Lawyers: DSO’s Whitepaper Lacks Force of Law, Invalid

Lawyers have faulted the recent directive by the National
Broadcasting Commission (NBC) on the abolition of self-carriage
status by broadcast entities, saying the 2014 Digital Switch Over
Whitepaper the commission relied on to issue is an expired document
and lacks the force of law.

Ahead of the commencement of the second phase of the DSO
programme, which has proceeded in fits and starts, including two
unmet deadlines, NBC recently directed digital terrestrial
television operators to reconfigure their transmission set-ups and
transfer their carriage to either ITS or Pinnacle Communications
Limited, the licensed signal distributors, with immediate
effect.

The NBC, in a letter signed by its acting Director-General, Dr
Armstrong Idachaba, said its directive on abolition of
self-carriage is Section 10 of the 2014 DSO Whitepaper, which it
said prescribes the splitting of broadcasting activities into
content distribution and signal distribution. The commission stated
that with the split, a single broadcaster can no longer combine the
functions of content carriage and signal distribution.

Reacting to the directive, Lagos-based lawyer, Marian Igbi, said
the NBC erred by presenting the DSO Whitepaper as a document with
the same force as a law. She contended that the Whitepaper, issued
in 2014, can no longer be deemed as valid, given that two editions
of the National Broadcasting Code, a subsidiary legislation on
broadcasting, were issued after it.
“It is important to realise that the 5th and 6th editions of the
National Broadcasting Code came into effect after the
Whitepaper.

The Whitepaper the NBC relies on as empowering it to issue the
directive gave no effect to the document’s recommendations. As a
matter of fact, it could not have given any effect to it in view of
the fact that the National Assembly has not yet amended the NBC
Act,” she argued.

Speaking in similar vein, another lawyer, Maxwell Ogbeche, noted
that a Whitepaper is simply a distillation to supply an analysis of
a particular subject, including new policy frameworks, but is not
the equivalent of a law.

“Whitepapers are statements of policy directions. They are not
laws and their recommendations have to be worked into actual
legislations to have any binding legal effect. In this case, the
recommendations of the DSO Whitepaper remain unknown to the NBC Act
and the Broadcast Code, both of which are the bodies of laws
regulating broadcasting in Nigeria. There is no other legislation,”
he said.

Also speaking, Timothy Shaba, lawyer and former broadcaster,
argued that the NBC appears muddled. According to him, the NBC Act
and National Broadcast Code are clear on broadcasting functions
that require licence issuance, saying DTT operators at which the
Commission’s directive is aimed have valid authority to distribute
the signals, comprising DTT service.

“The licence issued to DTT service providers isn’t the same as a
signal distribution licence because it permits them to carry out
their core business of providing subscription television services
to Nigerians. Signal distributors’ core business is the provision
of signal distribution services to broadcasters licensed by the
government. They do not provide that service to the general
public,” he explained.

Lawyers have faulted the recent directive by the National
Broadcasting Commission (NBC) on the abolition of self-carriage
status by broadcast entities, saying the 2014 Digital Switch Over
Whitepaper the commission relied on to issue is an expired document
and lacks the force of law.

Ahead of the commencement of the second phase of the DSO
programme, which has proceeded in fits and starts, including two
unmet deadlines, NBC recently directed digital terrestrial
television operators to reconfigure their transmission set-ups and
transfer their carriage to either ITS or Pinnacle Communications
Limited, the licensed signal distributors, with immediate
effect.

The NBC, in a letter signed by its acting Director-General, Dr
Armstrong Idachaba, said its directive on abolition of
self-carriage is Section 10 of the 2014 DSO Whitepaper, which it
said prescribes the splitting of broadcasting activities into
content distribution and signal distribution. The commission stated
that with the split, a single broadcaster can no longer combine the
functions of content carriage and signal distribution.

Reacting to the directive, Lagos-based lawyer, Marian Igbi, said
the NBC erred by presenting the DSO Whitepaper as a document with
the same force as a law. She contended that the Whitepaper, issued
in 2014, can no longer be deemed as valid, given that two editions
of the National Broadcasting Code, a subsidiary legislation on
broadcasting, were issued after it.
“It is important to realise that the 5th and 6th editions of the
National Broadcasting Code came into effect after the
Whitepaper.

The Whitepaper the NBC relies on as empowering it to issue the
directive gave no effect to the document’s recommendations. As a
matter of fact, it could not have given any effect to it in view of
the fact that the National Assembly has not yet amended the NBC
Act,” she argued.

Speaking in similar vein, another lawyer, Maxwell Ogbeche, noted
that a Whitepaper is simply a distillation to supply an analysis of
a particular subject, including new policy frameworks, but is not
the equivalent of a law.

“Whitepapers are statements of policy directions. They are not
laws and their recommendations have to be worked into actual
legislations to have any binding legal effect. In this case, the
recommendations of the DSO Whitepaper remain unknown to the NBC Act
and the Broadcast Code, both of which are the bodies of laws
regulating broadcasting in Nigeria. There is no other legislation,”
he said.

Also speaking, Timothy Shaba, lawyer and former broadcaster,
argued that the NBC appears muddled. According to him, the NBC Act
and National Broadcast Code are clear on broadcasting functions
that require licence issuance, saying DTT operators at which the
Commission’s directive is aimed have valid authority to distribute
the signals, comprising DTT service.

“The licence issued to DTT service providers isn’t the same as a
signal distribution licence because it permits them to carry out
their core business of providing subscription television services
to Nigerians. Signal distributors’ core business is the provision
of signal distribution services to broadcasters licensed by the
government. They do not provide that service to the general
public,” he explained.