An Analysis Of The Competition Regime In The Nigerian Telecommunications Industry

lessening competition in any aspect of the Nigerian communications market. Section 91(3) of the NCA, on its part, prohibits licensees from entering into agreements or arrangements which provide for rate fixing, market sharing, or any boycotting of a competitor, supplier or licensee, whilst section 91(4) of the NCA prohibits licensees from requiring any person that acquires communications products or services, to acquire any other product or service, either from the licensee or another person, or directing them not to acquire any other product or service either from the licensee or another person. Lastly, section 92(1) allows the NCC to determine whether a licensee is in a dominant position in any aspect of the Nigerian communications market.

Sections 91(2) and 92(2) of the NCA separately empower the NCC to publish guidelines and regulations which clarify the meaning of “substantial lessening of competition” in the Nigerian communications market and how it shall apply the test of “dominant position” to licensees, respectively. In furtherance of the referenced sections 91(2) and 92(2) of the NCA, the NCC issued the Competition Regulations which, amongst others, outline the standards and procedures which the NCC will apply in determining whether a particular conduct constitutes substantial lessening of competition for the purposes of the NCA, as well as whether a licensee has a dominant position in one or more communications markets.

Highlights of the Competition Regulations

Part II of the Competition Regulations specifies the standards and procedures which the NCC should apply in determining whether, particular conducts constitute substantial lessening of competition. Specifically, Regulation 6 of the Competition Regulations identifies market circumstances and other matters that might be considered by the NCC to include the: (a) definition of the relevant market or markets; (b) impact of the conduct on existing competitors in the identified markets ; (c) impact of the conduct on further market entry; (d) impact of the conduct on consumers, including the availability and pricing of products and services; and (e) degree of interference with competition that results in identifiable injury to competitors or consumers.

Notwithstanding the provision of Regulation 6, it is instructive to note that Regulation 8 of the Competition Regulations contains deeming provisions on certain actions by licensees. Specifically, certain conducts including failing to supply interconnection or other essential facilities to a competing licensee, discriminating in the provision of interconnection or other communications services or facilities to competing licensees, offering a competing licensee more favourable terms or conditions that are not justified by cost differences, if it acquires another service that it does not require, among others; are deemed to result in substantial lessening of competition unless the applicable licensee demonstrates otherwise.

With respect to licensees holding dominant positions in the industry, Part IV of the Competition Regulations specifies the standards and procedures which the NCC will apply in determining whether a licensee has a dominant position in one or more communication markets such that it has the ability to unilaterally restrict output, raise prices, reduce quality or otherwise, act independently of competitors or consumers. As with Regulation 8 dealing with substantial lessening of competition, Regulation 20 of the Competition Regulations provides that any licensee whose gross revenues in a specific communications market exceed forty per cent (40%) of the total gross revenues of all licensees in that market, shall be deemed to be in a dominant position in that market. Regulation 21 also provides that