ALTON’S SUBMISSION AT THE ICT SESSION OF THE NBA BUSINESS GROUP “THE CLASH OF STATUTES – RESOLVING REGULATORY CONFLICTS OVER CRITICAL INFORMATION INFRASTRUCTURE IN NIGERIA – THE NCC/NESREA CASE”
The Association of Licensed Telecoms Operators of Nigeria (ALTON) and its members welcome the opportunity afforded it by the Nigerian Bar Association’s (NBA’s) Section on Business Law at the NBA’s 6th annual Business Law Conference to comment on and discuss the above issue is “the clash of statutes – resolving regulatory conflicts over critical information infrastructure in Nigeria – the NCC/NESREA case”.
Please find ALTON’ comments and makes recommendations below as follows:
That there would not have been a clash of statutes is the National Environmental (Standards for Telecoms and Broadcast Facilities) Regulations 2011, NESREA Act 2007 and the NCC’s the NCC Guidelines on Technical Specifications for the Installation of Telecommunications Masts and Towers if NESREA had adopted a truly consultative stakeholder review process of its Regulations and taken ALTON’s input and suggestions particularly that the provisions of the Regulations be subsumed into the more detailed NCC Guidelines into account.
ALTON therefore reiterates it call on the NCC and NESREA to urgently work on a practicable framework for collaboration.
AGGRAVATION OF MULTIPLE REGULATION FACED BY THE TELECOMS SECTOR
That whilst ALTON recognizes the National Environmental Standards Regulatory and Enforcement Agency (NESREA’s) powers to regulate environmental matters and related issues with respect to all sectors of the economy, that ALTON still respectfully maintains that the National Environmental (Standards for the Telecoms and Broadcast Facilities) Regulations 2011 and the exercise of NESREA’s powers in that regard have resulted in multiple regulation for the industry from both NESREA and the NCC regarding telecoms facilities and thus aggravating multiple regulation and the costs for operators complying with same.
ALTON has included a schedule of ALTON’s comments most of which were earlier submitted when the Regulations was still draft and which comments are reiterated in the schedule on pages 3 to 13 as NESREA failed to take ALTON’s comments into consideration and mainly to buttress the fact that indeed the Regulations largely duplicate the NCC’s Regulations.
ALTON again presents and will go through the schedule of comments on pages 3 to 13 of this submission to illustrate the urgent need to ensure greater collaboration of Regulatory Authorities within a framework that allows sector specific regulators who better understand their sectors drive and enforce sector specific regulations in all areas including environmental issues to promote greater achievements of varied sectors of the economy through the minimization of the high cost of doing business in Nigeria largely exacerbated by the growing incidence of multiple regulation and taxation.
To address the fact that the National Environmental (Standards for Telecommunications and Broadcast Facilities) Regulations 2011 (“the Regulations”) and its enforcement by NESREA serve to aggravate the already complex and financially burdensome multiple regulation of the industry, ALTON recommends the following:
- Establishment of One-Stop Shop (OSS) Permit Model/system managed by the Nigerian Communications Commission on behalf of the industry and other stakeholders.
- Amplification of the Role of Nigerian Communications Commission (NCC) as Statutory Regulator of Nigerian Telecommunications
- Education Campaigns and Capacity Building for MDAs to create an awareness-building/education scheme targeted at the multiplicity of MDAs and heads of same to appreciate the benefits to socio-economic development engendered by the telecoms industry. This is important given that NESREA continues to assert conflicting jurisdiction on this matter, carrying out arbitrary and unjustified closures and demobilisation of such infrastructure despite the NCC’s aggressive enforcement of the NCC’s Regulations on the Installation of Masts, Towers and other Telecom Facilities.
The Honorable Ministers of the Environment and Communications Technology recently took ministerial action to harmonise the activities of NESREA and the NCC on the technical environmental regulation of the telecoms sector. However NESREA has continued to carry on as if it is not subject to either the laws of the Federation or the supervisory authority of the Honourable Minister of the Environment.
NESREA recently also unlawfully sealed the base station sites of our members in Abuja, Enugu, Owerri, Ado Ekiti and Ibadan causing serious network outages and congestion.
- Passage of the Critical National Infrastructure Law to ring fence the telecommunications industry from the influence of various MDAs and delineate the protections to be accorded to telecoms installations and attendant penalties for any infractions in that regard.
ALTON wishes to draw attention to similar legislation enacted to provide protection to the petroleum industry, the Petroleum Production and Distribution (Anti- Sabotage) Act No. 35 of 1975, Volume 13 CAP P12 Laws of the Federation of Nigeria 2004. This Act makes sabotage which involves the obstruction, prevention of the distribution or procurement of petroleum products an offence. It also extends protection to vehicles (defined to include anything adapted for the transportation of petroleum products by land, sea air which by extension includes oil pipelines) involved in the distribution and extends penalties to parties who aid, incites, counsels or procures other person to commit offences specified in this Act. The Act further proposes a primary penalty of up to 21 years for sabotage. By extension, ALTON’s seeks support in achieving similar protection for the communications industry. The USA, UK, Germany, New Zealand, South Africa, UAE, Australia and many EU nations are examples of countries that have implemented CNI protection frameworks. To establish an effective CNI framework, the following actions amongst others re recommended and must be undertaken:
- Dialogue and collaboration between public and private sector to set up a national infrastructure assurance plan
- Assignment of a Federal funding of the national infrastructure assurance plan
- A bespoke approach to meet Nigeria’s local environment in the form of other fiscal incentives which could include or come in form of subsidies, duty waivers for costs/ importation of relevant tools required to back up and protect CNI to ensure effective CNI protection.
- Designation of a Lead Agency for the Protection of telecoms infrastructure such as the Office of the National Security Adviser (ONSA)
- Enactment of a legislative instrument to govern CNI protection and give legislative backing to the developed CNI assurance policy and which will define the rights and responsibilities of all stakeholders. Such legislation will clearly define the specific critical infrastructure which fall within the purview of the protection initiative. It will also define and out rightly prohibit behaviour which constitutes a threat to or unlawful interference with such infrastructure. The legislation will also prescribe sanctions and remedies for any infractions of its provisions.
ALTON is concerned that without CNI legislation similar to the Petroleum Production and Distribution Anti – Sabotage Act, the industry will continue to witness the unwarranted interference with telecoms infrastructure either through the disruptive activities of MDAs to enforce their illegitimate revenue drives or the theft and vandalism of telecoms infrastructure perpetrated by unscrupulous individuals. ALTON believes that CNI legislation (which imposes appropriately stiff penalties (inclusive of significant fines and prison terms) upon perpetrators of unlawful interference with telecoms installations, would lead to an appreciable reduction in the incessant damage to and vandalisation of telecoms infrastructure across Nigeria.
ALTON and its members would be pleased to work with the requisite stakeholders in developing such legislative instruments or amending exiting legislation to include the designation of telecoms infrastructure as CNI.
That the NCC and NESREA in collaboration with the industry urgently work on a practicable framework for collaboration in this regard that mitigates operators’ exposure to multiple regulation on environmental matters and related issues and increased costs of compliance with same.
- 6. NEED TO ABRIDGE TIMELINE FOR SITE SPECIFIC EIA TO A MAXIMUM OF 3 MONTHS
Given the growing QoS issues in the industry, ALTON remains concerned about the time a site specific EIA takes in Nigeria i.e. between 9 to 12 months as opposed to 100 days in Ghana, 120 days in Uganda, 87/40 days in Zambia (for full and limited EIA process).
ALTON reiterates its urgent call in line with its letter to the NCC dated 23rd June 2012 for a one season regional rather than site specific EIA process which we believe will significantly reduce the timeline for conclusion of the certification process from the current 9-12 months to 3 months.
- 7. NESREA TO ENSURE THAT ROUTINE ENVIRONMENTAL MONITORING AND INSPECTION OF ALL TELECOM FACILITIES ARE CONDUCTED AT ITS OWN COST
ALTON does not object to NESREA’s routine environmental monitoring and inspection of all telecom facilities at its own cost and discretion, subject to giving operators prior notice and formal accreditation/authorization of the relevant NESREA personnel. This will ensure that operators are able to make necessary arrangements for the reception of the officials. Again, in this regard we note that the NCC’s monitoring and investigation activities do not have any cost implication on the industry.
ALTON urges NESREA and NCC to consider its comments and recommendations detailed in the schedule below.
ALTON’S RECOMMENDATIONS ON THE AMENDMENT OF THE NESREA REGULATIONS
| Section | Issues | Implications | Recommendations |
| Section 5 states that: Telecommunications masts and towers shall be erected and operated in compliance with the provisions of the Environmental Impact Assessment Act, Cap E12, Laws of the Federation of Nigeria, 2004 in addition to the submission of site specific environmental impact statements to the Agency | The EIA exercise is undertaken in two seasons or a minimum of nine months. This implies that the construction of a site will be completed between 10 to 14 months as against the present timeline of about four weeks. | This delays roll out of planned sites leading to either a protracted delay in the provision of service to un-served areas, or the complete absence of telecommunications service in those areas. It would also negatively impact on Quality of Service delivery. | The industry does not object to the requirement that national telecommunications operations be subject to a global EIA report. Site-specific EIAs are however unnecessary, since all cell sites are part of the same operations which have been approved in initial EIA reports. Further, the structures erected are of the same type and specification duly addressed in the NCC Guidelines on Towers and Masts.Also, an EIA report issued before the building of a site will not of itself assure that the subsequent operation of the site would be environmentally compliant. Thus, an Environmental Management Plan after the fact should ensure any attendant environmental issues highlighted in the global report are duly addressed.
To ensure that NESREA is able to perform its statutory monitoring role, it is recommended that representative sampling of sites be adopted. |
| Section 5 (3) without prejudice to the NCC Guidelines on Technical Specifications for the Installation of Telecommunications Masts and Towers, the NBC’s Code | This provision appropriately recognizes the NCC as the statutory authority regarding the subject matter. | Two regulatory agencies, NCC and NESREA are involved in certifying installation of masts. | There is therefore duplication of approval process on installation with its attendant delays and cost to operators. |
| 5 (e) to comply with all extant natural resources conservation laws, regulations & guidelines with regard to siting of facilities near any protected and ecologically sensitive areas, etc such as National parks, forests and games reserves, wildlife sanctuaries and corridors, biosphere reserves and sensitive wetlands and watersheds.5 (f) shall adopt stealth &/or camouflage designs of mast and towers to reduce their visual impacts | There is no clear indication of the geographical or other areas where camouflage masts should be installed. | This need for further clarity on the areas where operators are required to install camouflage masts. Otherwise this might result in operators incurring huge financial cost and make it impossible for operators to sustain the current tariffs for their services and take telecommunications services out of the reach of most Nigerians. | International best practice advises the installation of camouflage masts in specified reserved areas only. This should continue to be applied by operators at their discretion, subject to the regulatory oversight of the NCC. NESREA should also be entitled to make recommendations in this regard on a case by case basis. |
| Section 5 (4) (b) & (c) provides that all new facilities shall be primarily located in industrial, commercial and business areas, all sites in residential and business areas including within schools and hospitals shall have a minimum of 10 metres setback from the fence and 12 metres where there is no fence.
5 (4)(2) prohibits all new facilities from being intrusive due to excessive height, cluttered structure, design and arrangement without setting any threshold. |
This proposal fails to take into consideration the need to provide service along the lines of demography and the realities with respect to availability of sites within these built up areas. The provision of services in these areas will be greatly affected. The provision also fails to take into account the practical reality that access to emergency assistance and services is and will be to a large extent dependent on the availability of mobile telephony. | This provision should be revised to read where possible operators should …… | |
| Section 6 defines abandoned masts/towers and BTSs as those that have not been in operation for 3 years and provides for their removal in line with the EIA Act 2004 and NESREA Act 2007 etc.
6 (4) provides that the site of any abandoned BTSs, masts/towers shall be restored to its natural state within 6 months of termination of operation or abandonment contradicts 6 (1) above |
The EIA Act merely requires a proponent to develop a decommissioning plan. However, the NCC Guidelines classify abandoned towers as any tower not in use for up to three years and prescribes a process for decommissioning. | The NCC Guidelines fill a lacuna in the EIA Act. The provisions of the NCC Guidelines are also more in tune with current realities and should continue in force. | ALTON had in its comments on the draft Regulations recommended that the more detailed provisions of the NCC Guidelines should continue to apply and that there was no need to include this provision in the NESREA regulation. |
| Section 7 (Environmental Audits & Inspection of Masts/Towers) requires that:(I )All telecom facilities shall be subject to routine environmental monitoring and inspection by the Agency | ALTON does not object to monitoring by NESREA at its own cost and discretion, subject to prior notice being given to operators to and formal accreditation/authorization of the relevant personnel. This will ensure that operators are able to make necessary arrangements for the reception of the officials. In this regard we note that the NCC’s monitoring and investigation activities do not have any cost implication on the industry. |
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The NCC’s Guidelines may be amended to recognize NESREA’s statutory powers to carry out inspections, for the avoidance of doubt. There should be no cost implications on the industry in the course of NESREA’s monitoring and enforcement activities.
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| 8 (1) the radiation levels from All telecommunications/broadcasting BTSs do not transmit EMF waves with potential adverse effect on people and the environment.8 (2) The Regulations provides that the permissible radiation level applicable to staff at sites and the public as that approved for telecommunications/broadcasting facilities by WHO, ICNIRP (the International Commission on Non Ionising Radiation Protection) states
facilities shall be subject to environmental audit once in every three years
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The EIA Certificate obliges the certified operation to be subject to continuous review. The NCC Guidelines should recognize this fact and encourage operators to establish an Environmental Management Plan (EMP) to ensure a self-managed compliance framework. NESREA will of course continue to exercise its statutory power of inspection and monitoring.The NCC’s Guidelines should be amended to reflect the above comments | ||
| Section 8 (Permissible Radiation Level): Radiation exposure level for occupational staff on site & for the general public shall conform to all extant standards, regulations and also with the permissible limits approved for telecom facilities by WHO ICNIRP (the International Commission on Non Ionising Radiation Protection), etc | The provision assumes that BTS sites give off harmful radiation. This is not true, and NESREA should be wary of encouraging sentiments which have been scientifically disproved and which heightens public hysteria on the issue. ALTON nevertheless encourages all operators to adhere to the ICNIRP Guidelines and other applicable international standards. | The NCC Guidelines should affirm compliance with the ICNIRP Guidelines and other applicable international standards.NESREA should be encouraged to align itself with the ICNIRP Guidelines in accordance with international best practices. | |
| Section 9 (Guidelines and Standards for the use of Power GeneratorEnvironmentally friendly power source such as solar, hydro, wind, etc shall be encouraged, Standards and permissible levels for generator setback, noise level, vibration, smoke and all forms of pollution as outlined here-in shall not be exceeded: | While containing laudable objectives which all stakeholders should aspire to, it is necessary to more realistically take cognizance of the operating environmental and the huge costs of implementing such recommendations so as not to impose onerous conditions on telecommunications operators which are not applicable to other users of generating sets in Nigeria. | Sets sector specific regulations with regard to power generation and unfairly singles out the telecom sector for compliance over and above all other industries such as the manufacturing, banking, service, hospitality sectors and other utilities. | The provisions of the NCC Guidelines in this regard should be retained or amended. Any regulations which seek to address power concerns should be holistic and apply to all industries.Where NESREA is seeking generating set compliance, separate power generator guidelines and standards should be set to apply to all users of generators in Nigeria. |
| (2) Power Generating sets shall have a minimum setback of 15 meters from water source | The mischief this provision is setting out to address is not clear. Water sources exist everywhere in view of the ground water table and the flow to any apparent surface water. The extent to which it is sought to prevent any seepage is determined by the permeability and porosity of the ground soil or rock. The proposed setback does not address this issue. | The provision adds no value. | The NCC Guidelines amply specify the nature of foundation required to offset and carry telecom structures and adequately provides for a site foundation that seals off the ground soil or rock from structures such as generators placed on top of such a foundation.This provision should be excluded. |
| (3) (a) Electric power generating sets located within telecommunications base stations must be sited not less than 6 m away from the fence of all residential property and 8 metres from all residential without fences. | In instances where a building was constructed after the installation of the base station and its generating set, it will be inequitable to insist on this prescription.Furthermore, Par. 3(5) of the NCC’s Guidelines makes detailed provisions in this regard. Those provisions should continue to apply.
Also, are operators to be penalised where building standards with respect to demised properties are not adhered to e.g. the required setback of such properties from perimeter fences |
Setbacks are structural issues which should be determined empirically | We recommend that for clarity, the Guidelines should specify that where a building is constructed after the installation of the base station and its generating set, the Operator is expected only to redirect the exhaust of the said generating set from the general direction of the building. Due guidance can also be provided with reference to civil engineering best practices.This provision should be modified as above and included in the NCC Guidelines. |
| (3)(b)All electric power generating sets shall be sound proof, and shall conform to the Agency’s guidelines for permissible noise level; Ref schedule 1 | It should be noted that given the poor state of power supply in Nigeria, cell sites constitute only a small fraction of the sources of generator noise. It would therefore be inequitable to specify a different standard for telecommunications operators. Furthermore, the recommended noise level is considered too low and unrealistic when compared with what obtains in other countries. Generators with such decibels are not readily available in the market. Where such generators are available, the cost is about three times over that of the regular sound proof generators currently being deployed.
See table below for FEPA and NESREA recommended noise levels |
We note that NESREA did not consider ALTON’s recommendation on noise level. Adoption of this recommendation will inordinately increase the cost of service provision and overburden operators. | We still recommend that NESREA should commence a review of the generally applicable recommended noise levels.(a) See tables below for Japan, India and some cities in Pakistan below as recommended by NESREA counterparts in those countries,
(b) detailed study on the subject. .
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| (3)( c) All electric power generating sets shall be installed with appropriate shock absorbers to minimise vibrations to the environment and adjacent facilities | Same comments as above | Same recommendations as above | |
| (3)(d)The exhaust of all electric power generating sets shall not be directed towards any demised property | same comments as in respect of 6(1) above | Same comments as in respect of 6(1) above | Same comments as in respect of 6(1) above |
| (3)(e)Stack monitoring of power generator exhaust emissions shall be carried out once every month and the record shall be entered into the maintenance log book of the facility |
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This provision should be included in the NCC Guidelines. |
| (3)(f)Emission levels from the generator exhaust shall conform to the Agency’s guidelines on permissible limits for noise and air quality standards in Nigeria. | No Issues | NESREA to confirm applicable standard to S.1.9 of 1991: Pollution Abatement in Industries, industries Generating WastesOfficial Gazette, Federal Republic of Nigeria No 42, Vol 78, 20th August, 1991. (4) | |
| (3)(g)Waste oil, sludge and oil filters from electric power generating sets shall be handled and disposed of in accordance with the relevant laws and regulations of the Federal Republic of \Nigeria and amendments thereof, for handling and disposal of hazardous waste | Ditto | NESREA to confirm applicable standard to S.1.8 of 1991: National Effluent Limitation Official Gazette Federal Republic of Nigeria No 42, Vol 78, August, 1991. | |
| (3)(h)Liquid effluents and any other liquid wastes or oily waste water shall be handled and disposed of in conformance with authorised guidelines and regulations issued by the Agency. | Ditto | NESREA to confirm applicable standard to FEPA Act (Cap 131 LFN) National Environmental Protection (Effluent Limitations) Regulations requires every industry to manage chemical discharges from their operations | |
| (3)(i)Waste batteries and related solid wastes from maintenance of power generating sets shall be disposed of in accordance with the relevant guidelines and regulations issued by the Agency. | Ditto | NESREA to confirm applicable standard to S.1.15 OF 1991: Management of Hazardous and Solid Wastes Official Gazette, Federal Republic of Nigeria, No 102, Vol 78, 31st December, 1991 | |
| Section 10 Enforcement:(10.(1)When there is non-compliance with the provisions of the NESREA Regulations, the Agency is empowered to notify the facility of such non-compliance, reinspect the site for compliance 14 days from notification and issue a notice directing compliance where violation persists.
(10)(2)& (3) the creation of offences of non-compliance and obstructing NESREA. 10(4) An officer of the agency may in the course of his duty under the Regulations at any time enter the premises or facility to take samples or specimen for analysis and measurements in length or level of standards to which the Regulations relate |
The establishment Act empowers the Agency to carry out inspection of telecom facilities to determine compliance and also apply sanctions in instances of non-complianceWe note the event of inspections and re-inspections by NESREA.
A general offence for violating all manner of types of provisions (informative, prescriptive, declaratory, etc) as contained in the NESREA regulations is largely ambiguous and amorphous.
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There is a need to ensure due transparency, fairness and due process in effecting inspections. Thus there is a need to provide due notice of such inspections.Further the notification is to the site and not the operator with a 7 day period provided for compliance. The premise upon which a security guard is to sign a binding acknowledgement of receipt on behalf of an operator is yet to be established.
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The NCC’s Guidelines are to be amended to acknowledge NESREA’s powers in this regard, whilst stating that the Agency will endeavor to give reasonable notice prior to inspection.We believe that in line with international best practices, operators should be served at their place of business with due notice not the site.
Section 11 penalises anyone who further to Section 10(2) obstructs NESREA’s in the performance of his/her duties with a fine on conviction not exceeding N1 Million and/or imprisonment with an additional fine of N50,000 daily for everyday NESREA’s officer is obstructed from performing his/her duties. Section 11 (2) penalises operators for failure to comply with Sections 5 (requirement to erect BTSs and masts/towers in compliance with the EIA Act 2004 and submission of site specific EIA, submit to environmental audit once every 3 years in accordance with the NESREA Act, without prejudice to the NCC’s Guidelines on Technical Specifications for the Installation of Telecommunications Masts and Towers and any others conform to the plan of areas, have an environmental compliance signage (ECS), extant natural resources conversation laws, regulations and guidelines), 6 (removal of abandoned BTSs and masts/towers and reinstatement of the sites), 7 (compliance with the Regulations as determined by NESREA further to routine inspections and monitoring of the sites) and 8 compliance with permissible EMF radiation levels), with a fine not exceeding N5 million and/or imprisonment for 5 years and N50,00 for every day the offence subsists
NESREA considered ALTON’s earlier recommendation at the time the Regulation was still a draft legislation to ensure that any offence created should be clear and unambiguous |
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