Edificio con Refuerzo 3

In the list of consumer interests listed in Table 9 there is an inherent tension between the provision of fair and cost oriented tariffs/charges and affordable communications services (Items 3 and 4). Tariff rate is always a matter of concern for the ordinary consumer hence the Act and the NTP stipulates that tariff rate shall be fair, non-discriminatory and cost oriented.

However, the provisions set out elsewhere in the Act appear to be pitched against both the affordability of communication services, and fair, non-discriminatory, cost-oriented tariff. For example, the Act in sections 108 (4d-e) enjoins the structuring and setting of tariff rates and levels to attract investments into the communications industry and to align with the recommendations of the international organisations of which Nigeria is a member (NCA, 2003).

Structuring and setting tariff rates and levels solely to attract investment, without taking into consideration the impact on the ordinary consumer, or the overall economic situation of the ordinary consumer is not in accord with the spirit of the National Telecommunications Policy (NTP) and definitely not in the best interest of the consumer. As was noted earlier in section (5.2.3) the NTP foresaw that before full-blown competition is achieved, it is appropriate to consider consumers’ interest in regulating prices.

There is no evidence that the Commission has given effect to this provision in order to resolve the tension between affordability and accessibility of telecoms services. Hence, regarding the existing provisions on tariff rate, ordinary consumers have cause for concern; their interest in

175 affordable prices is not assured and they would inevitably be paying high prices, which will adversely affect the accessibility of basic telecoms services particularly for those in the low-income group.

5.4 Mobile Administration: Numerous secondary legislations but not effectively utilised In order to facilitate the realisation of her objectives, the Commission had also enacted a total of thirteen regulations and fourteen guidelines. These secondary legislations include three guidelines and six regulations with direct bearing on the mandate to promote and protect consumer interests.

These are:

Guidelines on consultations, 2007;

Guidelines on dispute resolution, 2004;

Guidelines on advertisements and promotions (Commission in collaboration with the advertisements and promotions’ regulatory agency);

Quality of service regulations, 2012;

Regulations on the registration of telecoms subscribers, 2011;

Regulations on Universal access and Universal service, 2007;

Consumer code of practice regulations, 2007;

Regulations on enforcement processes, 2005; and Regulations for number portability, 2014

.

176 TABLE 10POLICY GUIDELINES AND REGULATION

Total Number Pro-consumer General/Pro-service provider

Policy Guidelines 14 3 11

Regulations 13 6 7

Total 27 9 18

Source: Nigerian Communications Commission website (NCC, n.d.-c)

It is noteworthy that the Consumer code of practice regulations, 2007 (General Code) was enacted in 2007, six years after the liberalisation of the sector. During this period, the ordinary consumer was exposed to the activities of the services providers without any law defining how the services providers should engage with the ordinary consumers and without the support of any consumer body to advocate for the ordinary consumer. The result was that neglecting ordinary mobile consumer interest with impunity became the norm. The late introduction of the General Code has been unable to reverse the trend. This evidence also shows that the Commission was not consumer-focused from inception.

Notwithstanding the merits of these regulations in providing ample instruments to facilitate the regulatory functions, it appears that there are many similar provisions relating to consumer interest in the Act and the various regulations as shown in the Tables, 9 and 10, above. This seems to complicate things as provisions are spread in a large number of documents. In addition, it seems that there is repetition of the same provisions without any elaboration as to how these consumer interests can be conceptualised and actualised. The number of regulations the Commission has put in place for consumer protection does not indicate the efficiency of the administration (Saleth and Dinar, 1999). If these numerous subsidiary legislations are not matched with corresponding effort to put them into effect, they will appear to be empty provisions and licensees will be inclined to disregard them completely and thereby increasing the burden on the enforcement institution.

177 5.4.1 Mobile Administration: Definition of consumer interest is not consistent across the organisation

In mobile administration, the Consumer Affairs Bureau (CAB) is the principal organ for dealing with consumer issues. The Commission has also put in place a five-year operational plan – the Strategic Master Plan 2014-2018 (SMP) – to focus and direct its activities. Hence, the Commission’s procedural definition of consumer interest is more clearly reflected in the provisions of the SMP and the activities of CAB.

In the Strategic Master Plan (SMP), the Commission did not use the term ‘consumer interest’

when referring to factors relating to consumer interest issues but rather employed terms such as ‘consumer needs’ and ‘consumer demand’. Hence in its Strategic theme 1, the Commission states:

“On the demand side, the theme emphasises the Commission’s role in ensuring that the growing and changing needs and demands for communication services by our consumers are met. This entails ensuring availability of a wide range of choices and services to consumers, easy migration for maximum satisfaction, fair and competitive pricing and tariff etc.” (NCCSMP, 2014: 23).

In addition, in the Strategic Theme 2, the Commission stated that its response “to the needs of stakeholders such as consumers” would cover issues such as availability, ease of access and quality of service, protection, enlightenment, education and empowerment (NCCSMP, 2014:24). Hence, under the term ‘needs and demand’ of consumers the following factors relating to consumer interest are visible: Choice, Fair price and tariff, Accessibility, Affordability, Quality, Protection, Information, (education, enlightenment, empowerment).

The Consumer Affairs Bureau has as its mission “the protection of the rights and privileges and interests of telecoms consumers” and states its mandate to include “protecting the consumer against unfair practices in the industry, to inform the consumers and to empower the consumer by educating on the rights and obligations”. The Bureau did not state what the privileges of the consumers are nor did it indicate what constitutes the consumer interest; rather it gave a list of what it termed ‘consumer expectation’ as: access to robust services, acceptable quality of

178 service, affordability, availability of services, transparent tariff regime, redress when wronged and compensation when wrongly billed/loss of service.

It is noticeable that there are discrepancies between the ‘needs and demand’ and the ‘consumer expectations’. For example, information and protection against unfair practices – which are part of the CAB mandate – are not included in the ‘consumer expectations’ but are listed among the

‘needs and demand’ in the SMP while ‘redress’, which featured in the expectations, was not listed in the needs and demands.

Hence, in mobile administration, there is inconsistency in the definition of consumer interest, which is also referred to under various terms such as consumer expectation, consumer privileges, consumer needs and demands. This lack of consistency in terminology also leads to variation in the scope and meaning attached to the concept of consumer interest; hence “the perceived consequences of policies will differ as well” (North, 1990: 101). Consequently, the level of awareness and the degree of importance attached to consumer interest issues would vary across the organisation with adverse effect on the Commission’s mandate to promote and protect the interest of consumers. For example, the Commission’s erroneous definition of consumers’ ‘right to be heard’ has a far-reaching impact on its conceptualisation of consumer representation. This issue is discussed in detail in section 6.4.4 of the next chapter.

The Act in establishing the Commission as an independent regulatory agency determined her organisational structure and made ample provisions of instruments to facilitate the regulatory functions. Hence, it can be concluded that the Commission has adequate administrative provisions and instruments to implement the provision of the Act as it relates to definition and promotion of consumer interest. However, the application of the administrative procedures falls short of achieving their objectives partly due to inconsistences in the procedural definition of the interest of the consumer and as a result, neither the Commission nor the services providers hold the consumer interest at a level consistent with the law.

5.4.2 Prepaid Service: Disclosure of terms and conditions at point of sales is essential The Act is clear in its definition of a consumer: by purchasing a subscription medium (SIM card) a person is deemed to have subscribed to a communications service (refer to Section 5.2.1).

179 However, there are no disclosure guidelines that make it mandatory for the licensee to supply information on the tariff rate, quality level, and the terms and conditions of the pre-paid service to the consumer at the point of sale as is applicable to services contract. The implication is that the vast majority of consumers on the pre-paid platform are left out of the provisions of the General Code Sections 6(2) and 8(3), which stipulates, “a licensee shall provide specific information regarding any compensation, refund or other arrangements, which may apply if contracted quality levels are not met….” (NCC, n.d.-c).

The lack of disclosure guidelines for prepaid services at the point of sales militates against the ordinary consumers’ interest in the availability of information that will enable informed choice and fair redress mechanism. If the non-inclusion of pay-as-you-go consumers in these provisions is rectified, it will go a long way to curb the lack of transparency and subsequent consumer complaints of dissatisfaction that are prevalent in the industry today by enhancing the ordinary consumers’ capacity to make informed choices and seek redress when wronged.

This will also have a significant impact on the market because the pre-paid services are predominant in the telecoms market and over 90% of the ordinary consumers are on the prepaid service platform (NCC.CSS, 2012).