Nigeria: Power Tussle Over 2.3GHz Spectrum: Who Blinks First?

The stage appears tension-soaked over who has final say on the nation’s 2.3GHz spectrum allocation, as the Federal Ministry of Information and Communications appears battle ready against any authority that may want to challenge its position.

 

Justice Umar Garba of the Federal High Court Abuja on March 18, 2010 ruled in favour of Mobitel in a case it instituted against the Minister of Information and Communications, as well as the Nigerian Communications Commission (NCC), challenging government cancellation of the 2.3GHz spectrum that was awarded to Mobitel by the NCC in May 2009 through an auction exercise. 

 

Justice Umar Garba, in his judgment penultimate week, upturned the cancellation of the 2.3GHz spectrum licence and ordered the NCC to release the licence to Mobitel without further delay. The court order was diligently carried out by the NCC last week in Abuja . 

 

Worried and unsatisfied with the court judgment, the Ministry, in anger, pulled out of its shell to challenge the court judgment on grounds that the trial judge erred in law. In a statement signed by Alaefule Uche, the Ministry had already filed an appeal through their lawyer, Messers Chris Uche, SAN, insisting that the entire process of the aborted auction exercise was grossly flawed and irregular, contrary to due process and lacking in transparency and contravened the Public Procurement Act 2007. “The judgment was a great shock to the Ministry, more so since the appellant and second respondent had agreed to a fresh auction process in which the first respondent was free to participate,” the statement further said.

 

Reacting to the move by the Ministry, Chief Executive Officer of Mobitel, Mr. Johnson Salako said “we are ready to defend our licence at any level, even to the Supreme Court, because we went through due process and we are focused at deploying our network.” 

 

According to him, the Board of Directors, management and staff of Mobitel were pleased with the recent release and issuance of the 2.3GHz licence to the company by the NCC, and that the company reaffirmed its belief in due process and appreciate that the rule of law guides commercial transactions and regulatory proceedings in Nigeria, especially as Nigeria seeks to attract both domestic and international investments. 

 

Salako, in a statement, further explained that the cancellation of Mobitel’s 2.3GHz licence last year delayed the rollout plans of the company and that “it is pro-business and eager to contribute to the country’s advancement.” The company, he added, was therefore gearing up for a commercial launch of its bouquet of services, which would see Nigerians and residents of Nigeria enjoying the benefits of the most current technology and increased competition in the telecommunications service landscape of Africa’s largest market. 

 

Disturbed by what appears to be power tussle between the Ministry of Information and Communication on one hand and the Abuja Federal High Court on the order, President of Nigeria Internet Group (NIG), Mr. Lanre Ajayi said the current struggle for supremecy over 2.3GHz spectrum would not do the country any good, but would rather slowdown development, especially in the area of WiMAX and internet penetration. 

 

According to Ajayi, the international community for WiMAX deployment had approved three spectrum licences for use among which are 2.3GHz, 2.5GHz and the 3.5GHz spectrum, but maintained that “in Nigeria only the 2.3GHz spectrum is currently available for WiMAX deployment, since 2.5GHz is specifically allotted to broadcasters, while 3.5GHz has been adopted by NICOMSAT for satellite.” He lamented that the only available spectrum for WiMAX deployment was been toyed with, for mere power tussle, thus slowing development in the deployment of WiMAX technology. He maintained that the coming of Glo 1 and Main One submarine cables would largely depend on 2.3GHz spectrum to deploy last-mile connectivity, which he said, was part of the WiMAX deployment. He said Nigerians must fight against the interference of politics in regulatory issues like spectrum allocation.  Ajayi called on the Ministry of Information and Communications to play down on power tussle and allow the court judgment to prevail. 

 

NCC, the telecom industry regulator had in May 2009, auctioned the nations’ 2.3GHz spectrum and awarded it to Mobitel, Spectranet and Multilinks Telkoms. The auction raked in N4.104 billion for government. 

 

But no sooner did NCC announced the winners, than the former Minister of Information and Communication, Dora Akunyili, called for the cancellation, alleging that NCC violated her orders after she had asked NCC to discontinue with the auction exercise. 

 

True to her words, President Umaru Yar ‘Adua ordered the cancellation of the exercise for the sake of national interest and asked the same NCC to re-conduct the auction exercise and make refunds of the earlier monies paid by those who participated in the auction exercise. NCC obeyed the Presidency and promised to visit the exercise again, but Mobitel, who felt the initial exercise was too transparent to be ignored, went to court to seek redress and better interpretation of the law. 

 

Delivering his judgment, Justice Umar Garba upturned the cancellation and ruled in favour of Mobitel. Part of his judgment reads: “I hold therefore that the respondent’s objections have no merit and it must fail. Consequently, all objections of the first and second defendants have no merit and are hereby dismissed. 

 

Having seen all the preliminary objections, I now proceed to consider the sustentative application of the matter before this court. The Nigerian Communications Act 2003 is the law providing for the allocation of frequency. The law conferred on the Nigerian Communications Commission, 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. 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. Consequently, judgment is hereby entered to the applicant and I hereby grant all the relief sought by the applicant in the case. This is the judgment of this court.- All the relief sought by the plaintiff are hereby granted, and to the applicant in this case, the respondent should release for the applicant the 2.3GHz license. 

 

Now that judgment has been given, it is pertinent to note that power play cannot be ruled out, especially in a situation like this when the respondent, which is an authority in its own rights, is loosing out. But one thing that is paramount is the common interest of the nation. Like Ajayi had advised, there is need for the Ministry, NCC, the court and Mobitel to shift ground and consider the interest of Nigeria as foremost. 

 

- March 29, 2010 by Emma Okonji

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Source:  www.independentngonline.com/DailyIndependent/Article.aspx (accessed on 30.03.10)