Nigerian Telecommunications Law

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LANDING PERMITS FOR TRANS-CONTINENTAL UNDER-SEA OPTIC CABLES IN WEST AFRICA: CHALLENGES FOR TELECOMMUNICATIONS OUTFITS JANUARY 2009 Vol. 13: Issue 1 There is a paucity of fibre optic capability in the West African telecommunications industry. In addition to widening the digital divide between Africa and the rest of the world, this situation has resulted in slower internet connections and expensive telecommunications facilities in the subregion. Companies investing in improving Africa’s bandwidth access through undersea optic cable linkage have faced mounting challenges from the bureaucracies of African states. Generally speaking, three types of operational permits are required by companies wishing to lay undersea optic cables. The first permit is the survey permit which allows such companies access to the territorial waters, contiguous zones, and economic zones, depending on the route the cable is going to take. In order to obtain the survey permit, the applicant must furnish the country in question with certain information including route positioning that will lead to the actual positioning of the fibre optic cables, vessel details, contact phone numbers, emergency procedures, overview of the cable route, and the method that will be used in the survey, and all other such

information that the affected state may require. The second permit is the installation. The requirements are also very similar to those of the survey permit. It is often helpful for companies involved in undersea optic cable business to liaise with the embassies and permitting authorities of state. In Nigeria and Ghana, the permitting agencies are the Nigerian Communications Commission (NCC) and National Communications Authority (NCA), respectively. In the past month, both permitting agencies have granted telecommunications companies such as Main One Cable Company the right to land its intercontinental undersea fibre optic cable in Nigeria and Ghana. Main One Cable Company has since begun work on erecting an undersea fibre optic cable from Portugal to Africa. The first phase of this project spans 6,900 Kilometres and will extend from Portugal to Ghana and Nigeria with an additional 6,000 kilometres extension to South Africa and Angola in the second phase of the project. The permits represent a major landmark for the African continent, as this is the first time ever that a private sector driven undersea cable network is receiving landing licences. The development sets the stage for Main One to land its undersea fibre optic cable, in both countries, even while negotiations are ongoing with other countries along the coastal route earmarked for the undersea cable. The technological benefits are enormous. For example, it is expected that Main One Cable Company will employ the combination of Dense Wave Multiplexing Technology of 1.28 Terabits per second and

©Blackfriars LLP 2008. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.

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two fibre pairs. The granting of landing rights for undersea optic cable operators would provide open access to regional telecommunications operators and Internet Service providers. In addition to providing a major boost to Internet access on the continent, undersea optic cable connection will help to considerably minimize the difficulties of switching traffic between African countries and eliminate the inconveniences and added costs of first routing traffic to Europe. The additional benefits in terms of job creation and local content development through skills transfer in ICT and particularly networking technologies should not be under-estimated. Beyond these direct benefits, the granting of landing licenses to operators of undersea optic cables represents a sea change for the continuing growth of telecommunications regulatory capacity on the continent. Notwithstanding these obvious benefits and milestones, some problematic issues arise from the challenges faced by applicants for landing rights. The most pressing issue is the risk of non-approval of the applications for the landing rights. States in the West African sub-region have been slow to realize the benefits of an expeditious approval of applications for landing rights. The delays in processing and approving the applications have implications on financial costs and the economy in general. The second challenge arises from a misconception on the part of the authorities on the nature of the permits sought. The permits sought are better construed in international law as permissions by states rather than legal permits. Under the United

Nations Convention on the Law of the Sea (UNCLOS), state-parties to the convention are required to grant permissions on landing rights. More importantly, African state parties to the UNCLOS ought to realize that granting the requisite permissions to applicants for landing rights is beneficial to the economic and technological needs of African States. For further inquiries, please contact:

Ms. Nkeiru Onyeaso Tel: +234 808 718 0833 Email: [email protected] Fax: +234 1 2694781 Ms. Clara Ndive Email: [email protected] Tel: +234 803 323 1868 Fax: +234 1 2694781

Dr. Pius Okoronkwo Tel: +647 831 7487 Email: [email protected] Fax: +234 1 2694781

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©Blackfriars LLP 2008. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.