The telecommunications sector in Nigeria is vital for economic growth and innovation, necessitating effective regulatory oversight to ensure a safe competitive market. The Federal Competition and Consumer Protection Commission (FCCPC) is responsible for enforcing competition laws and safeguarding consumer interests across various sectors, including telecommunications. The Nigerian Communications Commission (NCC) specifically regulates the telecommunications industry, oversees operations and compliance with competition rules.
Despite their distinct roles, both agencies overlap in their enforcement against anti-competitive behaviours, and this creates confusion. This article seeks to discuss the shared responsibilities of the two agencies in combating anti-competitive practices.
Regulation of Competitive Practices
Regulators of competitive practices are generally classified into General Regulators and Sectoral Regulators. The general regulators are created to enforce national competition laws while the sectoral regulators have mandates specific to industries. Both regulators strive to ensure consumer welfare. However, they operate under different legislative mandates, which can result in varied outcomes.
The NCC and FCCPC
Anti-competitive practices in the Nigerian telecommunications market are regulated by a general competition law, and sector-specific legislation. In this regard, the Federal Competition and Consumer Protection Act (FCCPA) provides the overall regulatory framework, while the Nigerian Communications Act (NCA) is the sector-specific regulatory regime.
Section 104 of the FCCPA provides that the FCCPA shall override the provisions of any other law in matters relating to competition and consumer protection. Likewise, Section 90 of the NCA also provides for the exclusive authority of the NCC to monitor and enforce compliance with competition laws and regulations in the Nigerian communications market.
A scrutiny of both provisions underscores a potential conflict between the regulatory frameworks in their implementation and applicability. Both laws confer the regulatory bodies with exclusive authority over competition practices. This causes an overlap in the applicability of the laws and poses challenges in the adherence to these laws. As a result, operators may be unclear about which provisions are applicable, potentially leading to non-compliance or conflicting interpretations. Both agencies are established by Acts of the National Assembly, with each having crucial responsibilities in tackling anti-competitive practices. Thus, what is the fate of an operator in the communications sector where the NCC approves a market policy, but the FCCPC considers it anti-competitive?
In view of this jurisdictional conflict between the FCCPC and the NCC, it can be argued that compliance with a regulation may not fully protect operators from competition scrutiny, creating market uncertainty and heightened risk of liability. This conflict can also result in duplicated efforts, inefficient resource use, and an increased likelihood of forum shopping.
Conclusion
Clarifying the roles of the FCCPC and NCC is crucial to ensure effective regulatory oversight in Nigeria’s telecommunications sector. Defining clear jurisdictional boundaries will improve compliance, reduce confusion, and foster a competitive, fair market that benefits consumers and supports industry innovation.
Given the complexity of these overlapping responsibilities, it is important for the Courts to resolve the current jurisdictional ambiguity between the FCCPC and the NCC in the telecommunications sector. Such judicial guidance will not only help create a more cohesive regulatory framework and prevent unnecessary conflicts between the two agencies, but also determine the jurisdiction of the agencies as it relates to the telecommunications sector and ensure proper compliance by stakeholders.
