Court Affirms FCCPC’s Authority Over Telecom Sector

A federal High Court has reaffirmed the Federal Competition and Consumer Protection Commission’s (FCCPC) authority to regulate the telecom sector.

This ruling comes as the FCCPC continues its investigation into MTN Nigeria over consumer complaints regarding undelivered data services, unexplained data depletion, and inadequate customer care.

Commenting, FCCPC said it welcomed  the ruling of the Federal High Court in Lagos on Friday, which affirms its statutory authority to regulate competition and consumer protection across all sectors, including telecommunications.

It noted that the judgment reinforces the FCCPC’s mandate as the primary authority responsible for preventing anti-competitive practices and protecting consumers in Nigeria, in line with Sections 17 and 18 of the Federal Competition and Consumer Protection Act (FCCPA) 2018.

The case, heard before Justice F.N. Ogazi, was instituted by a shareholder of MTN and a legal practitioner, Emeka Nnubia, who sought to halt the FCCPC’s investigation into MTN Nigeria. Representing himself, Nnubia argued that the FCCPC’s inquiry could violate data protection laws and that regulatory authority over MTN resided with the Nigerian Communications Commission (NCC) rather than the FCCPC.

The ruling clarifies that Section 90 of the Nigerian Communications Act (NCA) 2003, which grants the Nigerian Communications Commission (NCC) jurisdiction over competition matters within the telecom industry, must be read alongside Section 104 of the FCCPA 2018, which establishes FCCPC as the primary regulatory authority on competition and consumer protection across all sectors.

It held that the FCCPA, being the later legislation, supersedes conflicting provisions of the NCA 2003 to the extent that they seek to exclude FCCPC’s oversight in the telecommunications industry.

The court’s decision affirms that the NCC does not have exclusive competition regulation authority in telecommunications. Instead, both regulators now share concurrent jurisdiction, ensuring a coordinated approach to fair competition and consumer welfare in the telecom industry.

Section 105 of the FCCPA 2018 provides for collaboration between FCCPC and sector regulators, including the NCC. This approach aligns with global best practices, where consumer protection regulators collaborate with industry-specific regulators. The ruling reaffirms that FCCPC’s jurisdiction remains paramount in competition and consumer protection matters, while also recognising the role of the NCC in regulating telecommunications operations.

Furthermore, the court held that entering into a Memorandum of Understanding (MoU) with sector regulators is not a condition precedent for FCCPC’s enforcement of its statutory functions. Instead, it is the obligation of sector regulators to engage with FCCPC to define working arrangements, not the other way round.

The ruling also confirms that FCCPC acted within its statutory powers in issuing a Summons to MTN Nigeria as part of its ongoing inquiry into potential anti-competitive practices. The Summons and Request to Produce was found to be lawful and within the scope of FCCPC’s investigative powers.

In addition, the court held that the FCCPC’s request for information from MTN did not violate any data protection laws, including the Nigeria Data Protection Act 2023 and the NCA 2003. No personal data was requested, and MTN’s obligation to disclose information in the public interest is a legitimate basis for compliance with FCCPC’s inquiry.

The court commended the excellence of legal arguments presented in the matter and rejected any attempt to restrain a regulatory authority from exercising its statutory functions. The ruling reaffirmed that preventing a regulator from discharging its duties violates the doctrine of separation of powers enshrined in the Constitution.

On the issue of cost, the court acknowledged that the case raised important questions regarding the evolving landscape of competition and consumer protection law in Nigeria. While the court recognised that costs ordinarily follow events, it declined to award costs due to the public interest significance of the case.

The plaintiff, Emeka Nnubia, appeared in person.  Abimbola Ojenike with Oluwadamilola Omotosho appeared for the 2nd Defendant (Federal Competition and Consumer Protection Commission), while Chinonso Ekuma appeared for the 3rd Defendant (MTN Nigeria). There was no legal representation for the 1st Defendant, the minister of Industry, Trade and Investment.

The court’s decision underscores the FCCPC’s role in enforcing consumer rights and ensuring fair market practices under the Federal Competition and Consumer Protection Act (FCCPA) 201835. The affirmation of its regulatory powers supports ongoing efforts to address persistent service issues in Nigeria’s telecommunications industry.