a subsection (2) viz:
“The equipment conforms to standards adopted by the
Commission and the Equipment Holder can provide to the
Commission the evidence of its Type Approval by another
administration” should be added.
NCC’S RESPONSE
This proposal does not seem to offer an adequate
safeguard. Reformulating it to make the safeguard
adequate would lead to a requirement to accredit
administrations as well as test laboratories. The text
of Regulation 19 is therefore deemed adequate as it is.
Regulation 20
Operators’ Comment
For greater clarity, the time-lines indicated in months
in this Regulation should be duly qualified with the
term “calendar”.
Further more, the regulation should incorporate a clear
statement on the rules that will be applicable where the
12 months period issued the specific equipment has
elapsed.
NCC’S RESPONSE
The Interpretation Act 1990 states clearly that “months”
are “calendar months”, so there is no need to change any
of the regulations in this respect.
This is noted but by necessary implication, upon the
expiration of the 12 months period, the exemption
lapses.
Regulation 24
Operators’ Comment
The Regulation appears to be self contradictory; as a
publication of the schedule of fees obviates the need
for any request of same.
NCC’S RESPONSE
The provisions of this Regulation are not contradictory
but complimentary.
Regulations 25 and 26
Operators’ Comment
It is considered that for operators, Type Approval fees
are covered by the Annual Operating Levy (AOL) payable
by the licensee as the function in question is an
integral part of the administrative services rendered by
the NCC. All costs relating to equipment testing and
documentation pursuant to Type Approval shall be borne
by the applicant. The NCC will essentially be taking an
administrative decision in relation to Type Approval
which cost is insignificant. Considering that AOL is a
general charge for regulatory services rendered by the
NCC, it is opined that AOL covers the cost of the
administrative decision by the NCC regarding Type
Approval. Such fees may however apply to other entities
that are not subject to the payment of AOL.
The application of the concept of administrative charges
is commendable and a good example by the Commission.
However, while the emphasis on administrative and
operational expenses incurred is a reasonable measure of
fees due for the provision of type approval services, it
is an issue of concern to Equipment holders that such
costs are not allowed to escalate beyond what is
necessary without good reason.
NCC’S RESPONSE
Principles of non-discrimination suggest that the fees
should be independent of whether or not the Equipment
Holder pays the Annual Operating Levy. The fees for Type
Approval and the Annual Operating Levies are separate
and distinct. The payment of AOL without more, can not
by itself preclude the payment of fees for Type
Approval. The Commission however assures that the fees
will be reasonable in the circumstances.
Regulation 29
Operators’ Comment
For the assurance of regulatory certainty, it is
recommended that Regulation 29 be expanded by appending
the underlined portions as indicated below: “In
considering the application of enforcement measures
under Regulation 30 the Commission may take into account
factors including but not limited to the under-stated
provided these conform to relevant provisions of the NCA:”
NCC’S RESPONSE
Relevant factors to be taken into consideration in
enforcement matters by the Commission will always be in
conformity with the provisions of the Act, the
Enforcement Processes Regulation and any other relevant
subsidiary legislation of the Commission.
Other Issues
Operators’ Comments
It is noted that the obsolescence of a hitherto
Equipment Type may make it unsafe or inoperable. In this
regard, are there grounds for including a term of
validity in the type approval of certain categories of
Equipment Types? Further, are there grounds for
requiring full responsibility to be taken in the safe
disposal of de-commissioned obsolete equipment? If so,
by whom?
NCC’S RESPONSE
The Commission observes that time limits for these
purposes will be embedded in the specific standards to
be applied. Some schemes include the possibility of
having time limits and periodic re-testing.
The question of safe disposal is very important but is
not confined to telecommunications equipment. A general
treatment is required, perhaps along the lines of the EU
Waste Electrical and Electronic Equipment Directive. In
addition, every equipment manufacturer, holder or user
should see to the safe disposal of all equipment under
their custody or control.
TYPE APPROVAL GUIDELINES
Guideline 4
Operators’ Comment
In relation to Guideline 4(f) and (g), the Commission
should provide an acknowledgement of the application not
later than 5 working days from the date of receipt of
the application. The acknowledgement should also certify
the completeness or otherwise of the application. For
greater clarity, Guideline 5(f) should read: “An
application that is complete will normally be processed
within one (1) calendar month of its receipt by the
Commission”
NCC’S RESPONSE
The Commission has a general policy and practice for
acknowledging receipt of documents and this will apply
to applications for type approval as much as to other
documents. Consequently, all type approval applications
will be duly acknowledged as this will be basis on which
relevant time lines could be measured.
Guideline 5
Operators’ Comment
AOL paying entities should be exempt from payment for
Type Approval. Without prejudice to the above,
publication of the initial schedule of fees for the
different types of equipment should be provided along
with this Draft Guideline in accordance to Guideline 5.
This would make for regulatory propriety as it would
allow consultation on same to happen alongside
consultation on the Guideline. Operators therefore
request publication of the initial schedule of fees as
provided in Guideline 5 to this Draft Guideline.
NCC’S RESPONSE
As stated in Guideline 5, an initial schedule of fees
will be provided and the opinion of stakeholders will be
sought.
Conclusion
The Commission has taken note of all submissions and has
carefully considered the view points made further by
stakeholders in this report. The Regulations and
Guidelines will be amended where necessary prior to the
publication.
Dated this 14th day of March, 2008
ENGR. ERNEST C. A. NDUKWE (OFR)
EXECUTIVE VICE-CHAIRMAN/CEO
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