FOI: PUBLIC INTEREST IN DISCLOSING THE QUALITY OF SERVICE (QoS) REPORT

For many years telecommunications consumers in Nigeria have not had the opportunity to compare QoS levels of the various mobile network operators (MNOs) operating in Nigeria, but however towards the ending of 2012 and in a marked deviation from previous trend, the Nigerian Communications Commission (NCC), the telecommunications sector regulator published the annual QoS report for year 2011. This singular act seems to be hinged on NCC’s power of monitoring and report under § 89 of the Nigerian Communications Act, 2003 (NCA).

In this article, I examine the public interest in disclosing the QoS report pursuant to a freedom of information request under the recently enacted Freedom of Information Act 2011 (FoIA).

The meaning of Public Interest
According to Webster's New World Dictionary, public interest means “the people’s general welfare and well being; something in which the populace as a whole has a stake.” In the Communications realm this definition will naturally transpose to mean “the Communications consumer’s well being or something in which the Communications consumer as a whole has a stake.”In essence something “in the public interest” is simply something which serves the interests of the public.

Section 25 (1) (c) of the FoIA provides “where the Court makes a finding that the interest of the public in having the record being made available is greater and more vital than the interest being served if the application is denied, in whatever circumstance.” The effect of this provision is that where an interest in non-disclosure competes with public interest in disclosing an information, the court can only compel disclosure where it is of the opinion that the interest of the public is greater served than any interest being protected. In such circumstance, public interest considerations will generally refer to considerations affecting the good order and functioning of community and governmental affairs, for the well-being of citizens. In general, the public interest consideration is one which is common to all members of the community (or a substantial segment of them), and for their benefit.

The nexus between Public Interest and Quality of Service
The QoS report is a document that evidences or reports the measurement of certain indicators by both Communications licensees and NCC in accordance with a defined measurement method, and it is a detailed account of the QoS level of aspects of a service being offered by a Communications licensee and provides a clear indication of what consumers experience when using a particular network or Communications service, in the words of NCC, “these QoS standards [and report] ensures that consumers continue to have access to high quality telecommunications service by setting basic minimum quality levels for all service providers.”

The emphasis placed on making the QoS report available to the public is exemplified in § 2 subparagraph d of the draft Quality of Service Regulations 2011 which provides: “Making information available to help with informed Consumer choice of services and Licensees.” From this provision it is noted that Communications consumers are entitled to receive information concerning QoS to enable them make an informed choice. In particular, it is important for consumers to base their choices of services on objective evidence rather than on personal anecdotes. To be able to make an informed choice, consumers must have access to material information, in essence the Quality of Service Regulations regards QoS measurements (and reports) as material information. The requirement for material information is central and goes to the root of any consumer protection measure.

In the context of Communications services, the QoS report indicates the level of QoS experienced by consumers, it therefore represents information that the average Communications consumer needs in order to make an informed transactional decision, see The Office of Fair Trading v. Purely Creative Limited & 8 Ors [2011] EWHC 106 (Ch), para. 73. In essence it is material information that will guide owners of the over 122 million connected (GSM and CDMA) lines in Nigeria in making an informed choice about the service provider or service they intend to subscribe to.

No doubt there is public interest in protecting Communications consumers. As set out in the National Policy on Telecommunications, NCC is charged with ensuring that public interest is protected in the Communications market. It is submitted that the “public interest” contemplated under the National Policy on Telecommunications would encompass the broad objectives of the NCA which inter alia provides in § 1 (g) that the rights of consumers are protected. In this regard, it is also noted that the requirement for Communications licensees to comply with QoS standards is a consumer protection measure embedded under § 104 of NCA. As rightly well put by NCC, “these QoS standards [and report] ensures that consumers continue to have access to high quality telecommunications service by setting basic minimum quality levels for all service providers.” Thus in circumstances where the QoS report is not available, consumers of mobile telecommunications services are not able to ascertain whether particular service providers have been able to achieve the “minimum quality levels” set by NCC and are thus denied the opportunity to be able to make an informed choice from the use of this information.

Clearly non-disclosure of the QoS report will significantly deprive mobile telecommunications consumers of the opportunity to make a free or informed choice about mobile telecommunications services and would make it virtually impossible to confirm claims of service providers about their QoS standing. A consumer’s right to access information and freedom of choice is reinforced by United Nation General Assembly Resolution 39/248 Guidelines for Consumer Protection adopted on 9 April 1985 in particular § 3 (c) which provides “Access of consumers to adequate information to enable them to make informed choices according to individual wishes and needs.” It is also submitted that the consumer’s right to access information as users of products or services constitute legitimate grounds of public interest to justify the disclosure of the QoS report. See Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR I-607, para 34.

In Re Kenmatt Projects Pty Ltd and Queensland Building Services Authority (1996 S0094, 27 September 1996), a building contractor contested access being given to certain files held by the respondent Building Service Authority relating to disputes which have arisen concerning the building contractor’s works. The building contractor argued that the files qualified for exemption under § 45 (1) (c) of the Queensland (Australia) Freedom of Information Act 1992 which exempts from disclosure; information concerning the business, professional, commercial or financial affairs of an agency or another person and which could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of such information. The Queensland Information Commissioner found that public interest considerations favouring disclosure outweighed any such apprehended adverse effects. In particular the Information Commissioner held at para 48 that:

...there is a significant public interest in members of the public, many of whom are potential homebuyers or home renovators, having access to information about the performance of builders, and their responses to complaints, to enable them to make informed choices about the builder they engage. I believe that it is valuable for consumers to have before them as much information as possible about the performance of builders they might choose to engage.

Conclusion
It is clear that public interest considerations would favour the disclosure of the QoS report, no doubt if awareness of the QoS report were to be made available to the public, service providers would strive to achieve the best results, and consumers would ultimately be the winners. In concluding the words of NCC during the public hearing on the draft Quality of Service Regulations 2006 aptly comes to mind and I quote “The primary purpose for publishing QoS information is to provide [consumers] timely, relevant, accessible, accurate and comparable information that would enable them make informed decisions.”

An Overview of the Draft Quality of Service Regulations 2011

Good news coming from the Communications sector as the Nigerian Communications Commission (NCC) finally publishes a draft copy of the Quality of Service (QoS) Regulations. The QoS regulations will establish the quality of service standards and or parameters and associated measurement, reporting and record keeping tasks imposed on categories of Communications licensees pursuant to Section 104 of the Nigerian Communications Act 2003 (NCA). QoS according to the International Communications Union (ITU) is the “collective effect of service performance which determine the degree of satisfaction of a user of the service”. In other words the QoS will provide an indication of what customers experience when using a particular network or service. The QoS parameters, (also known as QoS metrics, QoS indicators, QoS measures or QoS determinants) are used to characterize the quality level of a certain aspect of a service being offered and ultimately the customer satisfaction. These QoS parameters primarily relate to services and service features and not to the technology used to provide the services. For mobile telephony services, typical examples of parameters reportable are; call set-up time; blocked call ratio; billing accuracy and dropped call ratio. Most parameters are in principle applicable to service provided via telecommunications networks however others are only applicable to specific services depending on the technical aspects of the provision of those services, e.g. broad band internet. It is important to note that these parameters are end-user/customer orientated in that they can be personally perceived by the customers themselves.

Licensees under the Communications Act 2003 are required under the regulations to report, measure (these parameters in accordance with the defined measurement method) and submit the measurements to NCC for publication within the stated period. Only two services are subject to reporting in accordance with the reporting parameters under these regulations. They are; Wireline Services (fixed wireline telephone services for end users) and Wireless Service (which are mobile/wireless telephone services for end users and mobile internet/data services. The targets or key performance indicators (KPIs) have been defined by the regulations as the “a value that is reached by a given parameter where the relevant service identified in these regulations…. In other words, the KPIs are the range of values to be obtained for a particular service to be regarded as satisfactory.

The reporting period when Communications licensees are required to perform QoS measurements, reporting and record keeping is every month starting from the 1st day of a calendar month to the last day or as NCC may determine while the geographical areas for which QoS measurements are to be reported and recorded by are thirty-eight (38) in all. They are; a specific geographical area (1), the various states of the federation (36) and the Federal Capital Territory (1) which are to be taken separately unless the prior written approval of NCC is obtained for two or more reporting geographic areas to be combined into one reporting area. The measurements taken and reported are to be submitted to NCC with one week after the end of the reporting period. Where so directed by NCC, Communications licensees will publish the measurements within one month after the end of the reporting period. Communications licensees are also required to retain the QoS data including all measurements and related records for a minimum of twelve months after the end of the reporting period.

It is important to note that these regulations impose on Communications licensees the obligations to resolve a consumer complaint within the time stated. Where this obligation is not met, then the consumer has a right to be compensated and NCC may impose a fine on the offending Communications licensee. A Communications licensee will also be sanctioned where the rate of occurrence of a particular complaint exceeds the maximum number allowed under the regulations.

NCC may decide to publish all or part of the QoS measurements received from Communications licensees and such publishing must be done within two (2) months after the end of the relevant reporting period. The regulations also empower NCC to investigate some or all the QoS data received or retained by Communications licensees.

It is an offence under the regulations where a Communications licensee; fails to perform QoS measurement and record keeping, fails to attain the target set for a parameter and the service, fails to submit the QoS data within the time specified, submits or publishes false or misleading information about the QoS measurements and obstructs or prevents an investigation or collection of QoS information by NCC. The regulations empower NCC to take one or more of the following enforcement measures against communications licensees who commits any of these offences. These enforcement measures are; requiring that the licensee submit and publish additional information about its QoS measurements including (but not limited to) implementing a remedial action plan to improve its QoS KPIs, issuing directions pursuant to its power under S. 53 of the NCA including but not limited to effect that consumers been compensated for its QoS, imposing fines on licensees in accordance with the regulations.

With the break neck competitions currently experienced in the Communications sector, it may seem fair to argue that QoS is the resultant effect of the ongoing tariff wars between incumbent licensees, but then cheaper tariffs should never be sacrificed at the expense of poor QoS and in the same breath Communications services should be affordable by all. The QoS standards are indeed coming at a time when the QoS levels and Network Performance are both at its lowest. These standards will serve as a consumer protection measure on one hand, by enabling the average customer to make informed choices about the quality and price of a particular mobile telephone service and on the other hand, improve competition by ensuring that measurements accurately reported and published will discourage mobile network operators from service quality that falls short of the benchmarks, what remains to be seen is how far NCC is willing to ensure that licensees abide by the strict letters of these regulations.

An Innovative way of Improving Quality of Service in Mobile Telecommunications Service with the Nigerian Sovereign Wealth Investment Fund

With a teledensity of 64.70 per cent and a total connected lines (GSM and CDMA) of 115,140,681 (and still counting), network congestion has continually been the bane of poor quality of service (QoS) levels in mobile telecommunications services in Nigeria, Africa’s largest telecommunications market. This article seeks to propose an innovative way of applying the Infrastructure Fund created by the Nigerian Sovereign Wealth Authority Act to fund projects expanding mobile network capacity by building additional base stations. This investment decision would not only be consistent with the statutory objective of assisting the development of critical infrastructure in Nigeria that will attract and support foreign investment, economic diversification and growth, but would have the resultant effect of improving the QoS levels currently experienced in mobile telecommunications service in Nigeria.

On the 10th of May, 2011, the Senate passed the Nigerian Sovereign Wealth Investment Authority Bill into Law, this was subsequently followed by passage of the same Bill by the House of Representatives on the 19th of May, 2011. The Bill now an Act establishes the Nigerian Investment Authority which is statutorily charged inter alia with the mandate to enhance the development of Nigerian Infrastructure by establishing the Nigerian Infrastructure Fund. The Nigerian Infrastructure Fund is part of the Nigerian Sovereign Wealth Investment Fund and is primarily set up to support through investment predicated financial returns the development of basic, essential and efficient critical infrastructure in Nigeria (such as mobile telecommunications networks) in order to stimulate the growth and diversification of the Nigerian economy and create jobs for Nigerians.

This article proposes that part of the Infrastructure Fund should be applied to funding projects expanding mobile networks by building additional base stations only in geographic areas where QoS parameters such as network coverage, service accessibility and service retainability are perceived by mobile telecommunications users to be low. The proposed structure would involve the grant of long term (say 25 years) soft loan to cover at least 70 per cent of the cost building these base stations to the project company or the Special Purpose Vehicle (SPV) set up by Mobile Telecommunications Service Providers in Nigeria. This SPV would be specifically incorporated to build-own-operate (BOO) the additional base stations throughout its lifecycle. In line with this arrangement, the project company would also be required to enter into a long term Infrastructure Service Agreement with the existing mobile telecommunications service providers (both GSM & CDMA service providers). This contractual arrangement is similar to an Offtake contract or Power Purchase Agreement (used for a project producing electricity) which assures; on one hand, the GSM & CDMA service providers (the purchasers) that these mobile networks will always be available and on the other hand, that the SPV will have a ready market to lease out the base stations on a long term basis at a preagreed price.

As this is a type of public sector funding, arguments against this approach would contend that it lacks the discipline inherent in private sector financing. Typical due diligence undertaken where a private sector lender is involved usually entails the careful evaluation of all the risks involved in the project and their proper allocation to parties other than the SPV. This practice is derived from the principle that risks should be allocated to the party best able to manage it; however the argument supporting this investment approach contends that the Infrastructure Fund would provide a form of low-cost public sector finance for mobile network expansion that retains the benefit of private sector management and control (since the SPV is constituted by both the GSM and CDMA service providers), this is beside the fact that long term investment like this would also improve upon the return for the Sovereign Wealth Investment Authority (as the major investor), taking advantage of the fact that debt is actually cheaper than equity. The major point argued is that why not have the project benefit from the best of both worlds by having the public sector provide the project with debt, in partnership with equity stakes to be held by the private sector investors in the SPV.

Improving the QoS of mobile telecommunications services by investing in the construction of additional base stations is likely to have an effect on deciding potential locations of foreign direct investments as the nature of an economy’s overall infrastructure plays a key role in its ability to respond to changes in demand and prices or to take advantage of other resources. In terms of economic growth, additional investment in telecommunications infrastructure would see an improvement of the GNP and the production of higher value added services and products driven by the secondary or tertiary telecommunications industries. As the economy grows and telecommunications services improves, there is likely to be a correlating increase in investments by foreign companies (such as Alcatel-Lucent, Nokia, Siemens, Ericcson) dealing in modern communications technologies.

No doubt it goes without saying that telecommunications services drive the development of new businesses, as evidenced by the enormous growth throughout the world in recent years of cellular and internet-based business models. In return, the growth of these business activities would drive demand for telecommunications services, thus forming a virtuous circle. Increasingly as businesses, especially private businesses develop in Nigeria, the need to address and develop the market for advanced telecommunications services will also arise. One consequence is a strong support to the development and transition of the economy as a whole which is given impetus by the rationale for investing with the Nigerian Sovereign Wealth Fund.