* Mba |
by Tony ICHEKU, Abuja
Ordinarily, the National Broadcasting Commission's (NBC's) sale of a portion of spectrum in the 700mhz band to MTN Nigeria woulld have been swept under the carpet in the era of impunity gone by. But today the transaction is raising some dust as issues bothering on transparency and due process refuses to be glossed over
Director-General of the NBC, Mr. Emeka Mba is however busy rationalising his apparent indiscretion on Nigeria's inability to meet the International Telecommunications Union, ITU's agreement to switch over from analogue television broadcasting to digital broadcasting by June 17, 2015 (the Digital Switchover, DSO).
"When it became obvious government could not spare the money, and in order to avoid missing another deadline, we began to consider other options. Our broadcast frequency, which is to eventually form part of the digital dividend after the DSO, had portions of it lying fallow while our broadcasters are still using part of it. We therefore proposed and got proper permission from government to license part of our spectrumm lying fallow and to use the proceeds to finance thhe DSO.
"...I'm pleased to inform you that we have successfully licensed MTN Nigeria Limited to use part of the 700mhz to provide digital pay TV broadcasting services. We have thus raised N34 billion, slightly less than our budget."
However, Mba fails to remind Nigerians that Nigeria had through the late President Umaru Yar'Adua, in 2008, proactively initiated the process for the completion of the migration by setting up a Presidential Advisory Committee on Transition from Analogue to Digital Broadcasting (PAC) comprising representation from the Federal Ministry of Information and Communication, NBC, Nigeria Communications Commission (NCC) and the print and electronic media agencies amongst others. The PAC was mandated to advise the government on actions relevant to the smooth transition from analogue to digital broadcasting, the quantum of the expected digital dividend spectrum following the migration, and thereafter recommend an appropriate regulatory framework to guide the release of the spectrum for mobile broadband services.
Having thus failed to meet the deadline of June 17, 2015, the NBC DG now appears to tease Nigerians with the new deadline of June 20, 2017. And harping on the need of meeting that new deadline seems set to circumvent the Geneva agreement and the mandate of the PAC, by proceeding to sell a portion of the 700MHz spectrum apparently without following due process.
The NBC DG argues that the sale of the 700MHz spectrum to MTN would fund the acquisition of Set Top Boxes (STB) required in the DSO process, but on a closer look, his justification is flawed on many grounds as the sale in itself, to a large extent, precludes the actualisation of the transfer and reallocation of the spectrum as intended by the ITU.
The main objective of the DSO was to ensure that all analogue TV broadcasters within the 700 MHz spectrum band are migrated to lower spectrum bands i.e. 470 - 694MHz where they can offer digital broadcasting services while the 694 - 790 MHz (700MHz) would be freed up and made available for the provision of mobile broadband services.
It is in view of this fact that Mba deal with MTN is worth another consideration by indepenedent industry stakeholders, as there are grounds to suspect that the NBC DG might have exceeded his brief to hand over this spectrum to MTN without exhausting due process procedures.
Indeed there are reasons to believe that MTN might have illegally acquired this license to either boost its alleged acquisition of VISAFONE, the only Code Division Multiple Access Operator, CDMA in the country, or maintain a competitive edge in the industry
By its enabling legislation, the NBC does not have the authority to issue licenses to telephone carriers. The body mandated to do so is the Nigerian Communications Commision, NCC which speaking on the controversy claims ignorance of the N34 billion deal.
While the NCC and NBC seemingly shares similar regulatory functions they are nonetheless markedly different by statutory standards. Both have overlapping structures in the area of licensing for telecommunications companies. However, they both regulate separate and clearly demarcated sections of the spectrum.
While Mba maintains that “The license issued was for a converged digital broadcasting license based on the existing NFMC protocol for broadcast. The spectrum in question, 700MHz is still a broadcast spectrum. 700MHz spectrum in question does not belong to the Nigeria Communication Commission (NCC), it is and remains within the broadcasting frequency spectrum. Indeed several stations are currently broadcasting on that spectrum in several cities across Nigeria. Cable and UHF stations are on this frequency. The NCC is fully aware of this incontrovertible fact. The NBC enjoys a good working relationship with the NCC and each of us respects each other’s boundaries”.
However, telecommunications experts insists that NBC has no right to sell telecoms spectrum that exclusively belongs to NCC.
Usually, the National Frequency Management Council has the oversight functions in the frequency territory, a fact that was also raised in the implicating document which alleged that NBC did not seek the permission of the said Council before embarking on an unauthorised sale of frequency.
Pertinently, the thin line stakeholders wants all to see is that the NBC DG acted in a hurry to sell the 700MHz spectrum, knowing full well that it ought to release it to the National Frequency Board accoding to the Federal Government White Paper on the DSO, for onward transfer to NCC, who will then auction it to interested Nigerians.
Former Executive Commissioner of the NCC, Dr. Bashir Gwandu spoke to TheLedger on the issue:
TheLedger:
Was the sale of the 700 mhz spectrum in consonance with the
Federal Govt White Paper on Transition From Analogue To Digital Terrestrial
Broadcasting dated April 2012
Gwandu:
Whether or
not that process of sell is in line with any White Paper including the one you
mentioned, which I have not read, it is simply a wrong process. In my opinion,
the sell to MTN was either done out of mischief, or it might be calculated to, not only undermine
the NCC but the government as a whole. The PMB government is about due process
and rule of law. Any sale of public asset for which there is high demand, has
to be carried out competitively in accordance with Law. The 700MHz is a
communication spectrum whether one-way or two way type, no serious Engineer
will tell you otherwise. The Communications Act 2003 in Section 121 gave sole
and exclusive power to the NCC to manage Communications Spectrum,
notwithstanding the provision of any other written law.
TheLedger:
By dealing with MTN, a telecom firm,
is the NBC not usurping the functions of NCC
Gwandu:
The MTN is,
to my knowledge, not authorized to purchase spectrum from any other source
other than from its regulator, the NCC, i.e.
if it is going to use NCC operational License to operate that Spectrum.
As part of licensing process, companies applying are required to demonstrate
through its memart that Telecom is its
Primary business before the License approvals are granted. But, perhaps, MTN is
only trying to curtail its risks/exposure of losing such Spectrum in the future
which in essence will impede its growth. Why I am saying so is that in recent
years the NCC itself has abandoned due process in selling of Spectrum that is
in High demand. Recently we heard that Glo was trying to use its contacts to
get a portion of the same Spectrum on 2-year trial which in itself is strange.
MTN perhaps does not want to wait until the NCC sells such 700MHz spectrum improperly to another operator that has
associates in Jonathan’s government. Either way two wrongs do not make a right.
Due process guided by law must be observed in the conduct of both the NBC and
the NCC. Importantly the government cannot afford to wait any longer for these
breaches that are evidently calculated to undermine the country to be
sustained. For confidence to be restored government, in my humble opinion,
should take steps to correct all the wrongs in the sale of not only the 700MHz,
but also 800MHz, 900MHz, 2.0-2.6GHz and there are many such sales that are plainly fraudulent.
TheLedger:
NBC DG, Mr Emeka Mba claims he has
authorisation to seal the deal, but was full process followed ie - Auctioning -
bidding - shortlisting etc?
Gwandu:
If, Mr Mba
has authorization to seal such deals, it is either that he did not explain the
full implications, or that there was some form of collusion with Jonathan’s
people. Otherwise, it simply cannot be explained. I don’t see who PMB
government will approve such deals if full facts are presented.
TheLedger:
Was the value at N34 billion appropriately valued?
Gwandu:
From this
NBC Press statement you are showing me the amount of Spectrum involved is not obvious. It could range from
5 to 30 MHz duplex plus 25MHz Duplex Gap. Either way, only competitive bid
process will determine the appropriate market value. The Communications Act
2003 and Procurement Act 2007 have both made clear provisions that assets in
high demand should be sold through Competitive process. It is clear that there
was no competition whatsoever and surely the PMB we know will not accept clear
violations of the law
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