ABSTRACT
The telecommunications sector is Nigeria's oil. The services offered in telecommunications include internet services, vehicular tracking services, voice, data, real-time video streaming, and so on. The rapid expansion of the industry in terms of licensees and consumers causes friction in terms of complaints from consumers about the quality of service and the protection of consumer rights. This constitutes one of the objectives for which the Nigerian Communication Commission was made which in turn established the Consumer Affairs Bureau to see to the protection of the interest of consumers including persons with disabilities through plans and programs that ensure consumer satisfaction with the telecommunications service in the country. This paper acknowledges the basic rights of consumers under telecommunication contract law and discusses adequate remedies for victims of poor quality of service.
1.0 INTRODUCTION
The telecommunications sector in Nigeria is a multi-million naira industry that continues to live up to its name as a national critical and profitable infrastructure. With the constant need to communicate and the influence of the internet, the services of internet service and voice telephoning have been the most popular among subscribers. With an envious consumer population, it is envisaged and possible that various complaints such as disconnection of subscribers, failure to deliver messages, one-way or two-way loss of audio, call misdirection to an unintended number, cross talk, and so on may occur.
The Nigerian Communications Commission (hereinafter referred to as the Commission) in a bid to ensure smooth operations and due diligence upholds consumer affairs and emphasizes consumer protection and quality of service.1In the exercise of the powers conferred upon it by section 70 of the Nigerian Communications Act 2003 (hereinafter referred to as the NCA 2003), the Commission made the Consumer Code of Practice Regulations 2007. The Regulations aim to provide consumer codes to govern the provision of services by licensed telecommunications operators in Nigeria and related consumer practices2 and its procedures and substantive requirements apply to all licensees and communications service providers in Nigeria.
An integral right in consumer protection is the right to remedy for exploitation or the breach of a telecommunication contract and it is cousins with the right to make complaints. The mechanisms for remedy are diverse and as such limitations and exceptions guide its application. A right to remedy can only be invoked by the individual who entered into the contract or patronized the service, not a third party or his beneficiary.
- WHAT ARE CONSUMER REMEDIES?
Consumer remedies are laws protecting consumers from violations.3 They are the regulatory and administrative means through which a wronged consumer can demand justice and be compensated. Generally, there are four remedies available to a consumer when services do not meet the standard stated in a contract. They are the rejection of products and request for money as long as the complaint is made within a reasonable time; damages; repair or replacement; and refund.4 This means that where a product like a Subscriber Identity Module (SIM) is faulty (due to a manufacturing error), a consumer has the right to ask the network operator to fix the SIM and correct the error within a reasonable time. If the error is a major one, the consumer can ask for a repair, replacement or refund.5
- THE TELECOMMUNICATIONS CONTRACT
The telecommunications contract excludes itself from the principle of privity seeing that a consumer is referred to as a person who subscribes to and uses a communication service.6 Thus, an employee who uses the internet service of his office cannot have a right of action over the service although his boss can if he is a direct subscriber. Since consumers have the liberty to contract with any licensee they want and refuse to go ahead with an agreement that does not favor them, licensees must supply or make available on request a copy of the agreement which will be written in a plain and clear language. Not only must it be clear, it must be devoid of jargons so that the consumer can have a full understanding of what the service is about before agreeing to it.7
In addition, if the licensee's service depends on another to be effective, the consumer must be informed of it. Information must be given on the service quality levels, how long the consumer has to wait to be connected for the first time, and the service areas and coverage maps.8 It is a must that the licensee gives precise information on any compensation, refund, arrangement, procedure, and dispute resolution mechanism that may apply if contracted quality service levels are not adhered to.9 As such, where services are combined with one or more other services or products, the licensee shall describe each service and product, and the price it would collect for each component if it sells the service component separately.10 A licensee may not escape liability when it operates bundled services with third parties. Thus, it would be liable for the effective performance of the entire package including service support, maintenance, complaints handling, and dispute resolution of the total package. Where services are likely to be upgraded or migrated, the contract must contain full and unambiguous information on it including changes in service performance and how much is to be paid for such.11
Before the contract is made, the consumer must be aware of the applicable rates or charges, the composition of the charges and how to calculate them, cases that bring about the charges, if the charge will change regularly, and how the consumer would be informed of such changes.12 The contract must state when the contract starts existing, what the minimum contract term is, the minimum contract period as well as the manner and consequences of terminating the contract. In cases where the licensee allows early termination, it must state the amount or means used to calculate the charges for the early termination. Certain terms and conditions must be stated and they include terms and conditions for the renewal of the contract, disconnection and reconnection as well as the fees for both, the refund of any deposit, for cases that may necessitate or cause the interruption, withdrawal or discontinuation of the service, and for the delivery, installation or activation of the service.13 The licensee must also inform the consumer of contractual warranties as regards the services or products if there are any. Where a copy of the warranty is not provided with the products, the licensee shall give information on how and where to obtain it.14
4.0 The Legal Framework for Consumer Remedy for Poor Quality of Service in Telecoms Contract in Nigeria
The laws which provide redress via diverse mechanisms for aggrieved subscribers include and are not limited to the Nigerian Communications Act 2003, the Consumer Code Practice Regulations 2007 and the Quality of Service Regulations 2013 (although a draft for 2023 exists).
4.1 The Nigerian Communications Act 2003
Section 104 of the Act states that all service providers shall meet the minimum standards of quality of service that the Commission may specify and publish regularly as well as deal reasonably with consumers and address their complaints. Section 105 empowers the Commission to use any of its powers as provided by the Act to resolve complaints on customer service and consumer protection revolving around quality of service or a licensee's failure to adhere to a consumer code. It also has the power to make procedures or guidelines that aid the making, receiving, and handling of complaints about the conduct of the licensee's business. If it deems it necessary, it may set up alternative dispute resolution procedures for the resolution of disputes if the consumer has exhausted all the dispute resolution procedures set up by the licensee before presenting his complaint to the Commission.
Section 106 enables the Commission to empower an industry body to be a consumer forum and prepare a consumer code. However, such consumer code only becomes effective when the Commission approves and ratifies it. The Commission also requests licensees to make individual consumer codes which would also be subject to the Commission's approval and ratification. The consumer code would then be published by both the licensee and the Commission and notice of it shall be advertised in at least one national daily newspaper15 and it may be reviewed and ratified yearly by the Commission.16
A consumer code made by the Commission, a consumer forum or a licensee shall state processes for
(a) meeting consumer requirements reasonably
(b) hearing complaints and disputes through cheap arbitration modes other than courts and the compensation of customers when the consumer code is breached; and
(c) the protection of the consumer's information.
The consumer code shall also include provisions on matters like more options that open to a consumer who is not satisfied with how the licensee handled the complaint, precise details of compensation and refund programs that the licensee offers its customers, information on services, rates, and performance, the provisioning and fault repair of services, the advertising or representation of services without evading information on customer charging, billing, collection, and credit practices. Since the list is not exhaustive, it may include other provisions which the Commission believes affect consumers.
4.2 The Consumer Code of Practice Regulations 2007
The Consumer Code of Practice Regulations 2007 sets minimum standards and requirements for the provision of services although there are diverse types of licensees providing and consumers using wireless, fixed line, telephony or data services. The Regulations have a general consumer code of practice17 which provides for the provision of information to consumers as regards service contracts, description of services, pricing information, contract term and termination, product warranties and maintenance, provision of services, fault repair and service interruption, operator assistance, directories and directory assistance, special measures for consumers with disabilities and access to emergency services.18 As such, licensees shall do their best possible to give warning in advance of expected disruptions of service. Details of the disruption of the services, communities affected and compensation if it would be appropriate in such an instance must be stated.19
The licensees have the right to prepare individual consumer codes themselves but they must include the General Code's terms and conditions or provisions that are as favorable to consumers as the General Code is.20 Following the stipulation of Section 106 of the NCA 2003, the Regulations provide for the advertising and representation of services,21 consumer billing, charging, collection and credit practices,22 the consumer's obligations,23 protection of consumer information,24 complaints handling25 and ultimately code compliance.26
4.3 The Quality of Service Regulations 2013 and Cases of Poor Quality of Service
The Quality of Service Regulations was made to promote consumers' rights and protect them from unethical procedures that go against the quality required of telecommunication operators and their network facilities. It identifies inadequacies in services, suggests solutions and enforces them. Schedule 1 of the Regulations discusses common consumer complaints and Key Performance Indicators (KPIs) which are expressed by the reasonable resolution time of handling the complaints. Such complaints and their ideal resolution time include:
- Charging for line rental at incorrect rates which must be resolved in less than or in 5 days.
- Charging for services not rendered which shall be resolved in less than or in 24 hours.
- Failed attempts to check or determine account balance which must be resolved in less than or in 3 hours for network related faults.
- Inability to access offered service by a qualified customer on an enabled device which must be resolved in less than or in 1 hour.
- Request for blocking of reported lost\stolen SIM cards for which subscriber ownership has been confirmed which be resolved in less than or in 30 minutes.
In the cases of nuisance such as the service provider sending or allowing unsolicited messages from unknown persons to the consumer, the service provider must give the consumer the option of opting out of receiving such messages. It should also make efforts to block unsolicited messages from third parties to the consumer. There is the need for accountability in terms of the operator meeting its advertisement commitment to the consumer as there is to be no difference between rates advertised to the rates the consumer eventually receives.
On the NCC's website, there is a draft for the Quality of Service Regulations 202327 and the entire Schedule 1 on threshold targets and key performance indicators in the 2013 Regulations are cancelled with red ink. Perhaps, some provisions in the regulations would change as the schedule in the 2013 Regulations makes provision for complaints relating to the inability to send or receive blackberry messages whereas android phones, iPhones and instant messaging applications and social media have replaced blackberry messaging in 2023.
The NCC on May 11, 2012 slammed MTN Nigeria, 9Mobile, Airtel and Globacom with a cumulative fine of One billion, one hundred and seventy million Naira ( N1,170,000,000) as penalty for the poor quality of services to subscribers in March and April of the 2012.28
Likewise, in Ogungbeje v. MTN,29 the plaintiff took MTN Nigeria Communication Limited and Airtel Network Nigeria Limited to court over the alleged illegal deactivation of SIM cards not linked to National Identity Number (NIN).
In the unreported case of Okoi Obono-Obla v. Nigerian Communications Commission and MTN Communication Nig. Ltd,30 the plaintiff complained about not getting value for his money as the service provided was erratic and unreliable and of the poorest quality as he would purchase N500 airtime which would last about thirty minutes instead of a day.
These and many more are some of the cases of poor quality of service that our national courts have had to resolve.
4.4 CONCLUSION
It is the Nigerian Communications Commission's aim to be zenith agency famed for consumer protection. This is why it ensures to do all that is necessary or incidental to promoting the highest attainable quality of service. Its scope of operation in achieving this is not limited to issues concerning charges but extends to quality equipment, enforcing compliance with its regulations as well as operating an open door policy for consumer complaints of breach of telecommunication contracts.
Following the statements in this paper, it can be seen that the Commission operates modern, efficient and world class means to remedies to consumers. Consumers are hence encouraged to make use of these reliable mechanisms in getting justice.
Footnotes
1. Chapter VII of NCA 2003
2. Regulation 1(1) Code of Practice Regulations 2007
3. https://definitions.uslegal.com/c/consumer-remedies/
4. https://www.dfalaw.co.uk/faq_type/what-remedies-does-a-consumer-have-for-defective-goods/
5. https://www.lawhandbook.sa.gov.au/ch10s04s03s01.php
6. Section 157 of the NCA 2003
7. Code 8(1) of the Schedule to the General Code of Practice
8. Code 8(2)
9. Code 8(3)
10. Code 8(4)
11. Code 8(5)
12. Code 9 (a-e)
13. Code 10(a-j)
14. Code 11 (1)
15. S 106(5) of the NCA 2003
16. S 106(6) of the NCA 2003
17. Schedule 1 to the Regulations
18. Code 6-16 of the Schedule to the General Code of Conduct 2007
19. Code 13(3) of the Schedule of the General Consumer Code of Practice
20. Regulation 4(1) & (3)
21. Code 17-20
22. Code 21-27
23. Code 28-33
24. Code 34-38
25. Code 39-49
26. Code 50-57
27. https://ncc.gov.ng/documents/1102-draft-qos-business-rules-2023/file
28. https://www.vanguardngr.com/2012/05/ncc-slams-mtn-etisalat-airtel-glo-with-n1-17b-penalty-over-poor-quality-of-service/
29. FHC/L/CS/677/2022 (https://www.chronicle.ng/2022/04/nin-mtn-airtel-sued-for-n200m-for-barring-sim-cards/)
30. Suit No. FHC/ABJ/382/CS/2010, Federal High Court Abuja, ruling delivered by Hon. Justice S. E. Chukwu on Friday, 16 November 2012. See http://www.nairaland.com/newpost?topic= 1100441
REFERENCES
- Legal remedies for Consumers of Telecommunications Services in Nigeria by E.O Ukwueze
- The Nigerian Communications Act 2003
- The Consumer Code of Practice Regulations 2007
- The Quality of Service Regulations 2013
Originally published September 22, 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.