" ITREALMS: Upholding rule of law in 2.3GHz sale

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Wednesday, March 24, 2010

Upholding rule of law in 2.3GHz sale

The last Thursday ruling of Justice Umar Garba over the controversial 2.3GHz licensing was upholding of the government’s stand on rule of law and due process, reports REMMY NWEKE.

Thursday last week was another date in the history of Information and Communications Technology (ICT) sector in Nigeria that stakeholders may not forget in a hurry. This was because of its uniqueness, being the date a Federal High Court in Abuja gave its verdict concerning the controversial cancellation of 2.3 Gega Hertz (GHz) auction by the industry regulator.

Invariably in sequence with the rule of law, which according to Legal dictionary, stipulates “that individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals,” that the presiding judge took his decision, just as was predicted by
ITRealms Online in Wednesday, June 3, 2009.

2.3GHz is prominently defined as Worldwide Interoperability for Microwave Access (WiMAX); a telecommunications technology that provides wireless transmission of data using a variety of transmission modes, from point-to-multipoint links to portable and fully mobile internet access.

Thus, the technology provides up to 10 Mega bit per second (Mbps) broadband speed, without the need for cables. Practically, the technology is based on the IEEE 802.16 standard also called Broadband Wireless Access. While the name ‘WiMAX’ was fashioned by the WiMAX Forum formed in June 2001, to promote conformity and interoperability of the standard, describing the standards as a technology that enables delivery of last mile wireless broadband access as an alternative to cable and digital subscribers line (DSL).

Controversial episode:
It all began like film episodes, the Nigerian Communications Commission (NCC) had invited application for expression of interest in the 2.3 GHz which it offered four licenses only and about 40 applicants responded. As at Friday, May 8, 2009, NCC proclaimed that only three applicants were successful and therefore met with the stipulated guidelines, namely Mobitel Nigeria Ltd, Spectranet Ltd and Multilinks Telkom Ltd.

Announcing the winners a week later, on May 16, then, Head, Public Affairs at NCC, Mr. Reuben Muoka noted that the offer for the licensing of four (4) slots of 20 Mega Hertz (MHz) each in the 2.3 GHz frequency band which opened on April 30, 2009, ended at the close of banking business hours on Friday, May 8, 2009 for the winners to emerge.

He elucidated that three companies, out of 41 applicants short-listed for the exercise, paid the fixed price of N1, 368,000,000 (One Billion, Three Hundred and Sixty Eight Million Naira only) each for the slots on offer, thus bringing the total sum realized from the spectrum sale to N4,104,000,000 ( Four Billion, One Hundred and Four Thousand Naira Only).

According to him, one of the applicants, Galaxy Wireless Ltd, did not pay the full fixed price for what was supposed to be fourth slot, therefore, was unsuccessful in its bid to get the license.

While urging these winners to put machineries in motion to ensure quick deployment of high quality networks that will guarantee good quality and affordable services to subscribers nationwide.

Soon after, controversies upon controversies trailed the exercise with a purported petition which allegedly paved the way for the cancellation by the former minister of Information and Communications, Prof. Dora Akunyili, precisely as announced on May 22, 2009.

Against Aondokaa’s unusual advice:
Of course, the hullabaloo got the attention of President Umar Yar’Adua after a long time of uncertainty brewed by his ill-health, with a directive that the attorney general of the federation and Minister of Justice, Mike Aondokaa, should scrutinize the processes and revert. Eventually against all odds, Aondokaa advised against the cancelation, which ITRealms Online gathered was premised on elementary commerce theory that a product was offered for sale and was duly paid for within the specified time frame, thus following due process and should be upheld. But against this background, President Yar’Adua ordered the resale of 2.3GHz afresh.

And by May 25, one of the winners and returnee telecom operator, Mobitel had insisted that all processes were met, especially by the firm and could not see why the sale was revoked; hence, it went to court, dragging the Federal Minister cum Ministry of Information and Attorney General of the Federation as well as NCC alongside as respondents.

The verdict of the court presided over by Justice Umar Garba of Federal High Court Abuja, on the purported cancellation of the 2.3GHZ sale, was delivered on Thursday, March 18, 2010, about 10 months after the sale was concluded, declaring that the Ministry of Information and Communications or the person in-charge of that office, does not have the powers to cancel the auction in the first place. Ordering in the course that all the relief sought by the plaintiff be granted, and directed NCC to release for the applicant (Mobitel) the 2.3GHz license.

The judgment:
While delivering his judgment, in the suit filed by Mobitel Nigeria Limited, against the aforementioned four defendants, Justice Umar Garba of Federal High Court Abuja, on the purported cancellation of the 2.3GHZ sale, upheld the auction. He also held in the suit number FHC/ABJ/M/312/2009, that the respondent’s objections have no merit and it must fail, even as the objections of the first and second defendants have no merit and were dismissed.

A copy of the judgment made available to ITRealms Online, Justice Garba, noted that having seen all the preliminary objections, that he considered the sustentative application of the matter before his court, mostly in “Pursuant to leave granted to the applicant by this court on the 27th of May 2009 to apply for an order for a judicial review, the applicant filed an originating motion on the 1st of June 2009 and same was supported by a written address. The first second and third respondents filed written addresses. The third respondent initially appeared at the proceedings and subsequently disappeared. I hereby treat all processes filed by the third respondent as being abandoned and I do hold,” he said.

Additionally, Garba said that in taking his judgment, he had considered “Whether it is within the powers of the first and second respondents to cancel an auction conducted by the 4th respondent for the issuance of license in the communications sector.

“The applicant’s case as taken clearly from the facts in the statements and supporting affidavits is that the applicant participated in the auction of the 2.3GHz spectrum licensing by the fourth respondent (NCC) and met all the criteria as advertised, awaiting the issuance of the license to operate.

Court as arbiter:
When the first and second respondent issued a letter on the 25th of May 2009 ‘ Exhibit NCC’ and Exhibit ‘N’, the applicant (Mobitel) ran to the court for judicial interpretation of the Nigerian Communications Act 2003, which is the law providing for the allocation of frequency.

According to him, the law conferred on NCC, the sole and exclusive powers to manage and administer the frequency spectrum for the communications sector to its end users by grants of license for the use of the said frequencies, buttressing his point with reference to Section 121, (1) & (2) of the Act which provides that “Notwithstanding the provisions of any other written law or subject to the provision of this Act, the Commission shall have the sole and exclusive power to manage and administer the frequency spectrum for the communications sector and in that regard to grant licenses for and to regulate the use of the said frequency spectrum.”

In addition, Justice Garba quoted Section 121, (2) thus, “The Power of the Minister under the Wireless Telegraphy Act as far as they relate to the Communications are hereby vested in the Commission.” Underlining the fact that by the provisions of this Act, the Commission is independent of any interference in the performance of its statutory duties, pointing out that the purpose has been to insulate the Commission in the performance of this crucial and a highly sensitive function of regulating the Communications sector.

Minister has no power to cancel sale:
Stressing that the end user, is for the purpose of the function of the Commission, the operators in the communications sector, Garba pointed out that from the foregoing, he upheld the Act’s conferment of ‘NO power’ in the first respondent (Minister of Communications) to impose any directive or instruction on the Commission, or any of its officers or intervene in the performance of the Commissions functions.

“It is clear that the express intentions of the Act regarding the role of the first respondent is to limit its powers to only board matters on policy and issues that affect treaties in view of section 23 of the Nigerian Communications Act,” he declared, calling attention to Section 25, sub-section 2, which further imposes on the Minister of Communications the statutory obligation of ensuring the sanctity of the independence guaranteed to the Commission by the Act.

So, “The first respondent’s (Minister of Communications) purported cancellation of the Auction is absolutory and totally arbitrary as it relates to Section 123 of the Nigerian Communication Act 2003, which provides that ‘the Commission may make regulations in any matter under this chapter. Section 123 (2), the regulation may include procedure for assignment of spectrum such as but not limited to the following a) Auctions; b) Tender; c) Fixed price to be determined by the Commission,” he said.

The above provision gives the Commission the exclusive powers regarding the sale of frequency and makes absolutely no mention of the first respondent (Minister of Communications).

Stakeholders commend judgment:

In reaction to the judgment, stakeholders commended the position of Mr. Justice Garba, saying that all this should not have come if Mr. President took the right decision than to support the cancellation of the auction and even by now, the gains of that license should have started emerging.

For the president of Nigeria Internet Group (NIG), Mr. Lanre Ajayi, the judgment was not out of place for any jurist who knows his or her worth, especially in separation of powers.

“It is not unexpected. The Telecoms Act 2003 empowers NCC to adopt a number of options in the sale of frequency spectrum. NCC has acted within its powers in the process adopted in selling 2.3GHz spectrum,” he said.

The Executive Director, Operations, Digital Sense Africa (DSA), Mrs. Nkemdilim Nweke applauded the judgment, saying “It is a positive development and victory for democracy as well as in line with the rule of law,” stressing that it would boost last mile connectivity and a way forward for greater internet penetration and usage.

Chairman of Association of Licensed Telecom Operators of Nigeria (ALTON), Mr. Gbenga Adebayo, that though he was yet to see a copy of the judgment, but based on media reports, it appeared that the learned judge has given a clear interpretation of the Telecommunications Act in the circumstances. He has also thrown more light on the separation of powers and role of Minister of Information and Communications and that of NCC. He noted, “it is in the best interest of the industry stakeholders as contained in the Act.”

Victory for telecom industry:

Chief executive officer, Telecom Answers Associates, Mr. Titi Omo-Ettu, said the victory is for telecommunications industry. He however, blamed Mr. President for his decision on the matter, which was actually a burden for the only burgeoning sector.

“It is victory for the telecommunications industry. President’s decision on that matter was a clear burden for the industry which has tried to establish itself within a comatose national economy. With this, another challenge shall be thrown to existing operators and it may just be a possible stimulant for an improved industry,” he said, stressing when the court issue came up last year that it would go further in strengthening the powers of NCC and its independence at the end of the day, which has just come to pass with the Justice Garba pronouncement.

John St. Claret Ezeani, a telecom lawyer, told ITRealms Online that the way forward is to respect the judgment, although he may not have agreed with the judgment 100 per cent.

Last line:

With the latest judgment of Justice Umar Garba, the onus is now on NCC to present certificates of award to the trio who won in the 2.3GHz licensing option last year, with kudos going to the management of Mobitel for the dogged fight to ensure that democracy takes its course in the revolution of the nation’s telecommunications.
Above all, the judgment would restore confidence for foreign investors to take advantage, and who NCC has over time persistently told that there are more to invest upon in the country, mostly in the ICT sector. So, the time to come and invest is now, after all, the rule of law has taken its root in this sector.

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