Looking towards Europe: Regulation of Dominance in Nigerian Telecommunications

Abstract

Nigeria is yet to enact generally applicable competition laws. However, in the telecommunications sector, sector-specific competition rules were enacted with the regulator taking steps including determination of dominance in selected markets to enforce these rules. These developments are important in Nigeria as they could provide good domestic references for future application of both general competition law in Nigeria and sector-specific application of competition rules in other network industries in the country. Furthermore, with regulatory determinations of dominance relatively rare in national communications sectors of African countries, Nigerian regulatory decisions are likely to be of interest to operators and regulators in other countries within the Sub-Saharan Africa region. This article critically analyzes regulation of dominant positions in the Nigerian telecommunications sector. It identifies the relevant legal provisions on dominant positions in Nigerian telecommunications and shows that while the Nigerian Communications Commission's (NCC) approach in this area appears to be influenced by European Union (EU) law, the Nigerian rules have developed and are applied in a way different from the application of comparable EU rules. Furthermore, the article also identifies a need for revision of the applicable regulations to stipulate the basis for market selection and refine criteria for identification of the relevant market for purposes of dominance analysis. The article further identifies specific issues with the NCC's application of criteria for single dominance assessment including; an apparent misapplication of the market shares criterion; very little of the NCC's assessment is backed by available data and supporting evidence; and the entire assessment focused on application of its six criteria to the retail aspects of the mobile markets with the wholesale market is completely ignored. With regards to International Internet Connectivity market, this article argues that NCC's decision to rely only on ex-post regulatory intervention in line with the practice in other jurisdictions failed to appreciate the differences in the legal basis for regulatory action between Nigeria and the EU for instance. The EU has separate provisions for sector-specific ex ante regulation and general ex post competition laws, while Nigeria only has sector-specific prescriptive regulations governing dominant positions. This entails that reliance only on as yet nonexistence ex post basis for regulatory intervention would leave Nigerian service providers without a remedy.