Comment

The considerations behind NCC’s decision to release the Draft Regulations and Guidelines separately will be appreciated; as it is considered that a single consolidated volume would adequately address the issues.
 

·          The scope and issues covered by the Regulations and Guidelines though related are different i.e one is not a repetition of the other.

·          The Commission notes the provisions of Sections 71 & 72 of the Act in respect of the need for holding public inquiries; while it is mandatory for Regulations, the need for public inquiries in respect of Guidelines is subject to the discretion of the Commission.

·          In addition to the above the procedure for the amendment of a regulation is more cumbersome than that of a guideline. While a Regulation needs to be forwarded to the Office of the Honourable Attorney General of the Federation for review and Gazetting, a Guideline is not subject to that requirement to become valid and effective.

·          The separation of the two is to give the Commission the desired flexibility and discretion in handling or ensuring necessary amendments to the Guidelines after consultation.
 

PART II OF THE REGULATION
 

Comment

Whereas the Commission inter alia undertakes to publish an up-to-date list of laboratories that it shall find suitable for certifying equipment as meeting its acceptable specification, the regulation is silent on the status of the certified equipment from any of the acknowledged laboratories and may even prescribe that the certification should form part of the ground for exception from type approval under Part 7 Regulation 19.
 

Response

The Regulation is not silent on the status of the certified equipment. Regulation 16 obligates the Commission to maintain the List of approved equipment type pursuant to the provision of Regulation 5. Furthermore, Regulation 30 defines Type Approval.

It should be noted that laboratory certification of equipment is a means to an end and not an end by itself. The ultimate exercise or result is the type approval of equipment.
 

Comment

In accordance with the requirements of section 4(2) of the NCA, and the need to assure adequate representation across equipment categories and technologies, it was recommended that the publication of eligibility criteria and other guidelines for convening the Working Group on Equipment Standards should be done.

It was also,  recommended that the Commission should make a commitment to the use of the knowledge and expertise of the Working Group in Regulation 8 as opposed to the discretionary reference implied in the draft provision.
 

Response

The Commission will at all times continue to carry out its functions and exercise its powers in accordance with the provisions of the Act particularly Section 4(2). The Commission has the over all responsibility for the success of the industry and will ensure that only credible persons with the requisite experience and knowledge of telecommunications issues particularly on equipment standards are selected and appointed to serve on the Working Group.

It should however be pointed out that the recommendations of the Working Group is advisory.
 

Comment

In order to assure transparency in accordance with section 4(2) of the NCA, it is considered that publication of eligibility criteria and guidelines for approving and designating Test Laboratories will assure regulatory certainty.
 

Response

Publishing the list of laboratories should provide regulatory certainty. The intention is that the Commission should pro-actively designate laboratories in an open manner, not wait for Equipment Holders to propose them. 

The Commission, if and when deemed necessary may publish how the laboratories have been accredited.
 

Comment

To assure regulatory certainty and administrative due process, it should be stated in the Regulation that  “The Commission shall from time to time and in accordance to section 72 of the NCA review and if necessary modify the Type Approval Guidelines and the Type Approval Standards.”
 

Response

The provisions of Regulation 8 and Section 72 of the Act are very clear on the issue raised above. Section 72(2) of the Act states that in modifying any Regulation and Guidelines, the provisions of Section 71 of the Act must be followed mutatis mutandis. The implication of this is that where necessary, consultation will be held for the Guidelines and Standards to be modified, varied or revoked.
 

Comment

The requirement to retain supporting documentation 5 years after the last use or supply of equipment will need to be re-examined for the following reasons viz:

§          The Equipment holder may not have been the applicant for the Type Approval of the Equipment Type and may therefore not have access to the requisite supporting documentation. 

§          The 5 year period of retention does not take due cognisance of the variety of the Equipment Types being employed in the industry. 

§          The pace at which technology evolves and the fact that Equipment Types of all kinds too often become obsolete in a short period of time.
 

Response

The Commission appreciates the point been made. However, such a requirement is widespread; for example, the EU Radio and Telecommunications Terminal Equipment Directive requires retention for ten years after last manufacture. An Equipment Holder who is not the manufacturer should be able to get supporting documentation from the manufacturer. Even though equipment is rapidly superseded, it still needs to avoid interfering with more recent equipment for as long as it is used.
 

Comment

In line with best practice on the matter, the requirement of verification of test results and test documentation by factory visit or other identified process is considered unnecessary. This is because (i) Equipment testing and certification will be undertaken by credible test laboratories designated by the NCC; and (ii) There is adequate provision under Regulation 23 of the Draft Regulation for investigation of equipment should such need arise. It was therefore recommended that Regulation 14 be amended to make it applicable to test and certification undertaken by a Laboratory other than one designated by the NCC.

It should be made clear that the refusal of an application is without prejudice to rights reserved in Section 86 of the Nigerian Communications Act 2003 as has been done in other regulations.  Further, provision should be made for provisional approvals where any apparent deficiencies can be required to be rectified to the satisfaction of the Commission in accordance with international standards. In the interests of clarity and to avoid any ambiguity, we recommend that the grounds upon which an already type approved equipment may fall short of type approval standards be stated.
 

Response

The recommendation under Paragraph 1 of Operators’ comment on Regulation 14 above is noted and will be reviewed by the Commission in order to enhance efficiency in the industry.

In addition, Section 86 applies to any decision by the Commission, regardless of whether it is specifically referred to in a regulation or not. Given the simple approach to most approval applications (reliance on Declaration of Conformity materials) the Commission sees no need for “provisional approvals” mechanism. The Commission posits that the combined effects of the second paragraph of Regulation 15 (providing reasons for any refusal), Regulation 17 (revoking Type Approvals) and Regulation 19 (Equipment Holder’s reliance on previous type approvals) adequately answer the concerns expressed on the issue of the grounds on which a type approved equipment may fall short of type approval standards.
 

Comment

Regulation 15 stipulates the timeline within which the NCC would advice an applicant of approval or disapproval of a Type Approval application (within one (1) month of receiving the application). What would be the consequence of applications made and to which the Commission has not responded within the stipulated time frame or thereafter?

Furthermore, the Regulation should provide that the Commission shall state the reasons for the delay in cases where it is unable to decide on the application one way or the other within the one (1) month period, for instance, where further tests of factory visit is required but could not be carried out within the one month period. For such cases, it was suggested that a maximum of two (2) weeks period should be provided.
 

Response

The above comments are noted. The word used by the relevant part of Regulation 15 is “shall”. This makes it mandatory for the Commission to advice applicants appropriately. NCC is a regulatory body that is proactive and meets timelines specified for carrying out it regulatory functions. It will therefore comply with the period stipulated in this Regulation.

Meanwhile, it must be noted that the one month period specified is on the premise that all that is required from an applicant has been submitted but where the requirements have not been met, applicants will be so advised within the stated time line.
 

Comment

This Regulation should provide expressly specific timeline from the date of approval, within which the Commission shall make publication by way of placement of the type Approved Equipment in its list maintained pursuant to Regulation 5.

Further more, the status of pending applications be recorded, if not published to avoid submission of applications on the same equipment type by applicants.
 

Response

The above comments are noted.
 

Comment

The product in respect of which the revocation or annulment of Type Approval has been issued should as well be de-listed on the Type approval list usually published by the Commission since not all applicants of Type approval might ordinarily be availed with the notice of revocation.
 

Response

This is noted. However, it follows logically that once a Type Approval is revoked, the relevant entry will be made in the Type approval list maintained pursuant to Regulation 5 which provides that “ The Commission shall maintain and publish an up-to-date list of approved equipment Types”. It should be noted that the emphasis here is on the phrase underlined above.
 

Comment

In accordance to best practice on the mutual recognition of Type Approvals, an exemption from Type Approval is obtainable where the equipment conforms to the specified standards and has been type approved by another administration. It was recommended that Regulation19 as drafted be amended by the deletion of the phrase “for an  Equipment Type that has already been approved by the Commission, the equipment:” while a subsection (2) viz: “The equipment conforms to standards adopted by the Commission and the Equipment Holder can provide to the Commission the evidence of its Type Approval by another administration” should be added.
 

Response

This proposal does not seem to offer an adequate safeguard. Reformulating it to make the safeguard adequate would lead to a requirement to accredit administrations as well as test laboratories. The text of Regulation 19 is therefore deemed adequate as it is.
 

Comment

For greater clarity, the time-lines indicated in months in this Regulation should be duly qualified with the term “calendar”.

Further more, the regulation should incorporate a clear statement on the rules that will be applicable where the 12 months period issued the specific equipment has elapsed.
 

Response

The Interpretation Act 1990 states clearly that “months” are “calendar months”, so there is no need to change any of the regulations in this respect.

This is noted but by necessary implication, upon the expiration of the 12 months period, the exemption lapses.
 

Comment

The Regulation appears to be self contradictory; as a publication of the schedule of fees obviates the need for any request of same.
 

Response

The provisions of this Regulation are not contradictory but complimentary.
 

Comment

It is considered that for operators, Type Approval fees are covered by the Annual Operating Levy (AOL) payable by the licensee as the function in question is an integral part of the administrative services rendered by the NCC. All costs relating to equipment testing and documentation pursuant to Type Approval shall be borne by the applicant. The NCC will essentially be taking an administrative decision in relation to Type Approval which cost is insignificant. Considering that AOL is a general charge for regulatory services rendered by the NCC, it is opined that AOL covers the cost of the administrative decision by the NCC regarding Type Approval. Such fees may however apply to other entities that are not subject to the payment of AOL.

The application of the concept of administrative charges is commendable and a good example by the Commission. However, while the emphasis on administrative and operational expenses incurred is a reasonable measure of fees due for the provision of type approval services, it is an issue of concern to Equipment holders that such costs are not allowed to escalate beyond what is necessary without good reason.
 

Response

Principles of non-discrimination suggest that the fees should be independent of whether or not the Equipment Holder pays the Annual Operating Levy. The fees for Type Approval and the Annual Operating Levies are separate and distinct. The payment of AOL without more, can not  by itself preclude the payment of fees for Type Approval.   The Commission however assures that the fees will be reasonable in the circumstances.
 

Comment

For the assurance of regulatory certainty, it is recommended that Regulation 29 be expanded by appending the underlined portions as indicated below: “In considering the application of enforcement measures under Regulation 30 the Commission may take into account factors including but not limited to the under-stated provided these conform to relevant provisions of the NCA:”
 

Response

Relevant factors to be taken into consideration in enforcement matters by the Commission will always be in conformity with the provisions of the Act, the Enforcement Processes Regulation and any other relevant subsidiary legislation of the Commission. 
 

Comment

It is noted that the obsolescence of a hitherto Equipment Type may make it unsafe or inoperable.  In this regard, are there grounds for including a term of validity in the type approval of certain categories of Equipment Types? Further, are there grounds for requiring full responsibility to be taken in the safe disposal of de-commissioned obsolete equipment? If so, by whom?
 

Response

The Commission observes that time limits for these purposes will be embedded in the specific standards to be applied. Some schemes include the possibility of having time limits and periodic re-testing.

The question of safe disposal is very important but is not confined to telecommunications equipment. A general treatment is required, perhaps along the lines of the EU Waste Electrical and Electronic Equipment Directive. In addition, every equipment manufacturer, holder or user should see to the safe disposal of all equipment under their custody or control
 

TYPE APPROVAL GUIDELINES
 

GUIDELINES
No

Response

The Commission has a general policy and practice for acknowledging receipt of documents and this will apply to applications for type approval as much as to other documents. Consequently, all type approval applications will be duly acknowledged as this will be basis on which relevant time lines could be measured.
 

Comment

AOL paying entities should be exempt from payment for Type Approval. Without prejudice to the above, publication of the initial schedule of fees for the different types of equipment should be provided along with this Draft Guideline in accordance to Guideline 5. This would make for regulatory propriety as it would allow consultation on same to happen alongside consultation on the Guideline. Operators therefore request publication of the initial schedule of fees as provided in Guideline 5 to this Draft Guideline.
 

Response

As stated in Guideline 5, an initial schedule of fees will be provided and the opinion of stakeholders will be sought.