By Oyetola-Muyiwa-Atoyebi,-SAN.
Introduction
Have you ever wondered what makes it possible for calls to successfully pull through from one mobile network to another? Or, what makes a call not connect? Simply put, what allows an MTN subscriber to call a GLO subscriber and vice versa, as well as other mobile networks available? The answers to these questions is what this article seeks to do – by explaining the process of interconnection and disconnection of telecommunication networks in Nigeria as provided by the NCA 2003[1] and the Guidelines on Procedure for Granting Approval to Disconnect Telecommunications Operators 2012.
The Nigerian telecommunication sector has experienced tremendous growth within the last decade, with over 191 million[2] active Nigerian users. It is one of the fastest-growing and most profitable sectors in Nigeria. Without a doubt, these successes influenced the passage of the Nigerian Communication Act 2003 (NCA),[3] its Guidelines, Regulations, and other subsidiary legislation, as well as the establishment of the Nigerian Communication Commission as the regulatory body to ensure best practices and fair competition among its operators and users. This Act has provided for interconnection, which is the relationship that exists between network service providers to enable successful calls and messaging services amongst their subscribers.
One of the ways in which the Nigerian Communication Commission protects the interests of network service provider subscribers is through the enactment of the Guidelines on Procedure for Granting Approval to Disconnect Telecommunications Operators (GPGADLO) 2012, which provides for the disconnection and reconnection of network service providers, amongst others.
What is Interconnection?
According to section 157 of the NCA, interconnection is “the physical and logical linking and connection of communication systems used or operated by the same or different licensees to convey a message to and from the respective systems for the provision of services.” Interconnection is the relationship that exists between network service providers to enable successful calls and messaging services amongst their subscribers.
The NCA has made interconnection compulsory amongst network service providers. Therefore, if a licensed network service provider receives a request for interconnection from another licensee, that network service provider is obligated to interconnect its communications network with the requesting licensee’s network at technically feasible locations in accordance with the principles of transparency, non-discrimination, fair competition, neutrality, universal coverage, access to information, equality of access, and equal terms and conditions[4].
The parties will draft an interconnection agreement according to the terms and conditions agreed upon by both parties in good faith. This agreement must be in writing and must be registered with the Commission within 30 days from the date of its execution, after which the parties will furnish the Commission with any additional information required with respect to the interconnection agreement[5].
However, the Commission may, upon evaluating the terms and conditions of the interconnection agreement, require such parties to revise the agreement if, in the opinion of the Commission, the agreement is inconsistent with the provisions of the NCA, the regulation, the interconnection guidelines, or the integrity of the public network.[6]
Also, the Commission may intervene and make a binding rule as to the interconnection agreement at its instance or the instance of any party to the agreement in the following circumstances:
- If the commission determines that the agreement or any part thereof is inconsistent with the provisions of the NCA or any subsidiary legislation;
- In the event of the failure of parties to reach a consensus on a specific issue or delay in reaching such consensus, or
- If the commission considers it in the public interest to intervene in its instance without an invitation from either or both parties to the agreement.[7]
Notwithstanding the terms and conditions of any interconnection agreement, a party cannot, at any time, under any circumstances, disconnect or discontinue any interconnection with an interconnecting party without the prior consent of the Commission.[8]
Instances Where Interconnection Is Not Possible
Notwithstanding the provision of the NCA making interconnection compulsory, the following instances exist where interconnection will not be possible;
- Where there is no point of interconnection. That is the physical interface between the media gateways of two service providers, carriers, exchanges, or enterprises.[9]
- Where the party requesting interconnection is not an NCA-licensed network service provider.
- If the interconnection would cause harm to the requested party.
Termination of Interconnection (Disconnection)
Upon application by a connected operator, the Commission has the responsibility to grant approval to disconnect operators already connected.[10] The Guidelines on Procedure for Granting Approval to Disconnect Telecommunications Operators (2012) outlines situations in which disconnection of interconnections may be approved, as including:[11]
- The respondent fails to settle its interconnection debt after it has become due.
2. An interconnection agreement has been terminated in accordance with the terms of the agreement.
3. There is a fundamental breach of the interconnection agreement.
4. The respondent is engaged in acts contrary to the terms of its license with regards to interconnection.
5. For any other reason specified by the NCA or any subsidiary legislation.
Notably, before the Commission will approve a disconnection, the party requesting to disconnect must have exhausted all remedial options for resolving the dispute, interconnection rate indebtedness, and billing as provided in the interconnection agreement.[12]
The most common reason for the application for disconnection by a connected operator is the indebtedness of the interconnection rate. This occurs when one party fails to pay the interconnect rate as and when due. Application for disconnection on the grounds of failure or refusal to pay interconnection rate shall be made on the Commission’s Disconnection Form 1, completed in triplicate and forwarded under the cover later to the Commission, while the electronic copy will be filled in and sent via mail to [email protected].[13]
The Commission shall, within 3 working days of receipt of such application, forward the same to the respondent, requiring it to state why a disconnection approval should not be granted within 5 working days.[14] Failure to respond by the defendant shall be taken to mean the defendant has no response and the Commission may make its decision based on the submission of the applicant.[15] At the applicant’s discretion, the defendant may request a three-day extension to respond[16]. If the defendant responds, the Commission shall take the response into consideration in determining whether to grant the approval to disconnect or not.
In determining whether to approve the request to disconnect or not, the Commission shall take into account the following;[17]
1. The applicant has paid the Commission’s regulatory fees in full
2. The applicant had, before the request for disconnection approval, exchanged Call Data Records (CDR) with the respondent on demand.
3. That such a CDR had been reconciled, with both operators agreeing on the outstanding amount.
Furthermore, the debt must have been outstanding for sixty (60) calendar days inclusive of the period agreed by the parties in their interconnection agreement.[18] Also, the previous payment records of the defendant and the applicant and the antecedents of the respondent, likewise, payment of interconnection indebtedness to the interconnecting party, will be considered before the grant of approval to disconnect.[19]
The Commission, at any time before making its decision on a request for approval to disconnect, may opt to invite both parties to a hearing meeting on the application. If a respondent demonstrates demonstrable efforts by paying at least 50% of the debt at such a meeting, the respondent will be required to sign an undertaking on terms acceptable to the applicant. Refusal to sign an undertaking will result in the grant of approval to disconnect the respondent and the decision of the Commission will be communicated to the parties within 15 working days of the conclusion of the hearing meeting.
If the debt or any part of it remains unpaid at the expiration of the date agreed by the parties, the Commission shall publish a notice to the subscribers of the debtor operator informing them that the operator is unable to pay its debt and is likely to be disconnected from the network of the applicant. This notice shall be published in two national newspapers and sent to the subscribers of the debtor through SMS. The subscribers to this network shall be given 10 working days to, make arrangements to mitigate or port from the respondent network to another network.
The above-described notice is called a pre-disconnection notice and it is employed in any circumstance other than the settlement of interconnection indebtedness. However, this notice shall not be published unless a notice of approval of disconnection has been given to the parties and a 3-working-day period has been given to the defendant to settle the indebtedness.
Partial Disconnection
When a decision is made on the application for a grant of disconnection, the Commission reserves the right to authorize the applicant to partially disconnect the Respondent on terms to be decided by the Commission.[20] It is noteworthy that, partial disconnection is limited to the disconnection of only outbound calls from the respondent network to the applicant’s network. For instance, if GLO is indebted to Airtel and there is a subsequent partial disconnection, GLO subscribers, will not be able to reach Airtel subscribers while Airtel subscribers will be able to reach GLO subscribers.
After the grant of partial disconnection, if the Commission is dissatisfied with the remedial efforts made by the respondent, any or all of the following steps by the Commission may ensue;[21]
- Encouraging such operators to connect through a licensed interconnect exchange.
- Turning down requests for regulatory services and assistance on the terms and conditions specified by the Commission.
- Publication in the newspaper of the names of operators with records of indebtedness
- Requesting that an interconnect exchange licensee disconnect the operator
Reconnection
Where an operator has been disconnected on grounds of indebtedness, the interconnection agreement between both parties automatically terminates. Such an operator can only reconnect to the applicant on the execution of a new interconnection agreement between both parties and payment of all outstanding debt.[22] To ensure prompt payment of interconnection fees, the respondent shall be required to provide a bank guarantee to the applicant to ensure prompt payment of interconnection fees.[23]
Conclusion
Most Nigerians depend on telecommunication as their major means of communication and to run their businesses; and at one point or another, they have experienced some sort of network failure. This can be easily traced to an interconnection-related dispute between network service providers.
The procedure for the disconnection of operators, as contained in the Commission’s given Guidelines on the Approval of Disconnection is to protect the interests of network subscribers and operators. From the provisions of the guidelines, it can be seen that the disconnection of a telecommunication operator is the last resort after exhaustion of all remedial options by the Commission and parties in the event of a dispute.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN.
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.
Mr. Atoyebi has expertise in and a vast knowledge of Telecommunications, Media and Technology Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.
Beyond his interests in law, the Learned Silk is an avid golfer, researcher, writer and a tech enthusiast., [email protected]
COUNTRIBUTOR: Joy Ayara
Joy is a member of the Technology Team at Omaplex Law Firm. She holds a commendable legal expertise in ICT law and privacy law.
[1] Section 96 – 100 NCA 2003 CAP 4 LFN 2004
[2]Subscriber Data (ncc.gov.ng) <accessed if the 18th January 2022>
[3] signed into law by Nigeria’s then-president, Chief Olusegun Obasanjo, on July 8, 2003
[4] Section 96 NCA, 2003 CAP 4 LFN 2004
[5] Section 96 NCA 2003 CAP 4 LFN 2004
[6] Section 97NCA 2003 CAP 4 LFN 2004
[7] Section 97 NCA 2003 CAP 4 LFN 2004
[8] Section 100 NCA 2003 CAP 4 LFN 2004
[9]Dialogic ‘Point of Connection’ https://www.dialogic.com/glossary/interconnection-point-poi <accessed on 14th January 2022>
[10] Paragraph 1 GPGADLO 2012
[11] Paragraph 3 (1) GPGADLO 2012
[12] Paragraph 2 (1) (c) GPGADLO 2012
[13] Paragraph 3 (2) GPGADLO 2012
[14] Paragraph 3 (4) GPGADLO 2012
[15] Paragraph 3 (6) GPGADLO 2012
[16] Paragraph 6 (7) GPGADLO 2012
[17] Paragraph 6 (1) GPGADLO 2012
[18]Paragraph 5 (1) GPGADLO 2012
[19] Paragraph 5 (4) GPGADLO 2012
[20] Paragraph 9 (1) GPGADLO 2012
[21] Paragraph 10 (1) GPGADLO 2012
[22] Paragraph 13 (1) GPGADLO 2012
[23] Paragraph 13 (3) GPGADLO 2012
