Need for Communications Appeal Tribunal in resolving disputes

Continued from Tuesday last week
The scrutiny by the CAT and its finding of regulatory errors is again illustrative of how the dispute resolution process is an additional regulatory tool which constitutes part of the overall regulatory framework in the UK. The UK institutional framework further distinguishes communications law disputes by referring pricing disputes to the UK Competition Commission and other disputes to the UK Competition Appeal Tribunal.

Dispute resolution: an additional and autonomous regulatory tool
The role of dispute resolution being a regulatory tool as illustrated in the case law and institutional framework above is achievable through a de novo review of a regulatory decision where the regulatory decision is considered in its entirety by a specialist adjudicatory body with cross-disciplinary expertise in law, economics, business and accountancy capable of hearing appeals against decisions of regulatory bodies on the merits, fact and law and enabling it to deal with legal and economic issues in economic related disputes.

This composition evidently exhibits the inadequacy of the courts to adjudicate over such complex communications disputes, for example, the UK Select Committee on the Constitution Sixth Report, Chapter 11 on Improving Appeal Mechanisms indicates that there was a gap in the UK institutional framework due to the lack of expertise in the courts to adjudicate over economic related disputes and states some of the reasons for the establishment of the Tribunal in the UK to deal with telecommunications appeals was because the judges lacked detailed economic expertise and the intensity of review in commercial regulated matters was limited. Jurisdictional experiences as discussed above illustrates the benefit of having a regulatory framework where appeals are reviewed on the merits and the appellate body seized with jurisdiction possesses the expertise to adjudicate over ensuing disputes.

Nigerian framework
Whilst the UK framework should not be a one size fits all model as each jurisdiction has its own peculiarities, the present Nigerian framework in the absence of an expert appellate body can glean some lessons towards enhancing its communications institutional framework, for example, appeals in communications matters are made to the NCC in the 1st instance, and following a review by the NCC to the Courts. A cause for concern in the Nigerian framework can be seen in the following cases NCC v MTN, Appeal No. CA/A/25/2004 where MTN, the Plaintiff/Respondent applied to the FHC for a review of the Interconnect Rate determination carried out by NCC. The NCC in response entered a preliminary objection in the matter contending that MTN was obligated to explore pre-action conditions stipulated in s86-88 of the NCC Act 2003. On appeal, the Court of Appeal held that it is essential that MTN meet the pre-condition stipulated in s86-88 of the NCC Act 2003 requiring a review of the decision by NCC, before going to court;also in Econet Wireless Nigeria Ltd V. NCC, Appeal No. CA/A/83/2004Econet applied to the FHC challenging the Interconnect rate determination carried out by the NCC in December 2004. The NCC also challenged the jurisdiction of the court on the grounds that Econet had not followed the necessary procedural requirements before filing the suit. The Court upheld NCC’s contention and ruled that Econet was obligated to comply with the requirements of section 86-88 of the NCC Act 2003. The suit was thereby struck out.

The Courts decision were accurate as section 86-88 of the NCC Act 2003 clearly provides for pre-action provisions which if not complied with ousts the jurisdiction of the Court pending compliance with the provisions. However, it is doubtful if the economic related disputes in both instances could be competently adjudicated by the Nigerian courts in the absence of the requisite expertise. Perhaps, the rhetoric that the Court could rely on expert evidence with the overriding duty of the expert to the court in adjudicating over the matter or seek the assistance of an amicus curiae, nonetheless the judge will still be required to understand, for example, economic evidence to make a reasoned decision especially where presented with two conflicting expert opinions. Moreover, communication disputes tend to be inquisitorial and not just adversarial going beyond the interests of the parties to the public interest especially in relation to economic related disputes, for e.g. an adjudicator may at times when reaching its decision carry out a consultation on its proposed decision to the parties in dispute or to interested stakeholders.

Towards a robust legal and institutional framework
The ills of the absence of a robust legal and institutional dispute resolution framework are lack of regulatory accountability; it breeds errors in regulatory decision making; stifles legal development; creates distortion in the market through the application of incorrect regulatory decisions thereby impacting on the competitiveness of the sector and consumer welfare regulatory objectives, the epicenter of communications regulation. In contrast, the benefits are immense, the regulated network and service providers exercises its constitutional right of appeal to have their objections reviewed on the merits of the case by a competent appellate body; it provides a mirror which reflects the increasing effectiveness of competition in the market; it’s a good means to monitor the effects of ex-ante and ex-post regulation in the sector and to assess whether or not there is a need for more or less regulation in the sector thereby ensuring that regulatory objectives are met and not dated; it fosters regulatory accountability by testing the effectiveness of a dispute resolution framework in terms of resources, personnel and structure; and it facilitates timely resolution of commercial disputes.

Nigeria should therefore consider developing the third regulatory restraint in communications regulation, the dispute resolution framework in addition to ex-ante and ex-post regulation towards a robust communications legal and institutional framework by enacting legislation creating a communications appeal tribunal to adjudicate over appeals from NCC decisions in particular regulator/operator disputes. The existence of such a framework will be most suited to resolve the on-going dispute between MTN and NCC.
Fayose is a Lagos-based legal practitioner