An Analysis Of The Competition Regime In The Nigerian Telecommunications Industry

the NCC may determine that two or more licensees, acting jointly or collectively, are in a dominant position, notwithstanding that the licensees have no common ownership, are not parties to any formal agreement or operate in different markets.

Exceptions in relation to matters of National Interest

Section 93(1) of the NCA provides that a licensee may apply to the NCC to authorise any conduct which may be construed to have the purpose or effect of substantially lessening competition in any aspect of the Nigerian communications industry; which authorisation must be obtained before engaging in the conduct. Upon such application, the NCC is conferred with discretion under section 93(2) of the NCA, to authorise the conduct if the NCC is satisfied that the authorisation is in the national interest. Accordingly, a licensee who would otherwise be in breach of the Competition Regulations and the NCA, may apply to the NCC for a prior approval of such anti-competition activities where it can justify same on grounds of national interest and convince the NCC accordingly.

Practical Application of the Competition Regulations

An opportunity to test the provisions of the Competition Regulations presented itself in 2012 when the NCC carried out an assessment of the level of competition in the communications industry. At the end of the said assessment, the NCC issued the Determination of Dominance in Selected Communications Market (“DDSM”) in Nigeria on April 23, 2013.

In terms of the DDSM, the NCC determined that the mobile voice market in Nigeria was not effectively competitive. MTN Nigeria was identified as the “Dominant Operator” as it had about 44% market share of subscribers. The NCC further determined that MTN Nigeria had a wide differential (of about 300%) between on‐net and off‐net calls with the effect of a likely establishment of a calling club for its subscribers. Having regard to the provisions of Regulation 20 of the Competition Regulations, it is difficult to argue with the conclusions of the NCC in relation to the DDSM.

By section 92(4) of the NCA and Regulations 25 and 34 of the Competition Regulations, where the NCC has determined that a licensee is in a dominant position in the industry, the NCC may, among other options, direct such a licensee to cease a conduct in that market which has or may have the effect of substantially lessening competition in any communications market “immediately or at a time specified in the directive”. Accordingly, the NCC resolved, under the DDSM, that the differential between MTN Nigeria’s on–net and off-net retail tariffs be immediately collapsed to bring MTN Nigeria’s tariff for on‐ net calls at par with its tariff for off-net calls. The NCC further resolved that the DDSM was to take effect from May 1, 2013 and remain valid and binding on MTN Nigeria until reviewed by the NCC.

These directions are contained in Paragraph 6.1 (Determination) of the DDSM which provides as follows:

As a result of the determination outlined above, the Commission has resolved that the Dominant Operator in the Mobile Voice market shall be required to adhere to the following obligations: