…Minister fo Information, Lai Mohammed said NBC to be self-sufficient financially by next year, faults proposals in the bill to usurp government and ministry oversight of NBC
By Victor Osula, Abuja
The importance of independence for the National Broadcasting Commission, NBC, as the broadcasting regulator in Nigeria, in line with global standards, was on Tuesday underscored by the Institute for Media and Society at a public hearing at the National Assembly, NASS, in Abuja.
The 2-Day hearing which is being organized by the Committee on Information and National Orientation, Ethics and Values of the House of Representatives on Tuesday and Wednesday involves four other bills on the Nigerian Press Council, the Advertising Practitioners Council of Nigerian among others.
Delivering IMS’s submission at the hearing, which attracted a delegation of the Ministry of Information led by the Minister of Information and Culture, Lai Mohammed, whose ministry supervises all the agencies with bills under consideration for amendment and Speaker, Femi Gbajabiamila who declared the event open, Dr Akin Akingbulu, said independence of NBC was critical for the electoral process and democracy in the country.
According to Akingbulu, the Executive Director of IMS; “The most prominent gap today is the failure to provide for the independence of the regulatory body. Independence is essential to the functioning of the regulatory body. Lack of independence manifests in many ways, such as in skewed decision-making, inconsistencies in attention to regulatory functions, inability to protect the industry and strengthen its professionalism, inability to meet international standards and ultimately, failure to deliver its mandate. This is bad for the electoral process and democracy.”
To clarify his points, Akingbulu drew certain features from observed international standards and practices which define independence of the regulator, such as legal establishment of the regulator as a stand- alone public entity protected from interference from conflicting and competing interests with clear processes for appointments of its board, full regulatory powers and accountability mechanisms subjected to oversight by bodies like the NASS and the public.
He gaps identified in the NBC Act by stakeholders include the lack of power of the Commission to authorize broadcasting licenses held by the Ministry of Information and the Presidency, who also interfere in the appointment of the Board and the DG, give them directives and can arbitrarily remove by them.
On the pending bill, Akingbulu drew the attention of the House Committee members to 13 observed gaps in sections dealing with infringement on media freedom and freedom of expression as shown in the sections on the classification of licences; powers of NBC to refuse broadcasting license renewal; the possible clash of interest between the Consumer Protection Commission and the NBC in the regulation of competition and consumer issues; the proposal to empower the NBC to penalize late renewal of licenses and the skewed revenue sharing formula for proceeds of the proposed Digital Access Fund, DAF, as well as the likely political interference in the affairs of the Commission by the Minister of Information if allowed to participate in the regulation process and inadequacy in the proposal that NBC submits annual reports of its activity to the Minster.
He thereafter recommended the following for inclusion in the and adjustments to sections of the bill: Power of the NBC to grant license independently, exclusion of representatives of SSS and Ministry officials from appointment into the NBC board whose members should be appointment by the president in consultation with stakeholders and confirmation by the NASS; fair hearing in removal of members by the presidency and the NASS; appointment of the DG by the president after consultation with stakeholder groups and confirmation by the NASS.
Others are the removal of power of Minister to give directives to the NBC, fairness in processes of renewal of licences, equitable sharing formula of DAF to community, private broadcasting organisations and public bodies at the state governments besides the NTA, NBC and signal distributors and Federal Radio Corporation of Nigeria, FRCN, favoured in the bill.
Then there are the recommendations about membership of the board to include marginalized groups such as women, youth and people living with disabilities and the participation of the NASS in the borrowing arrangement and budgeting processes of the Commission.
Curiously, after resounding applause greeted Akingbulu’s recommendations, prompting the Committee Chairman, Odebunmi OlusegunDokun to remind the audience of the rules against clapping, some participants like former NBC DG, Emeka Ubah and Abdullahi Mohammed of a Kano based industry group adopted IMS position. Mr Lanre Arogundade, Director of the International Press Center, also adopted IMS position.
In his submission, the Minister of Information Lai Mohammed objected to many sections of the proposed NBC bill that he said tended to usurp the powers of the government and the Minister to give directives to the NBC.
According to him, a section which directs the NBC to pay into the federation account all monies collected, “ was a short view of the Commission because very soon the NBC will exit the number of parastatals whose salaries are paid by the Federal Government,” adding that the NBC will soon begin to pay for its overhead, salaries and operations, so the proposal in the bill that the Commission pays moneys received into the federation account will be a draw back.”
The minister who disclosed that as from next year the NBC will be self-sufficient financially, however asked for time to iron things out with the Minister for Finance.
Mohammed also frowned at sections of the bill dealing with application for radio, TV station ownership, including cable TV services digital satellite, IPTB, and said, “I wish to add that internet broadcasting, twitter and online broadcast media should be included because we have to monitor content.”
He also contended with the issue of classification of licenses, power to grant signal distribution to the NBC and said “power to grant license is given by the law so this should not come under classification. There are existing protocols on what to do. Government has the right to remove them even though some may enjoy the licenses. He also faulted the section on power to grant spectrum, saying that “spectrum do not belong to the licensee but the government and the impression given in the bill is that it can be enjoyed forever. At any time, the government can decide who to give it to,”
Others who appeared at the ongoing hearing are the APCON and Advertising Organsations, Broadcasting Organisation of Nigeria, BON, and Radio Television Theatre and Art Workers Union of Nigeria, RATAWU. Honourable Peter Akpatason, Deputy Leader of the House of Representatives represented Gbajabiamila.
FULL TEXT OF IMS proposal and recommendations of the Bill to Amend NBC Act:
Protecting the Regulator’s Independence in the National Broadcasting Commission (NBC) Act
Text of the Submission at the Public Hearing on Amendment of the NBC Act, Held in the House of Representatives, National Assembly, Abuja, 16-17 June 2021
By Dr. Akin Akingbulu Executive Director
Institute for Media and Society, Nigeria.
Protecting the Regulator’s Independence in the National Broadcasting Commission (NBC) Act
Text of the Submission at the Public Hearing on Amendment of the NBC Act, Held in the House of Representatives, National Assembly, Abuja, 16-17 June 2021
By Dr. Akin Akingbulu Executive Director
Institute for Media and Society, Nigeria.
The National Broadcasting Commission (NBC) Act is the major legislation on broadcasting in Nigeria. It is one of the key policy instruments through which the liberalization of the broadcasting industry was effected in the 1990s.
Originally promulgated in 1992, as NBC Act 38, the law was amended seven years later with the NBC (Amendment) Act 55 of 1999. Both original and amendment are now incorporated as the NBC Act in the Laws of the Federation of Nigeria.
The law provides for the establishment and operational framework of the National Broadcasting Commission (NBC), a single-industry regulator for broadcasting. It also specifies a wide range of regulatory functions for the organization.
During the 22-year period after the last amendment of the law, there have been significant developments which include local stakeholders’ calls for review attention to gaps in the law and the setting of standards for broadcasting legislation and regulation by international policy making institutions.
The most prominent gap in the NBC Act today is its failure to provide for the independence of the regulatory body. Independence is essential to the functioning of the regulatory body. Lack of independence manifests in many ways: such as in skewed decision-making, inconsistencies in attention to regulatory functions, inability to protect the industry and strengthen its professionalism, inability to meet international standards and, ultimately, failure to deliver on its mandate. This is bad for the electoral process and democracy.
There have emerged from international standards and practices, features through which the independence of the regulator is distinguished. The features include the following:
i. The regulator should be a full entity, that is, it should be established by law, stand as a full body, separate from other public entities and protected from interference from political, economic and other interests.
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- It should have full regulatory powers, including the power to grant and renew licences and sanction licencees.
- The appointment process of its governing board and leadership should be guided by clear and explicit rules; done in a fair, transparent and participatory manner; structured to ensure that the selection considers relevant expertise, experience and inclusion; and protect security of tenures.
- Accountability mechanisms: should be set and activated through making the body accountable to oversight bodies and the public.
Guided by the foregoing features, stakeholders identified many gaps in the NBC Act, among which are the following:
1. Section 2 of the Act prescribes the powers of the NBC, but snatches away one of the most important powers of a broadcasting regulator: the power of authorization of broadcasting licences. It only receives and processes applications. The approval segment of the licensing process is done between the Ministry of Information and the Presidency where it is finalised. This makes the regulator a post office and its technical/professional decisions subject to political considerations. In the absence of set timelines, the process keeps applicants waiting for long periods.
2. Section 3 of the Act states the composition of the governing board of the Commission; a Chairman, ten (10) other members who represent various groups plus the Director General. They are appointed by the President on the Information Minister’s recommendation.
But NBC is a Commission without Commissioners. The improper designation of members of the board ignores the reality of the modern age that designation of governance organs or positions impact the corporate status and identity of public agencies, especially regulatory bodies.
The appointment process provides no space for participation of the legislature and other stakeholders. It does not provide for the selection of marginalized groups such as women, youth and people with disability.
3. Section 4 deals with the governing board’s tenure of office.
The chairman and members have a term of three (3) years, renewable for one further term only. When the importance of this body is considered and this tenure is compared to that of the director General (Five years, renewable many times), this is a lop-sided arrangement.
The board members have no security of tenure. For example, a member can be arbitrarily removed by the President “if he is satisfied that it is not in the interest of Commission or in the interest of the public that the member should continue in office”
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4. Issues on the proceedings of the governing board are dealt with in Section 3(b) and 3(c) of the First Schedule of the Act. They provide that the board may function notwithstanding any defect in the appointment of a member and the participation in its proceedings of a person not entitled to do so.
This gives back-door entry into the board for strange persons. It implies that ineligible persons can legitimately participate in the board’s activities without legal consequences.
5. Section 5 of the Act states the mode of appointment, tenure and functions of the Director General. The appointment is done by the President on the Minister’s recommendation. The National Assembly and other stakeholders do not participate in this process. The stipulated tenure makes a mockery of term limits, by stipulating “five years and renewable for such further periods as the President may from time to time, determine”
6. Section 6 provides for the Information Minister, the power to give directives to the NBC, saying that “it shall be the duty of the Commission (NBC) to comply with such directives”. This is a power to hijack the regulator’s powers and perform its functions.
7. Section 7 speaks to service conditions for the employees of the regulatory body. In the face of the demanding conditions of regulatory performance in the present era, there is no provision for concrete enhanced welfare framework.
8. Under Section 9 are provisions on the power of the Commission to grant licences. Information on the licensing process is not widely available. The ground of “national or public interest” on which the regulator may sometimes refuse licence renewal is a contested concept and explanations will be useful to enable the public know specific situations when this would apply. Developments have overtaken some of the components of the template of the licence application form. An appeals mechanism is absent in the regulatory sanctions process.
The present bill “creates a new Section 9A titled Classification of Licences, under which it specifies categorises of Broadcasting Services Licences. These categories include the following: ‘’IPTV, IP Radio, EPG, Online News Related Licences, Internet Broadcasting (Webcast), Over the Top Television (OTT) and any other class of licences as may be determined by the Commission’’. Inclusion of these categories will be very injurious to media freedom and freedom of expression.
9. Section 13 deals with the Commission’s power with respect to licences.
However, the present Bill proposes new sections 13A and 13B which deal with renewal of licence and failure to renew licence, respectively.
Section 13A (2) (b) empowers the NBC to refuse a broadcasting licence renewal application if the NBC has drawn a licencee’s attention to infringement and exercised its power of sanctions over the licencee on three or more occasions.
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Section 13A (4) provides that where a licence renewal application is made to NBC, lesser than six months prior to the expiration of the licence, NBC shall Not renew the licence unless the licencee pays, ‘’in addition to the prescribed licence fee, a penalty as may be determined by the commission, for each day during which the default continued’’.
Section 13B states that licences that are revoked or not renewed should be surrendered to the Commission. The penalty for failure to do so is a fine of N5 million upon conviction. All of these three provisions are harsh provisions.
10. Several Sections (14,15,18 and 19) deal with the financials of the Commission. Section 14 which focuses on the Funds of the Commission, fails to recognise that government appropriation from dedicated direct source is the model that conduces to secure funding and independence of the regulator. For Section 15, where the focus is on radio and television licence fees, there is need for strategic legislative initiative to remove the hands of local governments from the collection of this important funding source.
11. The present bill creates a new revenue source for the broadcasting industry, which it calls Digital Access Fund (DAF), to be established, operated and controlled by the NBC. The seven (7) members of the Board of Trustees of this Fund are to be drawn from the following constituencies: Advertising, News, Law, Academia, Content Production, Entertainment and Finance. There is the gap of inclusion: where is the provision for women, youth and people with disability in this structure?
Secondly, the bill proposes a sharing formula for the proceeds of the Digital Access Fund (DAF) as follows:
- a) 40% to Signal Distributors
- b) 10% to Federal Radio Corporation of Nigeria (FRCN), the federal radio broadcaster.
- c) 10% to Nigerian Television Authority (NTA), the federal TV broadcaster.
- d) 40% to the National Broadcasting Commission (NBC), the regulator
This formula provokes some questions: Where is the space for other broadcasters such as the state government, private/commercial and community broadcasters? In the uncertainties of data and projections of revenue for the post-DSO period, shouldn’t we tarry a little on setting revenue sharing proportions? Should the revenue sharing formula even be a legislative matter?
12. For Section 18, which deals with the borrowing power of the Commission, there is no acknowledgement of the reality that the National Assembly is key among the institutions to be engaged in the borrowing powers.
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13. Also, Section 19 which is on Annual Estimates, Accounts and Audit, requires the Commission to submit its budget to the President for the succeeding year. The legislature is excluded from the process.
14. The present bill creates new Sections 19A and 19C which empower the NBC to regulate Competition and Consumer Protection issues, respectively. It is observed that there already exists a public entity with statutory responsibility for regulation of these issues. This creates a situation of concurrent jurisdiction which should be carefully managed.
15. The present bill creates a framework for conduct of public inquiry by the Commission. Section 19E (4) provides that where the Commission decides to hold a public inquiry, it shall publish the notice, “in the manner that it deems appropriate”. For the purpose of accountability, this is inadequate.
16. Section 20 requires the Commission to prepare and submit an annual report on its activities to the Information Minister. This is inadequate. Reporting is an important accountability mechanism. Annual reports and other reports by the regulator should be disseminated to institutions such as the National Assembly and the public.
17. The power of the regulator to make regulations is challenged again in section 23 which provides space for the Information Minister to participate in the regulation- making process. This is another case of political interference.
In response to the identified gaps, we recommend the following amendments:
1. Section 2(1)(b) should provide for the Commission the power to approve licences without reference to other government organs, while section 2(1)(c) should be
removed.
2. In section 3, the Board members should be properly designated as Commissioners; representatives of the State Security Service and the Ministry of Information should be excluded from membership of the Board; members of the Board should be appointed by the President upon consultation with the groups that they represent and confirmation by the National Assembly; the appointment dates of the board members should be staggered; the membership should include women, youth and persons with disability; and ineligibility criteria for membership should be specified.
3. In section 4, the law should provide a five-year term renewable for only one further term for the Board members; specify conditions for possible removal of members; outline a removal process which includes fair hearing and the participation of the board, the Presidency and the National Assembly.
4. The provision in the First Schedule of the Act which allows the participation of ineligible persons in the Board’s proceedings, should be removed.
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5. On the appointment of Director General, Section 5 should be amended to provide that: the DG shall be appointed by the President upon consultation with broadcasting industry stakeholder groups and confirmation by the National Assembly; his/her tenure shall be five years renewable for one further term; ineligibility criteria for the office should be specified; the process of removal from office should involve the president, the Board and the National Assembly and include fair hearing.
6. The power to give directives to the Commission, vested in the Minister of Information in Section 6 should be removed and replaced with powers which include policy formulation for the broadcasting sector, the negotiation of international agreements, notifying the commission of the policy direction of government and ensuring that the independence of the Commission is protected at all times.
7. Section 7 should be strengthened by providing for review of the remunerations and allowance payable to the staff of the Commission.
- Some new provisions should be added to existing ones in Section 9 which deals with the commission’s power on granting of licences. These are that: the Commission should periodically publish its licensing process; provide regular feedback to licence applicants; specify situations that could warrant licence denial; ensure transparency and full independence of the regulator if taking decision on revocation of licence; review the template of application form for licence, and create space for appeal of regulatory decisions.
- The inclusion of the following among categories of broadcasting services licences will be injurious to the civic space, freedom of expression and media freedom in Nigeria: ‘’IPTV, IP Radio, EPG, Online News Related Services, Internet Broadcasting (webcast), Over-the Top Television (OTT), and any other class of licences as may be determined by the Commission’’. They should be removed.
10. Exercising regulatory power of sanctions over a licencee up to three (3) times during a 5-year period should not be enough ground to refuse licence renewal. Hence, the new Section 13A(2)(b) in the bill should be removed.
The penalty for failure to make licence renewal application six months to licence expiration is too harsh, hence Section 13A (4) of the Bill should be reviewed.
Why require the return of expired licence? It is unnecessary. Hence, Section 13B of the Bill should be removed.
11. Section 14 should be amended to provide that government appropriation to the NBC should be through the first line charge.
12. Section 15 should be amended to provide that the collection of radio and TV licence fees could be outsourced by the Commission; and the proceeds
should be distributed to NBC, broadcasters in the public,
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private/commercial and community sub-sectors and other players which have emerged in the digital transition period. Additionally, section 1(b)
of the Fourth Schedule of the Constitution should be amended to removed the hands of local governments from the collection of the fees.
13. The provision on Digital Access Fund (DAF) in the Bill should be reviewed as follows:
a) The membership of the Board of Trustees should include representatives of industry groups such as BON, NUJ, RATTAWU, etc. and marginalised groups such as women, youth and people with disability (PWDs)
b) The sharing formula for the proceeds of DAF should be removed and left for administration – level handling to be done by the NBC, working with the DAF
Board and industry stakeholders.
14. The participation of the National Assembly should be prioritised in the borrowing arrangements articulated in Section 18 as well as in the budgeting process provided for in section 19.
15. Where the possibility of concurrent jurisdiction between NBC and other agencies is created, the law should provide for cooperation mechanisms. Hence Section 19A and 19C of the Bill should articulate such mechanisms between NBC and Federal Competition and Consumer Protection Commission.
16. Informing the public of plan to conduct public inquiry by NBC should be done through media that have extensive nationwide reach. Hence, Section 19E (4) of the bill should be reviewed to include the publishing of notice of public inquiries through such media as newspapers, radio and television with national circulation and coverage.
17. In addition to annual reports provided for in Section 20 of the Act, the Commission should prepare periodic reports, submit to the Presidency and National Assembly, and disseminate to the public.
18. The provision in Section 23 that gives room for the Minister to participate in the making of regulations by the Commission is a tool of political interference. It should be removed.
Conclusion
The foregoing submissions have emerged from the expressed desire of stakeholders and provisions of international instruments under which Nigeria has commitments. If accepted, they will re-position our country’s broadcasting legislation to contemporary global standards.
We implore the Committee and the entire House of Representatives to study, accept and include our recommendations in the NBC Act.
