An Exposition Of The Power Of The Nigerian Telecommunications Commission (NCC) Vis-À-Vis The Power Of The Nigerian Environmental Standards Regulatory Agency (NESREA) In The Telecommunications Industry In Nigeria

By Oyetola Muyiwa Atoyebi, SAN

INTRODUCTION:

Telecommunication in Nigeria is regulated by the Nigerian Communications Commission, NCC. However, some other agencies have the power to regulate some specific aspects of telecommunications network infrastructure deployment in their localities. In view of the increasing reliance on mobile phones, internet services, and digital connectivity, it is paramount to ensure that the industry operates within regulatory frameworks that promote efficiency, competition, and environmental sustainability.

It is on this premise that this article will discuss the powers and roles of two key regulatory bodies in Nigeria’s telecommunications industry: the Nigerian Telecommunications Commission (NCC) and the Nigerian Environmental Standards Regulatory Agency (NESREA) in the telecommunication industry.

THE NIGERIAN TELECOMMUNICATIONS COMMISSION (NCC):

The Nigerian Communications Commission (NCC) is the independent National Regulatory Authority for the telecommunications industry in Nigeria. The Commission is responsible for creating an enabling environment for competition among operators in the industry as well as ensuring the provision of qualitative and efficient telecommunications services throughout the country.[1]

Some of the Functions of the NCC include the following:

• The facilitation of investments in and entry into the Nigerian market for the provision and supply of communications services, equipment, and facilities.
• The protection and promotion of the interests of consumers against unfair practices including but not limited to matters relating to tariffs and charges for and the availability and quality of communications services, equipment, and facilities.
• Ensuring that licensees implement and operate at all times the most efficient and accurate billing system.
• The promotion of fair competition in the communications industry and the protection of communications services and facilities providers from misuse of market power or anticompetitive and unfair practices by other service or facilities providers or equipment suppliers.
• Granting and renewing communications licenses whether the licenses themselves provide for renewal by the provisions of this Act and monitoring and enforcing compliance with license terms and conditions by licensees.
• Proposing and effecting amendments to license conditions by the objectives and provisions of this Act.
• Fixing and collecting fees for grant of communications licenses and other regulatory services provided by the Commission.

In furtherance of its power, the NCC Act provided for the establishment of a Commission, the Nigerian Communication Commission, NCC, under Section 3(1) of the NCC Act. The powers of the NCC are stipulated under Section 3 of the NCC Act. Section 70 of the NCC Act empowers the NCC to make publish regulations on matters such as, but not limited to, written authorizations, permits, assignments, and licenses granted or issued under the NCC Act as well as other stipulated functions. Therefore, the NCC develops, through an inclusive process, robust Regulations and Guidelines or subsidiary laws for the telecommunications sector. One such important Regulation is The Guidelines on Technical Specifications for Installation of Masts and Towers, 2009, this Regulation clearly states the guidelines to be adhered to before the construction of a Tower or mast.[2]

THE NIGERIAN ENVIRONMENTAL STANDARDS REGULATORY AGENCY (NESREA):

The Nigerian Environmental Standards Regulatory Agency (NESREA) is an agency under the Federal Ministry of Environment in Nigeria. Established in 2007, NESREA’s primary objective is to ensure environmental sustainability through the enforcement of environmental laws, regulations, and guidelines across various sectors, including the telecommunications industry.

NESREA’s powers extend to monitoring and enforcing compliance with environmental standards, assessing the environmental impact of activities, and promoting sustainable practices within the telecommunications sector. The agency is responsible for issuing Environmental Impact Assessment (EIA) permits to telecommunications operators for the construction and operation of their infrastructure.

NCC AND NESREA’S MINIMUM REQUIREMENTS FOR THE INSTALLATION OF COMMUNICATION MASTS/TOWERS:

Telecommunication masts are ordinarily installed or placed on land or on any structures permanently attached thereto and are therefore subject to the operative land law.[3] The NCC’s Guidelines on Technical Specifications for Installation of Masts and Towers, 2009 provide that new telecoms facilities are permitted in residential areas, according to the Guidelines. It must, however, be at least 25 meters long. All towers above 25 meters in height in residential areas must be erected at a minimum setback of 5 meters from the next demised property, excluding the fence. In addition, prior clearance from the NCC is required before erection.

Furthermore, the 2009 Regulations stipulate that no masts or towers, regardless of their height, shall be erected within 15 Kilometres of any airport, or the proximity of helicopter pads and their approaches without prior approval and permits from the Nigerian Airspace Management Authority, NAMA. Also, under Section 9 (1) (a), the maximum height for a telecommunication tower in commercial and industrial areas shall not exceed 150 meters unless the Commission is satisfied that the increased height:[4]

1. Will not be detrimental to public health, safety, or general welfare.
2. Will not have a negative effect on the
3. Is in conformity with the plan of the particular area and the general plan of the community.
4. Will not impair compliance with any other applicable laws or guidelines.

The Guidelines further provide that where the Commission grants permission to erect towers over 150 meters in height, such towers or mast shall be set back by a minimum of 50 meters from the right-of-way of all controlled access, federal and state roadways designated as freeways, to provide unobstructed flight paths for helicopters. The mast site shall be served by a parking/loading space and any site lying 50 meters or less from a paved road shall be paved while the site that is more than 50 meters from a paved road, hard surfacing of the parking/loading spaces and driveways shall not be required for those portions of the site lying more than 50 meters from any paved road. Failure to comply with this guideline will lead to the removal of the mast by the NCC and the owner of the mast shall be responsible for the cost of removal.[5]

On the other hand, the National Environmental (Standards for Telecommunications and Broadcast Facilities) Regulation of 2011 hereinafter referred to as “2011 Regulations.” was to protect environmental and human health, ensure safety and general welfare and minimize public and private losses due to the activities of the telecommunications and broadcasting industries. It shall be right, therefore, to deduce that the core of NESREA’s function is to ensure environmental compliance.[6]

According to the NESREA’s 2011 Regulations, a minimum of 10 meters setback from the perimeter fence of the nearest residential property, schools, and hospitals is mandatory. Where there is no perimeter wall (fence), a Base Station/Base Transceiver Station, BTS, must be sited at a minimum of twelve (12) meters from the wall of residential/business premises schools, and hospitals to the base of the mast/tower. Such BTS must not be intrusive, by way of excessive height or cluttered structure, design, and arrangement.[7]

Under Rule 9 (4) (a) of the NCC 2009 Guidelines, all abandoned towers that have not been used for a period of 3 years must be removed by the operator (telco or Infraco). This provision is further given teeth and currency under Rule 6 (2) of the NESREA’s 2011 Guidelines providing that any abandoned masts or towers are to be removed by the Environmental Impact Assessment Act and the NESREA Act and the extant regulations made pursuant thereto.

The NESREA regulation also makes provision for the use of power generators and encourages the use of only environmentally friendly power sources, such as solar, hydro, wind, etc. It provides that where fossil fuel generators are used, there should be a minimum setback of 15 meters from the existing surface water body or domestic water source. While generators within the base stations must be sited not less than six (6) meters away from the perimeter wall of the residential area and where there is no wall then it should be 8 meters.

On the other hand, the NCC guidelines 2009 provide that all generators within a BTS must be sited 5 meters away from all demised properties, excluding the fence, and must also be soundproof, supported by down-pads and installed on good shock absorbers to minimize vibrations and must also be placed in such a way that exhaust pipes are not directed towards any demised property. The Guidelines of 2009 also stipulate that all towers sited within residential areas must conform to the 5-meter setback stipulated to mitigate the effect of heat, smoke, and noise pollution arising from generating sets. Also, all telecommunication masts and towers are to have a minimum setback of 10 meters from Local Government roads (trunk C roads), 20 meters from State Government roads (trunk B roads), and 50 meters from Federal Government roads (trunk A roads). However, road accessibility is of the essence due to the various activities that go on within the BTS.

THE SYNERGY BETWEEN THE TWO AGENCIES FOR SUSTAINABLE TELECOMMUNICATIONS:

Having recognized the interplay between the NCC’s regulatory authority and NESREA’s environmental mandate in the telecommunication space, a collaboration between the two agencies is essential to ensure sustainable telecommunications operations in Nigeria. By working together, the NCC and NESREA can develop policies and guidelines that promote the growth of the telecommunications industry while safeguarding the environment.

This collaboration can involve sharing information, coordinating inspections, and jointly addressing issues related to environmental compliance and consumer protection. Through regular consultations and effective cooperation, the NCC and NESREA can harmonize their efforts and create a balanced regulatory framework that fosters innovation, economic growth, and environmental sustainability.

CONCLUSION:

The Nigerian telecommunications industry’s growth and development depend on effective regulation and oversight. While the Nigerian Telecommunications Commission (NCC) focuses on ensuring the provision of quality services, competition, and consumer protection, the Nigerian Environmental Standards Regulatory Agency (NESREA) plays a crucial role in promoting environmental sustainability and enforcing compliance with environmental standards.

Through collaboration and coordination, the NCC and NESREA can harness their respective powers to create a regulatory environment that balances the needs of the telecommunications industry and environmental protection. This partnership will contribute to the growth of the industry while ensuring responsible and sustainable practices in Nigeria’s telecommunications sector.

SNIPPET

Having recognized the interplay between the NCC’s regulatory authority and NESREA’s environmental mandate in the telecommunication space, a collaboration between the two agencies is essential to ensure sustainable telecommunications operations in Nigeria. By working together, the NCC and NESREA can develop policies and guidelines that promote the growth of the telecommunications industry while safeguarding the environment.

KEY TERMS

Telecommunications, NESREA, NCC, Communications Agency, Nigerian communication.

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).

Mr. Atoyebi has expertise in and vast knowledge of Telecommunication Law Practice 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 Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Jamilu Samaila

Jamilu is a member of the Corporate Team at OMAPLEX Law Firm. He also holds commendable legal expertise Telecommunication Law Practice.

He can be reached at jamilu.samaila@omaplex.com.ng

[1] https://siao.ng/all-regulatory-agencies-in-nigeria-and-their-functions/#:~:text=The%20Nigerian%20Communications%20Commission%20< accessed on 22^nd May 2023>

[2] https://www.mondaq.com/nigeria/telecoms-mobile–cable-communications/1033180/regulatory-framework-and-environmental-standards-for-telecommunications-masts-and-towers-in-nigeria< accessed on 22^nd May 2023>

[3]https://www.researchgate.net/publication/256013714_The_Regulator_and_the_Regulated_An_Examination_of_the_Legal_Framework_for_Telecommunication_in_Nigeria< accessed on 22^nd May 2023>

[4] Section 9(1) (a) Guidelines on Technical Specifications for Installation of Masts and Towers, 2009

[5] https://www.mondaq.com/nigeria/telecoms-mobile–cable-communications/1033180/regulatory-framework-and-environmental-standards-for-telecommunications-masts-and-towers-in-nigeria< accessed on 22^nd May 2023>

[6] Ibid

[7] Section 5(4)(1)(b) of Standards for Telecommunications and Broadcast Facilities) Regulation of 2011