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Need for Communications Appeal Tribunal in resolving disputes




The Communications sector is a fluid sector that evolves with technological development, a precursor to the emergence of new products and services in the communications markets hence the need to ensure the existence of a seamless regulatory framework which accommodates for its evolving characteristics, for example, section 70 of the Nigerian Communications Commission Act (2003) provides regulatory powers for regulatory making with the purpose of giving full effect to the provisions of the Act and its due administration.

Communications regulation

The Regulators mandate and role in the liberalized communications sector is formidable being the protector of the public interest, guardian of the diverse markets in the provision of communications networks and services, an unbiased referee and independent expert adjudicator to the market players providing communications networks and services, for example, by ensuring market competitiveness through regulation of termination rates where necessary to ensure fair pricing between providers, by regulating significant market providers, by preventing the abuse of dominant positions through predatory pricing, by mandating access to essential facilities such as the local loop, by mandating universal service provision of communications services where it is not profitable to operators but beneficial to the public interest, by managing scarce resources such as radio frequency spectrum and numbers, by prescribing cost-oriented pricing methodologies to ensure consumers get a good deal, by ensuring regulatory compliance with ex-ante and ex-post regulation, by making regulation and exercising dispute resolution powers.

Requirement of expertise in communications regulation and adjudication

The necessity of expertise in the complex regulation of the communications sector as illustrated above is the rationale for multiple jurisdictions adopting a fused system whereby the regulator in furtherance of its rule making powers also exercises adjudicatory powers. The British Institute of International and Comparative Law 2004 Report on Telecommunications Dispute Resolution: Procedure and Effectiveness gives credence to this view wherein it states that Oftel (now OFCOM, the UK regulator) in its combination of the roles of policy making with adjudication uses disputes and the dispute resolution process as an integral part of its policy making in a way that the courts are not able to.The Courts also shy away from meddling with such matters and have opined that such matters are best left to the experts, for e.g. the US Supreme Court in Verizon v Trinko540 U.S. 398 [2004] stated that ‘effective remediation of violations of regulatory sharing requirements will ordinarily require continuing supervision of a highly detailed degree’ and reiterated that the regulation of the telecoms industry should be the purview of the FCC and the state public utility commissions, rather than judges all across the country. Also inClear Communication v. New Zealand Telecommunications Corporation [1994] 6 TCLR 138 [1995] 1 NZLR 385 (PC) where an interconnection dispute arose following liberalization of the market in the absence of the existence of a regulatory body, the Court stated that in the absence of guidance as to the principles applicable, the parties were ‘negotiating in a fog’. The experts and the Court agreed that such investigations are the function of regulatory bodies who can make decisive value judgments as the Court found it difficult to apply general competition rules to the dispute over interconnection rate. These historical cases reiterates the importance of regulatory adjudication in the communications sector.

Errors in regulatory decisions

However, disputes distinguished from complaints in the communications sector comprises of consumer/operator disputes, inter-operator disputes and regulator/operator disputes. Communications case law as it pertains to regulator/operator disputes has proven that regulators make mistakes and dispute resolution in the communications sector is an additional and autonomous form of regulation, which also fosters regulatory accountability. In BT v. Ofcom, Case No 1085/3/3/07, [2009] CAT 1, WL 6402, the appeal tribunal found that Ofcom, the regulator had erred and wrongly interpreted the term ‘reasonable’ in the context of the end-to-end connectivity obligation and that the ‘gains from trade test’ applied by Ofcom to assess the reasonableness of prices was seriously flawed; also in Hutchison 3G (UK) Ltd v Ofcom, Case No 1047/3/3/04, [2005] CAT 39, [2005] All ER (D) 396, Case No 1083/3/07, [2009] CAT 11, The UK Competition Commission determined that the price controls imposed on all the Mobile network operators by Ofcom have been set at an inappropriate level because Ofcom erred in its approach to the allowance of a network externality charge.

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