ATCON’s MEMORANDUM TO THE SENATE COMMITTEE ON ICT AND CYBER SECURITY
A BILL FOR AN ACT TO REPEAL THE NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY ACT NO. 28, 2007 AND ENACT THE NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY ACT TO PROVIDE FOR THE ADMINISTRATION, IMPLEMENTATION AND REGULATION OF INFORMATION TECHNOLOGY SYSTEMS AND PRACTICES AS WELL AS DIGITAL ECONOMY IN NIGERIA AND FOR RELATED MATTERS, 2022
The Telecom and ICT Sector have come a long way in contributing to the growth and development of Nigeria as a nation especially since the liberalization of the sector which occurred over 20 years ago. The then Nigerian professionals and experts configured and structured the sector in a strategic manner that allowed for potential growth.
The Association of Telecommunications Companies of Nigeria (ATCON), formally inaugurated on December 10, 1993, is a professional, non-profit, non-political umbrella organization of telecommunications companies in Nigeria. It is also the premier Association that was formed by technocrats in the telecoms industry to facilitate as well as accelerate the growth and development of the Nigerian Telecommunications Industry and this we have been doing for over two decades.
Our Vision is to facilitate as well as accelerate the growth and development of the Nigerian Telecommunications and ICT Industry through constructive policy advocacies and effective collaboration with all tiers of government and privately-owned telecoms and ICT companies (local and multinationals).
The bill being put forward by the National Information Technology Development Agency (NITDA) will have a very devastating and negative consequence on entire industry in terms of reduced capital importation to the industry, loss of confidence by both local and international investor, unnecessary overlapping and duplication of regulation and objectives which are already captured in the Nigerian Communication ACT 2003.
- Comparison and Similarity of Objectives of NITDA Bill 2002 and Nigerian Communications Act 2003
i. New NITDA Bill 2022 – Objectives
The objective of this Act is to create an effective, impartial, and independent regulatory framework for the development of the Nigerian information technology sector and support the development of the digital economy, which shall include-
(a) promoting and implementing policies and strategies on national information technology and digital economy as may be issued by the Government;
(b) promoting and supporting initiatives that provide access to digital services in an efficient, inclusive, secure, and affordable manner;
(c) encouraging local and foreign investment in the information technology sector through regulatory interventions;
(d) promoting the deployment and use of indigenously produced goods, services, and platforms for the development of the digital economy;
(e) promoting the use of innovative digital service, system, practice, and emerging technology, in Nigeria;
(f) promoting indigenous research and development in information technology and digital economy;
(g) protecting the rights and interests of consumers, investors, and service providers in the Nigerian information technology and digital economy;
(h) ensuring digital inclusion for women, persons with special needs, minors, and vulnerable persons; and
(i) promoting and safeguarding national interest, safety and security of citizens and foreigners in the use of information technology and digital services.
ii. Nigerian Communications Act 2003 – Objectives
The primary object of this Act is to create and provide a regulatory
framework for the Nigerian communications industry and all matters related thereto and for that purpose and without detracting from the generality of the
foregoing, specifically to—
(a) promote the implementation of the national communications or, telecommunications policy as may from time to time be modified and amended;
(b) establish a regulatory framework for the Nigerian communications industry and for this purpose to create an effective, impartial and independent regulatory authority;
(c) promote the, provision of modem, universal, efficient, reliable, affordable and easily accessible communications services and the widest range thereof throughout Nigeria;
(d) encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends;
(e) ensure fair competition ill all sectors of the Nigerian communications industry and also encourage participation of Nigerians in the ownership, control and management of communications companies and organisations;
(f) encourage the development of a communications manufacturing and supply sector within the Nigerian economy and also encourage effective research and development efforts by all communications industry practitioners;
(g) protect the rights and interest of service providers and consumers within Nigeria;
(h) ensure that the needs of the disabled and elderly persons are taken into consideration in the provision of communications services; and
(i) ensure an efficient management including planning, coordination, allocation, assignment, registration, monitoring and use of scarce national resources in the communications sub-sector, including but not limited to frequency spectrum, numbers and electronic addresses, and also promote and safeguard national interests, safety and security in the use of the said scarce national resources.
iii. Analysis of set objectives of NITDA Bill 2022 and NCA 2003
From the objectives that the new bill submitted by NITDA, we can see that the new NITDA Bill shares a lot of close similarities with what NCC is already doing and we strongly think that this should be allowed to happen because it will portray or give the country wrong perception. To further drive this point home, why is NITDA new bill seeking to have a say in the management of infrastructure a duty which NCC is already doing excellently. 5G is an emerging technology and we all know that NCC is saddled with the responsibility of managing and auctioning its license. Without much ado, we suggest that this new proposed bill should be stepped down and NITDA be advised to harnessed its current Act objectives to remain relevant in the scheme and pursuit of Digital Economy.
- Evaluation of Application
Having gone through NITDA Act of 2007, we found out that the Act did not have provision for Application but in the newly submitted NITDA Bill, NITDA copied the Application clause of Nigerian Communications Act of 2003. This shows that NITDA new bill if passes will create avoidable crisis in the sector and this might lead to unnecessary litigations in the court.
- Examinations of NITDA New Bill 2022 on function and powers vis-à-vis Nigerian Communications Act 2003
There are a lot of overlapping and duplications of functions and power between the proposed bill by NITDA Bill of 2022 and the Nigerian Communications Act 2003. When you look at the following functions under NITDA new bill of 2022 “A,D,E,F,I,K,L,N,P,Q,S,W and Y and listed Powers “A,B,C,E,F,G,H,K,I and N”. We think, having reviewed the proposed Functions and Powers in the NITDA new bill we observed that if those Functions and Powers are approved by this Honourable House, the success which the industry has recorded will not only be eroded but the entire eco-system will be thrown into confusion and crisis and this will lead to a poor performance of the industry in terms of low revenue generation and multiple regulation which will stifle the growth and development of the sector.
- ATCON’s review on Permit and Authorization
We think granting of permit and authorization by NITDA should be limited to information technology as the use of “Operators” is ambiguous hence need for specification. The Digital Economy Sector includes Telecom segment of the industry will also advocate that NITDA specifies the affected segment of the sector to avoid double license and permit from related commission.
- ATCON’s review of the proposed establishment of a digital infrastructure and service provision company in the NITDA‘s Bill of 2022
We strongly think that the establishment of a digital infrastructure and service provision company is not needed as NCC has already licensed Infrastructure companies for the six geopolitical zones in Nigeria but they were not able to take off and deliver services because of lack of funding and inability of government to provide the promised funding to holders of this license which is principally politically hindered.
- ATCON’s review of the proposed third schedule on companies and enterprises to pay levy
The companies and enterprises to pay levy under section 17 (2) (a) of this Act includes –
(a) mobile and fixed telecommunications companies;
(b) information technology companies, gaming companies, and e-commerce companies;
(c) foreign digital platforms targeting the Nigerian market;
(d) pensions managers and pension-related companies;
(e) banks, financial institutions, and fintech companies;
(f) insurance companies; and
(g) such other companies and enterprises as may be determined by regulations from time to time by the Agency.
Following our review of the third schedule stated in the NITDA new bill, it is glaring that the whole essence of NITDA wanting to repeal its current Act is geared towards arrogating powers to itself and making monies that NITDA does not deserve from not only telecommunication companies but the entire strata of the economy which we can foresee and predict that is going to create unnecessary tension and legal tussles in the country.
- Explanatory Memorandum
The NITDA Act 2007 ESTABLISHED THE NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY TO PLAN, DEVELOP AND PROMOTE THE USE OF INFORMATION TECHNOLOGY IN NIGERIA
The Proposed NITDA Bill 2022 seek to REPEAL THE NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY ACT, NO 28, 2007 AND ENACT THE NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY ACT TO ENSURE THE EFFECTIVE ADMINISTRATION, IMPLEMENTATION AND REGULATION OF INFORMATION TECHNOLOGY SYSTEMS AND PRACTICES AS WELL AS DIGITAL ECONOMY IN NIGERIA.
i. It is clear from the aforementioned Sections of the NITDA Act 2007 that the Agency is focused on Information Technology in Nigeria. This focus has worked and they have executed their mandate very well.
ii. The proposed NITDA 2022 Bill changes the focus of the Agency from Information Technology and includes the following:
a. Digital Economy
b. Digital Services
c. Regulation of digital economy and digital services
d. Regulation of the Information Technology, Digital Economy and Digital Services
e. Licensing for Information Technology, Digital Economy and Digital Service Providers
f. Incorporation of a Digital Infrastructure and Service Company.
g. Huge Penalties
h. Increase in the List of companies that will pay the NITDA Levy
iii. The NITDA Act 2007 does not include these provisions.
iv. Digital economy and Digital Services are very broad and are applicable to practically all Sectors of the Nigerian economy that have Specialized Regulators in each Sector, such as Banking, Financial Services, Insurance, Health Care, Commerce, Education, Agriculture, Telecommunications etc.
v. Digital Services are an intrinsic part of the Digital economy.
vi. Digital Services are provided via Telecommunication Networks.
vii. Telecommunication Networks are duly licensed and regulated by the Nigerian Communications Commission (NCC).
viii. NCC as part of its Regulatory functions conducts Type Approval of all Telecom Network Equipment and Devices and issues Type Approval Certificates for same.
ix. NCC also represents Nigeria in key International organizations including the International Telecommunications Union.
ATCON believes any actions that have potentials to kill the telecoms industry should be avoided by all tiers of government in Nigeria as the proposed bill is geared towards setting a very dangerous precedent of imposing NITDA as the sole regulator of the economy.
The proposed NITDA 2022 Bill infringes on the functions of the NCC as stated in the NCA 2003. Two Agencies of Government in the same space will create unnecessary double regulation, double taxation, confusion, discourage Capital investment and negatively impact the Ease of Doing Business Initiative of the Federal Government.
The stable regulator environment in the Telecom Sector in Nigeria has attracted much needed FDI and domestic Investment in the Telecom Sector in Nigeria.
The success of the private sector led Telecom sector is self-evident. NCC has licensed Fiber Network Infrastructure Companies (Infracos) in Nigeria that will provide Redundant Fiber Optic Networks into all the Local Government Areas (LGAs) in Nigeria, forming a truly Nationwide Fiber Backbone. However the Grants promised by the Federal Government to support the huge Capital Investment required to lay Fiber to all LGAs have not been provided by the FG.
Thus the investment into an FG owned company should be appropriately applied to the Private Sector led Infracos.
In view of this and other reasons enumerated above, the Association position is that the proposed bill should be respectfully stepped down forthwith.
Thank you all for this opportunity and please accept our esteemed regards.