CHAPTER ONE

GENERAL INTRODUCTION

 

1.1.      Background to the Study

The Telecommunications sector has witnessed phenomenal growth following the liberalisation of the industry in 2001. It has been described by many as a revolution that has dramatically changed the face of information and communications technology in Nigeria. The socio-economic impact of this development is unquantifiable; the mobile phone has become the most popular method of voice communications, broadband penetration is on the increase, commercial transactions are concluded on mobile phones without a face to face contact of the contracting parties. It has also enabled the cashless society policy of the Federal Government of Nigeria, while in the health sector; it has advanced health care delivery through telemedicine. This research seeks to assess the adequacy of legal and regulatory regime for protection of consumers of telecommunication services in Nigeria. Also, the research examines the challenges faced by the consumers of telecommunication services and the challenges of enforcing consumer rights in Nigeria.

 

It will not be an overstatement to say that the telecommunications industry is one of the most regulated sectors of our economy today. Despite this, the consumer of telecommunications services is faced with a lot of challenges. Amongst the challenges is the issue of the Quality of Service which is a key determinant in the relationship between consumers and the operators. This often makes the consumer to lose in the power equation as he often does not get value for his money.

1.2.      Statement of the Problem

The fundamental rights to privacy of citizens; their homes, correspondence, telephone conversations and telegraphic communications which are basic consumer rights have been guaranteed by the Constitution of Nigeria.1

 

The Nigerian Communications Act2does not specifically mention subscribers’ rights, but only refers to them in a broad sense3. Typically, subscribers’ rights and interests cover assurances of quality service (including availability of service), security, privacy, affordability, ease of use, functionalities, ability to connect to subscribers on any other network (interconnection), freedom of choice of operators and service options and transparency4. By the legislation establishing the Nigerian Communications Commission (NCC), its primary responsibility is to safeguard, moderate and regulate the rights of citizens of this nation, to exchange views and information through any of the modern technologies of telecommunication without let, hindrance or exploitation. In seeing to it that the telecommunications consumer is adequately served, it is beholden of the Commission to erect and maintain proper guide posts and regulations to enhance the harmonious co-existence and cooperation of various operators who need to utilize the same air waves to reach their numerous consumers5. This means that whichever way the issue is viewed, whether from the stand point of the Commission or that of the service provider, the delivery of professional and qualitative service to the consumer is uppermost in the scale of priorities.

Unfortunately, more than a decade after the advent of the Global System for Mobile Communications (GSM), subscribers in Nigeria are still far from getting world standard services. The experience is erratic, epileptic and inefficient services for which subscribers pay the highest tariffs in the world. Indeed, the GSM operators were recently fined N1.17 billion by the Nigerian Communications Commission over performance indicators on quality of services in 20136 . This penalty seems not to have impacted on the quality of services as the grade of service is still low necessitating another penalty of N647.5million in February 2014 on three major service providers: MTN Nigeria Communication Ltd, Airtel and Globacom7. This is a confirmation by the regulatory body that the Nigerian consumer has been badly treated by service providers.

This research seeks to ascertain the adequacy of the extant laws adequate for the protection of consumers of telecommunications services and to examine the challenges of enforcing the rights of consumers.

1.3.      Research Questions

This research seeks to answer the following questions:

1. How adequate is the legal framework for protection of consumers in the Nigerian communications sector?
2. What are the challenges faced by the consumers of telecommunication services in Nigeria?
3. What are the challenges of enforcing the rights of consumers of telecommunications services in Nigeria?

1.4.      Objectives of the Study

The revolution in the telecommunications industry has brought with it issues, cardinal of which is the issue of consumer protection. The telecommunications industry is complex given the high level of illiteracy in the country8. The Nigerian Communications Commission has placed the consumer at the centre of its vision as the only way to gauge the quality of services provided by service providers. It does appear that despite this laudable vision, the customer does not get value for his money since the quality of service continues to be poor.

The researcher therefore has set out to examine the existing legal framework for the protection of the consumers of telecommunications services in Nigeria, examine the challenges faced by the consumers of telecommunication services and to assess the adequacy or otherwise of the existing legal and institutional mechanisms for the enforcement of the rights of consumers of telecommunications services with a view to recommending a reform.

1.5.      Scope of the Research

This work examines the laws that exist in Nigeria for the protection of consumers, particularly as it relates to the telecommunications industry. The work also takes a look at the other laws that promote and regulate consumer interests in service quality, price and fair trading practices. Case law is also examined to see how our courts have performed in this regard. The work also examines the position in 3 other countries to offer concrete solutions to consumers’ problems in Nigeria.

1.6.      Methodology

This research adopts the qualitative approach on both primary and secondary sources of data collection. The primary source is the Constitution of Federal Republic of Nigeria. Secondary sources include textbooks by renowned authors, statutes and legislation passed by National and State Houses of Assembly and other delegated legislation as may have been passed by the agencies of government (NCC and Federal Ministry of Communications Technology), articles in reputable journals, handbills, newspapers and seminar papers.

1.7.      Significance of the Study

This study appraises the legal and regulatory regime in Nigeria for the protection of consumers of telecommunication services. It recommends measures that will enable consumers enforce their rights which are daily been violated by service providers through; poor services, unsolicited calls, wrong billing, dropped/uncompleted calls amongst many others. The study also recommends the strengthening of laws that will protect the privacy rights of consumers as guaranteed by the Constitution of Nigeria (1999) as amended. Also, this study is a comprehensive attempt at examining the adequacy of these laws and the challenges inherent in enforcing them. Policy makers, legislators, students and players in the telecommunications industry will find this work useful.

1.8.      Literature Review

It is necessary to acknowledge that, though the telecommunications sector has been with us for a long period of time, there is a dearth of materials on issues of consumer protection particularly as it relates to mobile communications in Nigeria. The liberalisation of the industry in 2001 generated more issues which have attracted scholars and public commentators. The hallmark of this review is on consumer awareness, consumer satisfaction and the challenges of consumer redress.

Public policy and consumer protection have become central to all; public policy (social policy as it has been called) intersects the field of consumer behaviour when public policy makers believe that governmental intervention in the process or outcome of marketing exchanges (i.e. between marketers and consumers) will benefit society as a whole. New social policies that affect marketing usually are the outgrowth of market place abuses brought to the attention of policy makers through the media, through consumers themselves, or through public recognition of the need for economic or social welfare. The government in its public advocacy role usually uses three types of intervention: regulation, consumer education and provision of incentives to encourage desired behaviours9. Similarly, Ekeyi is of the view that it is a common practice in civilised nations to make laws that are designed to protect the interest of its citizenry in the buying and using of goods and services. This action, usually referred to as consumer protection, guards against exploitation of consumers, reduces risk of exposure to harm from the usage of goods and services as well as provides a platform for the consumers to seek redress in the event where it inadvertently happens10.

It is true as submitted by Schiffman and Ekeyi that Nigeria is one of the countries that have a beautiful legislation for consumer protection particularly in the telecommunications sector. However, the Nigerian consumer of telecommunications services is the worst exploited and pained.

On the pains of the Nigerian consumer, Igbadi has opined that every activity in our daily lives involves the use of products and services, which are developed and marketed by individuals and a variety of societies for public consumption. Today, the market system has spread to every corner of the globe and the rise of transnational corporations has turned the world into a global factory and local markets have become global shopping centres. The Nigerian environment and market place has become a dumping ground for substandard goods produced by developed nations of the world; toxic chemicals used in the industries heavily pollute the environment putting it at incredible risk11. Igbadi has argued further that many Nigerian consumers evidently  live at the mercy of dishonest or irresponsible business interests and they have become vulnerable to poor quality products and services whether provided by government, business interests or being gifts of the nation or imported from developed and developing countries and those produced within the country12.

Theoretically, the Nigerian Communications Commission, the regulator of the industry, has put in place measures to protect the consumer. According to Ndukwe, the consumer of the telecoms products and services has many desires expected to be met. He wants services available at all times and at every place. The consumer wants the operator to respond at all times when he or she needs attention and to provide explanations whenever anything goes wrong. The consumer wants to be protected at all times from being taken advantage of by service providers. Just like consumers of any other services, the consumer of telecom services wants to be well treated. The Commission has recognised this and has put in place special structures to ensure that the needs and desires of the consumers are taken care of by the service providers. The consumer is the main object, the subject and the reason for its being, hence the place of the consumer as the king is sacrosanct13.

The position of the consumer appears very flamboyant. However, what is on ground is different. The Nigerian telecoms consumer is the most unprotected as he is faced with myriads of problems. Ekeyi is of the view that Nigerian GSM users are the most shortchanged in the world; they are exposed to most disparaging exploitation in the cable service industry by a South African cable service provider. Painfully, instead of taking the necessary actions to safeguard the interests of the Nigerian consumers, the Nigerian Communications Commission (NCC) has chosen to go arresting and harassing individuals that commercialise the services14.

Ukwueze has added the issue of illiteracy and apathy. He submitted that individual rights in private law are self-executing; it is for a person who is entitled to a right to take steps to enforce it in law. Under criminal law, even though State agencies can suo motu initiate prosecution of an offender, they often rely on information given or complaint made to them by victims of the offence. In other words, the law presumes that citizens (consumers) know their rights and will take steps to enforce these rights. Unfortunately, under the present telecommunications dispensation in Nigeria, consumers are illiterate over their rights. Even where they know, they often choose to ignore the rights or feel helpless in the face of corporate power. The solution, Ukwueze submitted further, lies in the vigorous consumer education to increase public awareness.15

Reasoning in the same direction, Ekeyi held that high-level of ignorance amongst the Nigerian consumers is a phenomenon not only predominant amongst the illiterate but even the educated. The number of Nigerians aware of the existence of the Consumer Protection Council (CPC) and the Nigerian Communications Commission as parastatals of government are arguably small. It is correct to add that the CPC itself has admitted that it has not lived up to its mandate16. Another fundamental challenge of consumers in the telecommunications industry is the quality of the telecommunications services.

According to Kanyip, quality services (otherwise referred to as service quality) and goods are the major source of complaint by consumers17. Writing on the quality of service in the telecommunications sector in its 11years of existence, Ajibade opined that in Nigeria, though the telecommunications industry has recorded landmark achievements in recent times, the successes are greeted by various unresolved customer complaints in the area of service delivery and customer satisfaction18.

The Nigerian Communications Commission has admitted that the quality of service is poor. The then Executive Vice Chairman of the Commission,  Dr. Eugene Juwah in a paper presented at the second yearly stakeholders conference of the Nigerian Institute of Public Relations (NIPR) held at the University of Lagos, Akoka admitted that the quality of service currently being experienced is not acceptable19

Uduchukwu has expressed the view that using the services of these network providers is frustrating due to the high rate of drop calls, poor network coverage, fluctuating Internet services, unjustifiable charges and lack of qualified customer care agents. He further submitted that one can seldom complete a minute call without any bad signal interference. Also, these network providers seem to only focus attention on cities and major towns, leaving remote areas with poor and even lack of network. Further, in spite of the fact that the Internet plays a key role in globalisation, none of the service providers in Nigeria can boast of adequate and reliable Internet connection in all the villages and cities in the country²⁰.

Service quality, consumer rights and satisfaction have become imperative for a study like this. According to the Consumer Parliament Review, the Consumer Affairs Bureau of the Nigerian Communications Commission (NCC) has listed the rights which every consumer is entitled to irrespective of his or her status in life. The rights are called, ‘Consumer Bill of Rights.’ They include the right to be informed, the right to safety, the right to choice and the right to be heard21.

Service quality is therefore, a sine qua non in achieving consumer satisfaction and in the long run, upholding consumer rights. According to Muzahid et al, service quality traditionally has been conceptualised as the difference between customer expectation regarding a service to be received and perceptions of the service being received22. In some earlier studies, service quality was referred to as the extent to which a service meets a customer’s needs or expectations. It is also conceptualised as the consumer’s overall impression of the relative inferiority or superiority of the services23.

Mohamed has submitted further that consumer satisfaction is a well-known and established concept in several areas like marketing and welfare economics. The most common interpretations obtained from various authors reflect the notion that satisfaction is a feeling which results from a process of evaluating what has been received against what has been expected, including the purchase decision itself and needs and wants associated with the purchase24.

As Muyiwa has submitted, the government may have tried to react to the problems affecting the consumer, like putting in place impressive body of legislations and parastatals on consumer rights25. These include the Standard Organisation of Nigeria (SON) Act of 1971, as amended, the Consumer Protection Council Act, 1992, the National Agency for Food and Drug Administration and Control, 1993, the Nigerian Electricity Regulatory Commission (NERC) Act, 2006, the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act, 1999, and the Nigerian Communications Act (NCA), 2003. Impressive as this may appear, the practical impact on the consumer remains minimal due to weak implementation.

This much has been dealt with by Monye in Law of Consumer Protection, The author in that work has attempted a graphic analysis of Consumer Laws in Nigeria and made several recommendations for effective consumer protection amongst which are; Consumer education, adoption of strict liability, improvement of the safety consciousness of the consumer enhanced commitment of regulatory agencies of the government, provision of compensation of victims of defective products. However it is submitted that the work has not dealt with telecommunications issues, as such, the work has left a wide gap particularly as it concerns redress for consumers of telecommunications services26.

Ukwueze’s “Legal Remedies for Consumers of Telecommunications Service in Nigeria” is one of the novel attempts in examining the law and the existing remedies for consumers of telecommunications services in Nigeria. This author has adumbrated the legal regime and the remedies, it has however failed to address the challenges faced by consumers in enforcing their rights in the industry.27

This of course has brought up the teething issue of consumer redress. As has been established by several authors, the judicial process is fraught with so many shortcomings that often, consumers lack the motivation and courage to go through it. According to Kanyip, adjudication is almost a gamble since a consumer can never be certain that the verdict will be in his favour. Another disincentive to consumers to adjudicate their claim is the delays usually experienced in the present judicial process in the country. It is not uncommon for actions to run for a number of years before they are finally disposed of. For instance, in Wilson Bolaji v. NNPC,28 the Ikeja High Court took 23 years to award N500,000 compensation to a dead kerosene explosion victim and his dependants29.

According to Ukwueze, in response to the above challenges, some countries such as the USA allow ‘class action’ under which a representative group of plaintiffs or a consumer association or a public agency sues on behalf of a whole class with similar claims against the same defendant30. This position is obtainable in Nigeria where consumer associations have approached the court severally on behalf of their members31. Ukwueze has submitted further that apart from the obstacles posed by procedural rules of court which lead to long delays in obtaining judgment and high cost of litigation, some legal rules are usually devised to protect business interests to the detriment of the consumer. In the law of contract, such rules include privity of contract, caveat emptor and freedom of contract. In tort, such consumer oppressive rules include the rule that a manufacturer’s evidence of ‘state of the art’ or ‘foolproof system of production’ negatives negligence and the rule of remoteness of damage32.

Again, the evidential burden of proof placed on the consumer, according to Ekanem, is a near impossible to discharge burden wherein the court expects a sleeping man to give detailed evidence of the fact and circumstances giving rise to the loss of his car. The courts in Nigeria have left much to be desired in the aspect of enforcing consumer rights. They have not displayed judicial activism towards alleviating the plight of telecommunications consumers. Most of the cases have been determined on preliminary objections bordering on jurisdiction.33 Where the courts have cause to grant damages at all, they are so paltry that the consumers feel it is a waste of time.34

The laws governing telecommunications consumer rights redress in Nigeria are not comprehensive enough. The consumer is expected to proceed as in a normal civil cause which is characterised by the deficiencies adumbrated above. In Indian jurisdiction, a consumer is expected to file a complaint free of charge and the proceedings are summary in nature. The endeavour is made to grant relief to the aggrieved consumer as quickly as possible, keeping in mind the provisions of the Act on laid down time schedule for disposal of cases. A dissatisfied party of the decision of the District Forum will appeal to the State Commission. Against the order of a State Commission, a consumer can go to the National Commission.

It is the position of this research that such speedy trial of cases be incorporated in our legal regime to give the Nigerian consumer its maximum benefit.

From the foregoing review, it is clear that no writer has ever considered the legal framework for protection of consumers in the Nigerian Telecommunications Sector in extensor. More so, the challenges of enforceability of these rights have not been given attention by relevant stakeholders in Nigeria. In fact, these rights have been neglected. The thesis of this work is therefore, to extensively expound on the legal regime on rights of consumers with a view to making recommendations which will have lasting positive impact on the Telecommunications industry and especially the rights of the consumers.

 

1.9.      Conceptual Clarifications

1.9.1    Understanding Telecommunications

According to Hargrave’s Communication Dictionary, the literal meaning of Communication is ‘communication at distance’. However, it is generally used as a term to describe the communication of information by electronic means, that is electronic communications. Any transmission, emission, or reception of symbols, signals, writings, images, sounds, or other intelligence of any nature by wire, radio, optical, or other electromagnetic systems35

Telecommunications therefore is the art and science of communicating information of a user’s choosing (including data, image, graphics and video) at a distance by means of electrical (through wire), optical (through optic fibre), or electromagnetic radiation (wireless) methods without change in the form of content of the information, between or amongst points specified by the user. Examples include telephone, radio, television, facsimile and telegraph also called telephony.36

Telecommunications as defined by the Act means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by wire, radio, visual or other electromagnetic system37. It is submitted that the above definition captures the subject matter in its most essential elements but ignores to point out the key character of such transmission that qualifies it as telecommunications. Adum38 is of the view that Electronic transmission of information qualifies as telecommunications only when such a transmission is a two-way transmission that enables both the sender and the receiver to transmit at the same time, using the same medium. For example, a telephone conversation, a telegraph message or fax and an internet exchange are all forms of electronic information transmission.

In contrast, a television transmission and radio transmission, though all forms of electronic information transmission, are technically speaking, broadcasting, because they are one way transmissions that do not enable the receiver to transmit information back to the sender at the same time, using the same medium. It is submitted that this argument holds true. However, there is a thin line between telecommunications and broadcast as both involve transmitting information electronically.

More so, cable television has shifted from a one way transmission unit; it involves a return party which leads to interactive services and internet access39. Industry watchers are calling for a merger of the Nigerian Broadcast Commission and the Nigerian Communications Commission as in some countries; there is a regulatory convergence (e.g. Office of Communications (OFCOM) in the United Kingdom (UK). In Nigeria, it was one of the reasons why the 1998 Telecoms Policy was jettisoned but the National Policy on Communications 2000 could not achieve that goal either. The phrase ‘Nigerian Communications Act’ instead of “Nigerian Telecommunications Act” is an indirect way of attempting convergence40. Though, the Act gives the Nigerian Communications Commission the “exclusive competence” to regulate all forms of communication in Nigeria regardless of any other written law.

Usman has submitted that broadcasting is a segment of communications and convergence of services makes it difficult to differentiate between, say “telecommunications service” and ‘information service’ which will be in the realm of information technology and therefore, not subject to regulation by the Nigerian Communications Commission. This has led to regulatory overlap and conflict between the Nigerian Communications Commission and the National Information Technology Development Agency (NITDA).

1.9.2.   The GSM Network

According to Asagh,41 a GSM network is composed of several functional entities, whose functions and interfaces are specified. The network can be divided into three broad parts; the mobile station, the base station subsystem and the network subsystem. The mobile station is carried by the subscriber, the base station subsystem controls the radio link with the mobile station, and the network subsystem, the main part of which is the Mobile Services Switching Centre (MSC), performs the switching of calls between the mobile users and between mobile and fixed networks users. The MSC also handles the mobility management operations.

1.9.3.   Mobile Station

The Mobile Station consists of the physical equipment such as the radio transceiver, display and digital signal processors, and the SIM Card. It provides the air interface to the user in GSM networks. As such, other services are also provided, which include: voice services, data bearer services, and the features supplementary services. The mobile station also provides the receptor for SMS messages, enabling the user to toggle between the voice and data use. Moreover, the mobile facilitates access to voice messaging systems, the various data services available in a GSM network42

 

The Mobile Station (MS) consists of the mobile equipment (The terminal) and a smart card called the Subscriber Identification Module (SIM). By inserting the SIM card into another GSM terminal, the user is able to receive calls at that terminal, make calls from the terminal and receive other subscribed services. The mobile equipment is uniquely identified by the International Mobile Equipment Identity (IMEI). The SIM card contains the International Mobile Subscriber Identity used to identify the subscriber to the system, a secret key for authentication and other information. The IMEI and IMSI are independent, thereby allowing personal mobility. The SIM card may be protected against unauthorised use by a password or personal identity number43.

1.9.4.   Base Station Subsystem

The Base Station Subsystem is composed of two parts, the Base Transceiver Station (BTS) and the Base Station Controller (BSC). These communicate across the standardised interface, allowing operation between components made by different suppliers; it houses the radio transceivers that define a cell and handles the radio link protocols with the mobile station. In a large urban area, there will potentially be a large number of BTS deployed. Thus, the requirements for a BTS are ruggedness, reliability, portability and minimum cost. The Base Station Controller (BSC) manages the radio resources for one or more BTS. It handles radio channel set up, frequency hopping, and handovers as described below. The BSC is the connection between the Mobile Station and Mobile Service Switching Centre (MSC)44.

1.9.5. Network System

The central component of the network subsystem is the Mobile Services Switching Centre (MSC). It acts like a normal switching mode of an Integrated Service Digital Network (ISDN). It also provides all the functionality needed to handle a mobile subscriber such as registration, authentication, location updating handovers, and call routing to a roaming subscriber. This operates in conjunction with other functional entities, which together form the network subsystem. The MSC in turn provides the connection to the fixed networks45.

The Home Location Register (HLR) and Visitor Location Register (VLR), in conjunction with the MSC, provide the call routing and roaming capabilities of the GSM phones. The HLR contains all the administrative information of each subscriber registered in the corresponding GSM network, along with the current location of the mobile. There is logically one HLR per GSM network, although it may be implemented as a distributed database. The Visitor Location Register (VLR) contains selected administrative information from the HLR necessary for call control and provision of the subscribed services for each mobile currently located in the geographical area controlled by the VLR. It is possible to implement each functional entity as an independent unit. However, the VLR and MSC are implemented together, so that the geographical area controlled by the MSC corresponds to that controlled by the VLR and this simplifies the signaling required46.

 

The Equipment Identity Register (EIR) is a database that contains a list of all valid mobile equipment on the network, where such mobile station is identified by its International Mobile Equipment Identity (IMEI). An IMEI is marked as valid if it has been reported stolen or is not the type approved. The Authentication Centre (AUC) is a protected database that stores a copy of the secret key stored in each subscribers SIM card used for authentication and encryption over the radio channel47.

1.9.6.   GSM Services

GSM is a digital cellular system designed to support a wide variety of services, depending on the user contract, the network and the mobile equipment capabilities.

In GSM terminology, telecommunication services are divided into two broad categories:

–        Bearer services are telecommunication services providing the capability of transmission of signals between access points (the User Network Interfaces (UNIs) in (SDN). For instance, synchronous dedicated packet data access is a bearer service.

–        Teleservices are telecommunication services providing the complete capability, including terminal equipment functions, for communication between users according to protocols established by agreement between network operators48.

In addition to these services, supplementary services are defined that modify or supplement a basic telecommunication service: These include call forward (such as when the mobile subscription is unreacheable by the network), caller identification, call waiting, multiparty conversations, charging information and call barring of outgoing or incoming calls.

1.9.7.   Data Transmission

This is the sending and receiving of data via cables (e.g. telephone lines or fibre optics) or wireless relay systems. Because ordinary telephone circuits pass signals that fall within the frequency range of voice communication (about 300-3500 hertz), the high frequencies associated with data transmission suffer a loss of amplitude and transmission speed data signals must therefore be translated into a format compatible with the signals used in telephone lines. Digital computers use a modem to transform outgoing digits electronic data, a similar system at the receiving end translates the incoming signal back to the original electronic data. Specialised data transmission links carry signals at frequencies higher than these used by the public telephone network.49

1.9.8.   General Packet Radio Service GPRS

The General Packet Radio Service (GPRS) is a packet data technology that allows GSM operators to launch wireless data services, such as E-mail and internet access. As a result, GPRS provides operators with the ability to use data to drive additional revenue. GPRS is often called a 2.5G technology because it is a GSM operator’s first step towards  third generation (3G) and a first step in wireless data services. Although GPRS is a data-only technology, it helps improve GSM voice capacity. When an operator deploys GPRS, it also can upgrade to vocoder, a new type of voice coder that turns voice into digital signals before they pass across the wireless network. The vocoder uses Adaptive Multiple  Rate Speech transcoding (AMR) technology, which can handle twice as may simultaneous voice calls as a network that uses the old vocoder. As a result, GPRS allows GSM operators to accommodate additional voice traffic without the expense of acquiring additional spectrum.50

1.9.9.   Short Message Service SMS

Short Message Service (SMS), commonly referred to as “text messaging,” is a service for sending short messages of up to 160 characters (224 characters if using a 5-bit mode) to mobile devices, including cellular phones, smartphones and PDAs.

SMS is similar to paging. However, SMS messages do not require the mobile phone to be active and within range and will be held for a number of days until the phone is active and within the same cell or to any one with roaming service capability.51

1.9.10. The Internet and E-commerce

The Internet is best thought of not so much as technology but rather as an infrastructure, a mass of interlinked hardware and software from deep sea cables and telephone wires to desktop computers and mobile phones connecting an increasingly large proportion of the world’s computing devices. Many services today operate via the Internet including perhaps most famously, the world wide web, but the Internet itself predates these. It is the vast physical network within which much of modern digital culture exists52.

 

Indeed, various reports have shown the transformative power of the Internet, to improving the socio-economic situations of countries across the globe. Reports say the Internet contribution to Global GDP was greater than the GDP of Canada in 2012. In India, the Internet-based activity accounted for more than five percent of GDP growth53. Internet has undoubtedly brought with it improved service delivery.

1.9.11. Internet Presence

Today, the Internet and presence on the web are regarded as some of the most cost-effective marketing tools to reach and be reached by an unlimited number of people across borders. ICT has ushered in a complete innovation in all sectors of the economy. For example, the banking sector has embraced e-banking and e-payment systems in order to achieve a ‘cashless society’. The health sector has the telemedicine initiative. In the area of communications, e-mail has promoted cheap and faster global communications and interactions, in trade and investment, e-business and e-commerce are predominant54.

 

1.10.    Consumer

According to Monye, the term, consumer is elastic in nature, and extends to include a user of products as well as services55. In her Law of Consumer Protection, Monye defines the consumer as:

One who consumes, individuals who purchase, use, maintain and dispose of products and services; users of the final product, a member of the broad class of people, who is affected by pricing policies, quality of goods and services, credit reporting, debt collection, and other trade practices for which the state and government consumer protection laws are enacted , the term is further defined as a buyer of any consumer product; any person to whom such product is transferred during the duration of an implied or written warranty applicable to the product, and any other person who is entitled by the terms of such warranty or under applicable state law to enforce against the warrantor the obligation of the warranty56.

The Nigerian Communications Act defines a consumer, customer or subscriber as any person who subscribes to and uses a communication service57.

The Consumer Protection Council Act defines the consumer as an individual who purchases, uses, maintains or disposes of product or services58. Monye, submits that the use of the word “Individual” in this definition does not foreclose action by a group, or class of people. In dealing with the right to complain, section 6 of this Act provides that a consumer or community that has suffered a loss, injury or damage as a result of the use or impact of any goods, product or service may make a complaint in writing to seek redress through a state committee. This provision extends the redress available to consumers to “community59”.

This thus envisages a class action. In simple terms, she submits that a consumer can be defined as a person who purchases or uses any product or service or is adversely affected by a product or service60.

This definition is comprehensive enough and shall be adopted within the context of this research.

1.11.    Meaning of Consumer Rights

Consumer rights can be defined as being in agreement with what is just, good or proper when dealing with consumers as well as ensuring that the consumer is protected from harm or wrong doing when dealing with the provider of a service or a distributor of a product61. According to Business Dictionary, generally accepted basic consumer rights are (1) Right to safety, protection from hazardous goods; (2) Right to be informed; availability of information required for weighing alternatives, and protecting from false and misleading claims in advertising and labelling practices; (3) Right to choose, availability of competing goods and services that offer alternatives in terms of price, quality, service; (4) Right to be heard, assurance that government will take full cognisance of the concerns of consumers, and will act with sympathy and dispatch through statutes and simple and expeditious administrative procedures62.

1.12.    Organisation of the Study

To achieve the required results, the work is divided into Six Chapters. Chapter one deals with preliminary issues: introduction, statement of the problem, the scope of the research, methodology, literature review and organisation of the study. Some vital terms in the research work have also been defined. Chapter Two analyses the Nigerian Communications regulation, and policy. The legal regime and institutions regulating   the industry, the world trade organisation (WTO), The International Telecommunications Union (ITU), The National Frequency Management Council (NFMC), the powers of the State Governments in the Regulation of Telecommunications, The Wireless Telegraphy Act, and the Basis of the exercise of powers by the NCC are examined.

Chapter Three is on Consumer Rights and Protection Under the Nigerian Telecoms Laws wherein the concept of consumer protection, consumer rights, and the laws and regulations pertaining to consumer protection like the Constitution of Nigeria, the Consumer Bill of Rights, United Nations Guidelines for Consumer Protection, the challenges of the consumer, the issue of interception of consumer communications and the balancing of consumer rights with state security have been examined. The chapter also examines the adequacy of consumer protection laws in Nigeria.

 

Chapter Four is titled Assessing the quality of service, Universal Access and Service. This chapter captures issues like service quality, quality of service standards, quality of service regulations, key performance indicators, Universal Access and service, also, the chapter deals with  Financing Universal Service, broadband and co-location. The challenges of telecoms operators, like power generation, multiple taxation, illegal taxes and levies, multiple regulation crimes and wilful destruction, natural disasters, broadband challenges among other issues are discussed.

Chapter Five is on Enforcing Consumer Rights. This chapter examines the concept of enforcement and regulatory and institutional bodies responsible for enforcing consumer rights have all been examined; The Nigerian Communications Commission (NCC), the Consumer Affairs Bureau (CAB), the Consumer Protection Council (CPC) and the courts. The issues of damages, compensation and the challenges therein have also been examined.

 

Chapter Six is the summary, recommendations and conclusion of the work. It is concluded that the problems inherent in the industry are impactful not only on the individual consumer but also on the society as a whole.

1 Section 37 0f the Constitution at the Federal Republic of Nigeria (1999­) as amended.

2 Nigerian Communications Act (No. 19)-LFN, 2004.

3 Section 140 NCA 2003.

4 Israel Adejoh Usman ‘Telecommunications Law: Forensic Analysis of the Subscriber Rights in Modern Telecoms Industry Using the GSM Internet and Cable Television as Models’ Alphajuris Workshop on Telecommunications Law, Held at Benue Hotel Makurdi, 10-11 March, 2010.

5 Ernest Ndukwe, ‘The Telecoms Consumer is King’ Consumer Parliament Review, Vol.1 No.1 April-May (2004), P.2.

6 Business Journal www.businessjournalng.com/ncc-slams-n1-17bn-penalty-on-etisalate -global (last accessed 28 August 2014).

7Daily Independent; http://dailyindependent.com/2014/03/glo-airtel-m-ncc-fine (last accessed 28 August 2014).

8 Laide Akinboade, “35 million Nigerians adults are illiterate – minister” available at  www.vanguardngr.com/2013/09/35m-nig (last accessed 8th July, 2015).

9  Leon G. Schiffman et al, Consumer Behaviour Prentice Hall of India, Private Limited, New Delhi 110 2000) p. 630

10 Chris Ekeyi, ‘How Protected are Nigerian Consumers’ available at nigerianconsmers.com/blog/how.protected (last accessed 28 August 2014).

11 ZIK B. Igbadi, ‘Pains and Problems of the Nigerian Consumer’ available at htt:www.nigerianobsever.com/09072011/meckendobsemer/features/htm/ (last accessed 8 September 2014).

12 Ibid.

13 Ernest Ndukwe, ‘The Place of the Consumer in the Nigerian Telecoms Industry’ Being a keynote  address presented at the third stakeholders forum by it and Telecoms Digest at Golden Gate Restaurant, Ikoyi, Lagos on 9 June 2006. Available at ncc.gov.ngcareers/speeches. (last accessed 10 September 2014).

14 Chris Ekeyi Op Cit.

15 F.O Ukwueze; ‘Challenges of Obtaining Consumer Redressing in Nigeria’ Journal of Contemporary Law, Vol.1 (2012) p.134.

16 Chris Ekeyi Op Cit.

17 Benedict B. Kanyip, Consumer Protection in Nigeria: Law Theory and Practice (Abuja, Rekon Books Ltd) 2005. P.33.

18 Akinola Ajibade ‘11years After Service Quality Still a Challenge’ The Nation Newspaper, Tuesday, 6 July 2012. P.47.

19 Adeyemi Adepetun “why the quality of telecoms  service remain poor”. The Guardian Newspaper  available at www.theguardiansnews>businessservices>businessnews (last accessed 26 November, 2015 )

21 Consumer Parliament Review, Vol. 1 April-May (2004) p.21 an official publication of the Nigerian Communications Commission.

22 Mohamed Muzahid Akbar et al ‘Impact of Services Quality Trust and Customer Satisfaction on Consumer Loyalty’ AABAC Journal 1 (January-April, 2009) p.25.

23 Ibid p.26.

24 Ibid.

25 Muyiwa Ayojimi, ‘Is the Consumer King in Nigeria?’ Business Day, 18 March 2014.

26F. N Monye; The Law of Consumer Protection (Ibadan, Spectrum Books Limited) 2005.

27 F.O. Ukwueze, “Legal Remedies for Consumers of Telecommunications Services in Nigeria”. available at www.researchgate.net/../festus_ukwueze (last accessed 26th November, 2015).

28 Reported in The Guardian Newspaper, 3July 1997 and quoted by B.B. Kenyip Op Cit p.350.

29 Kanyip Op Cit p. 134.

30 Ukwueze Op Cit p.134.

31 See the case of NAAC v. MTN (unrep) Suit NOFHC/ABJ/CS/N/577?, 2003.

32 Ukwueze Op Cit 135.

33Nkwocha & ORS v. MTN & ORS (2004) Vol. 1 TLR 1, NAAC v. MTN (unrep) Suit No. FHC/ABJ/CS?/N/577?/2003, NAAC & ORS v. ECONET Wireless Ltd & ORS.

34GKFI (Nig) Ltd v. NITEL Plc (2009) 13 NWLR (pt 1164) 334 MTN Communications Ltd v. Amadi (2013) All FWLR (pt 670) 1329.

35 Frank Hargraves, “Hargraves Communications Dictonary” (IEFE Press, 445 Hoes Lane, Piscataway, NJ) New York p.518.

36 Ibid 518.

37Section 157 of the Nigerian Communications Act, 2003.

38 Alex Ter Adum: “An Appraisal of the Regulatory Regime of Regulating Telecommunications under the Communications Act 2003”. (Unpublished) LLM Dissertation submitted to Faculty of Law Benue State University. January, 2008.

39 Israel Adejoh Usman: “Telecommunications Law: Forensic Analysis of the Subscriber’s Rights in Modern Telecoms industry using GSM, internet and Cable Television as Models” Presented at Alpha Juris Workshop Series (10 March, 2010) P.3.

40 Ibid.

41 Janet Asagh “Global System for Mobile Communications in Nigeria Legal Issues Arising”. Being a text of the staff seminar presented at the Nigerian Institute of Advanced Legal Studies, University of Lagos, Akoka on 31 July 2003. P.3.

42 Available at www.tutorialspoint.com/gsm/gsm mobile(Last accessed 11 September, 2014).

43 Asagh Op cit.

44 Ibid P.6.

45 Ibid P. 6.

46 Ibid P.7.

47 Ibid P.7-8.

48 available at etutorals.org/:/GSM%2BSevices (Last accessed 12 August 2014).

49 available at www.britanica.com/EBcheck/topic (Last accessed 12 September 2014).

50 available at www.4gamericas.org/indexocfm%3Ffuse (Last accessed 12 September 2014)

51 What is short message (SMS)? Available at mobile.computing.techget.com/definition/shortmessages/services (Last accessed 12 September 2014)

52Adeyemi Adepetun, “Bridging Gender Divide in Nigeria’s Internet Access” The Guardian Newspaper Vol. XXIX No. XII, W W V Wednesday January 23^rd 2013.  P. 25.

 

53 Ibid P.25

54 Ben Uzor Jr. “Improving Nigeria’s Internet Presence for Economic Prosperity” Business Day Newspapers of 23^rd April, 2012.

 

55 F.N Monye “Tips on Consumer Protection” Consumer Journal; A publication of Consumer Awareness Organisation; Chenglo Ltd … (2005) P. 159.

56 F.N Monye Law of Consumer Protection, Ibadan; Spectrum Book Limited (2005) P. 15.

57 Section 156 Nigeria Communications Act, 2003.

58 Consumer Protection Council Act Cap C25 Laws of the Federation of Nigeria, 2004.

59 F.N Monye etal, Research Report on the State of Consumer Protection in Nigeria: A Review of Consumer Protection in the Telecommunications Sector by Consumer International (CI) in conjunction with Open Society Initiative for West Africa (OSIWA) in partnership with Consumer Awareness Organisation January, 2014 www.consumerinternational.org (last accessed 7 October, 2015).

60 Ibid

61 Howard Badler, “What are my Consumer Rights” www.Bizcommunity.Com/../ HowardBadler. (last accessed 18^th July, 2013).

62 Business Dictionary www.businessdictionary .com/definition (last accessed 18^th July, 2014).

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