An unusual provision in the New Nigerian Broadcasting Code which seems to have been overlooked by many, is its purported applicability not only to broadcasters but also to Over-the-Top (OTT) and Video on Demand (VOD) providers. This piece briefly looks at the legality of such a provision and the ramifications of its validity or otherwise.
Ideas.memo | Lumi Mustapha
Although it first arose a few months ago, the release of the Nigerian Broadcast Commission’s (NBC) 6th Edition of the Nigerian Broadcasting Code (the New Code) has raised a number of interesting questions. Most have been focused on issues arising from the New Code’s obligation on broadcasters (including pay-TV operators) to sub-licence exclusive content that is popular amongst a large segment of Nigerians, as well as what are effective price controls on licence fees payable for such sub-licences.
One other unusual provision in the New Code, which seems to have been overlooked by many, is its purported applicability not only to broadcasters but also to Over-the-Top (OTT) and Video on Demand (VOD) providers. Thus, this piece seeks to take a brief look at the legality of such a provision and the ramifications of its validity or otherwise.
What qualifies as Broadcast?
Under Nigerian law, the term “broadcast” is defined as “the simultaneous transmission of the same message to multiple recipients. In networking, broadcasting occurs when a transmitted data packet is received by all network devices.” Some key elements can be distilled from this definition. First, there must be a message (i.e. information); second, the message must be transmitted simultaneously; and thirdly the simultaneous transmission must be to multiple recipients. Traditionally the message (or signal through which it is carried) is transmitted through wireless telegraphy (albeit this now includes wired transmission — better known as cable television/radio). But what is wireless telegraphy, legally speaking?
Wireless Telegraphy means ...
The Wireless Telegraphy Act (WTA) define wireless telegraphy as;
“the emitting or receiving….of electromagnetic energy of a frequency not exceeding three million megacycles a second, being energy which… serves for the conveying of messages, sound or visual images (whether the messages, sound or images are actually received by any person or not)...”
Based on the above definition, the wireless transmission of signals for broadcast and telecommunication both qualify as wireless telegraphy. Additionally, in defining the word “Commission”, the WTA refers to both the Nigerian Communications Commission (NCC) — when it relates to telecommunications signals — and the NBC — when it relates to broadcasts. What these provisions clearly show is that whilst both telecommunications and broadcast signals each utilize wireless telegraphy, they are nonetheless distinct means of conveying/transmitting signals and messages, and as such are regulated by separate bodies.
The NBC Act/Code
Looking more specifically at NBC’s establishing legislation, the NBC Act consistently uses the word “broadcast” in respect of the frequencies, signals, equipment, and commercial operators over which it can regulate. Of the fifteen specifically enumerated powers set out in the NBC Act, every single one, bar one, mentions/refers to the term ‘broadcast’, with the last referring to its power to approve the granted radio and television licences. Included amongst these powers is NBC’s power to establish and disseminate a national broadcasting code and regulate the quality of broadcast content. None of the listed powers, nor indeed any other provision in the NBC Act, however, makes any reference to telecommunications or any form of information communication technology.
There is no question that NBC has the legal authority to issue the New Code. However, any regulations issued by NBC can/must only be in respect of matters related to broadcasting. Clause 2.3.1(n) of the New Code states that the Commission shall receive, process, and consider applications for the grant of a broadcast licence for over-the-top and video-on-demand providers. This provision does not seem to accord with the scope of powers extended to the NBC in its establishing legislation. As earlier highlighted, the remit of the NBC is to regulate the broadcast content in the country — based on the above-cited statutory definition of the term ‘broadcast’, being the simultaneous transmission of information/signals to multiple recipients.
Any provision in the New Code purporting to cover matters that do not involve broadcasts and/or businesses engaged in such activities is, therefore, null and void. The question then becomes, whether internet communications — including those of OTT and VOD providers — constitute broadcasts within the meaning of the NBC Act?
Broadband communications involve signals being sent to one destination/recipient — namely a hosting server — from where the public can access the said server at their own convenience to consume the content/information contained on the said server(s). Based on these features (of internet-related communications and technologies) it is extremely hard to see how internet communications qualify as ‘broadcasts’ for the purpose of NBC regulation.
Whilst both telecommunications and broadcast signals each utilize wireless telegraphy, they are nonetheless distinct means of conveying/transmitting signals and messages,and as such are regulated by separate bodies.
Moreover, though internet-related communications are also conveyed through wireless telegraphy, the signals in this context are transmitted through different bands on the frequency spectrum than those used for transmission of broadcast signals/communications. OTT and VOD providers are businesses that make multimedia/audiovisual content available on-demand to the public through the internet. By definition, making content available on the internet for individual consumers to access when and how they want, does not meet the legal, technical, and commercial definition of the term broadcast.
Internet transmissions — including those from OTT and VOD operators — are arguably within the scope of the NCC’s regulatory powers and not those of the NBC. There are, however, two possible exceptions to this: re-transmissions of broadcasts via the internet; and transmissions of internet communications through television whitespace (TVW) frequencies.
Briefly, TVW transmission involves the utilization of unused frequencies in the broadcast spectrum to transmit broadband bandwidth and internet communications. It is for this reason that the NCC has necessarily partnered with NBC to administer pilot schemes of this mode of communications technology. TVW transmission raises even more questions. Questions such as: whether it is OTT/VOD providers and/or the ISPs that provide them with internet access/hosting services, that would fall under the NBC’s potential regulatory power — where internet access is facilitated through TVW? Such questions will ultimately require determination by the courts.
The audiovisual business is fast transitioning from broadcast (both terrestrial and pay-TV) to internet-based, fully on-demand, modes of distribution/transmission. In light of these market realities and trends, the majority of digital pay-TV operators have already developed web platforms/mobile applications to distribute their acquired/produced content. Most of these operators have, for the moment, only populated such platforms/applications with content from their broadcast programming — by way of “catch-up”/”re-watch” services.
Whilst, perhaps, such content (being re-transmissions/simulcasts of originally broadcast content) may arguably (still) be within the purview of the NBC, non-broadcast related content, arguably, does not. Thus, depending on how the courts interpret and apply the provisions of the NBC Act, and more particularly its powers under same, the NBC may be looking at a situation where it becomes increasingly irrelevant in the near future. It may be that NBC is also aware of this, hence its attempt, through Clause 2.3.1(n) of the New Code to exercise powers over the OTT and VOD sector.
In the meantime, it is very likely that pay-tv operators in Nigeria will accelerate the migration of their content libraries to their web-based platforms and applications. Despite the reluctance of local pay-TV operators to fully embrace/develop the local VOD market, and with the difficulties that have gripped the sector over recent months, pay-TV operators may now have no choice if they wish to continue strategies involving market-driven licensing and monetisation of exclusively acquired premium content. Given that necessity is the mother of all inventions, the new regulations may result in pay-TV operators having to work with/as VOD operators to grow the VOD market across the continent and sustain the current form of their business models.
The opinions expressed are the sole responsibility of the authors and do not necessarily represent the official position of borg.
The ideas expressed qualifies as copyright and is protected under the Berne Convention.
Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is notified.
©2020 borg. Legal & Policy Research