Why NBC’s Threat To Revoke AIT, 52 Others’ Licences Is Unconstitutional—Stakeholders

In this report, Ise-Oluwa Ige interrogates the provisions of Section 39 (1) (2) of the 1999 Constitution as they affect ownership of broadcast media in Nigeria; examines the facts that premised the decision by the National Broadcasting Commission, NBC to threaten a mass revocation of operating licences of 53 broadcast stations; harvests views of stakeholders on the issue and argues that the NBC cannot hide under the constitutional provision of enforcing mandatory renewal of presidential permit to rob Nigerians of their fundamental rights to freedom of expression and the press.

On August 19, 2022, the National Broadcasting Commission, NBC, revoked the operating licences of 53 broadcast stations in the country.

The Director-General of the Commission, Malam Balarabe Ilelah, who made the announcement at a press conference in Abuja, explained that all the 53 affected stations had been owing since 2015.

He said the stations were owing about N2.6 billion debt.
Ilelah said the commission, had in May, published the names of stations that were yet to renew their licences and granted them two weeks to do so or get their licences revoked.
He said three months after the publication, some stations were yet to pay their outstanding debt in contravention of Act CAP N11, Laws of the Federation of Nigeria, 2004, particularly Section 10(a) of the third schedule of the Act.

Almost half of the affected stations belonged to state governments in all geo-political zones in the country.

Announcing the revocation of the licences, Ilelah instructed that the affected stations should shut down their operations within 24 hours, adding that the continued operation of the debtor-stations would be illegal and constitute a threat to national security.

He called on all stations that have not renewed their licences for the current duration to do so within 30 days to avoid sanctions.

He also called on all Internet Protocol Television (IPTV) and other broadcast stations that were streaming online to register with the commission to avoid disconnection.
He said even if they had paid their outstanding fees, they would have to pay another amount for recommencement of operations.

List of affected broadcast stations
The Director-General listed the affected stations to include Silverbird TV (Silverbird Communications Co. Ltd), Network Rhythm FM (Silverbird Communications Ltd), AIT/Ray Power FM (DAAR Communication Ltd), Greetings FM (Greetings Media Ltd), Tao FM (Ovidi Communications Ltd), Zuma FM (Zuma FM Ltd), Crowther FM (Crowther Communications Ltd), We FM (Kings Broadcasting Ltd) and Linksman International Ltd.

Also affected are Bomay Broadcasting Services Ltd, MITV (Murhi International Group Ltd), Classic FM (Pinkt Nigeria Ltd), Classic TV (Pinkt Nigeria Ltd), Beat FM (Megalectrics Ltd), Cooper Communications Ltd, Splash FM (West Midlands Ltd), Rock City FM (Boot Communications Ltd), Family FM (Kalaks Investments Nig. Ltd), Space FM (Creazioni Nig. Ltd), Radio Jeremi (Radio Jeremi Ltd), FM Abuja, FM Lagos, FM Yenagoa, FM Port-Harcourt, FM Jos, Wave FM (South Atlantic Media Ltd), Kogi State Broadcasting Corporation, Kwara State Broadcasting Corporation, Niger State Broadcasting Corporation, Benin Network, FM Network, FM Okene, FM Suleja, FM Abuja, FM Benin, Breeze FM (Bays Water Ltd), Vibes FM (Vibes Communication Ltd), Family Love FM (Multimesh Broadcasting Co. Ltd) Port-Harcourt.

Others are Gombe State Broadcasting Corporation, Lagos DSB, Lagos State Broadcasting Corporation, Osun State Broadcasting Corporation, Ogun State Broadcasting Corporation, Ondo State Broadcasting Corporation, Rivers State Broadcasting Corporation, Bayelsa State Broadcasting Corporation, Cross River State Broadcasting Corporation, Imo State Broadcasting Corporation, Anambra State Broadcasting Corporation, Borno State Broadcasting Corporation], and Yobe State Broadcasting Corporation.

Also included on the list are Sokoto State Broadcasting Corporation, Zamfara State Broadcasting Corporation, Kebbi State Broadcasting Corporation, Jigawa State Broadcasting Corporation, Kaduna State Broadcasting Corporation and Katsina State Broadcasting Corporation.

The 53 affected television and radio stations are among the 625 functional broadcast stations in the country.

What is the constitutional bases for broadcast media presidential permit?
Although Section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides for freedom of expression, subsection 2 not only grants the freedom to own, establish and operate any mass media but it also stresses that ownership of electronic media, that is radio and television, shall be by a special licence from the President.

By implication, while one can establish a print medium like newspaper or magazine without going through Mr President for a special permit, no one can run an electronic medium without first obtaining the presidential permit.

The National Broadcasting Commission is an agency of the Federal Government created by law to assist the President to perform his function under section 39(2) of the 1999 Constitution.

In other words, the National Broadcasting Commission is the broadcast regulator of the Federal Republic of Nigeria. The commission was set up on August 24, 1992, by Decree 38 of 1992 later amended as an act of the National Assembly by Act 55 of 1999 and now known as National Broadcasting Commission Laws of the Federation 2004, CAP N11 to among other responsibilities, regulate and control the broadcasting industry in Nigeria.

The commission, in its advisory capacity to the Federal Government, regularly adopts scientific research methods to gather data, analyse trends in line with the dynamism of the industry and advise government accordingly.

It is also the responsibility of the commission to receive, process and consider applications for the establishment, ownership or operation of radio and television stations including cable television service, direct satellite broadcast and any other medium of broadcasting; radio and television stations owned, established or operated by the federal, state and local governments; and stations run under private ownership.

The commission recommends these applications after due consideration, through the Minister of Information to the President, Commander-In-Chief of the Armed Forces, for the grant of radio and television licences.

Why special licensing of electronic media — Prof Okoye
According to a university don, Prof. Innocent Okoye, a number of factors may be responsible for special licensing of electronic media before they can operate in the country:
According to him, the broadcast spectrum belongs to all Nigerians. “To operate a radio or television station, one requires to be allocated frequencies. Government controls and allocates frequencies on behalf of all Nigerians. If frequencies are not controlled and allocated by a central authority, there will be confusion in the atmosphere.”

He also said that government all over the world earn revenue from the allocation of broadcast frequencies and the frequencies used by other wireless technologies such as GSM, for the purpose of earning revenues to provide social services.

Besides, he said government regulates public broadcasting to ensure that it is used responsibly in the interest of the people and to ensure that the media conform to the fundamental objectives of the state.

How much does NBC charge for broadcast licensing?
Under the NBC Act, as soon as the operational license is granted, the company would be required to pay a licence fee for an initial term of five years in the first instance, subject to renewal. The licence fee for an initial term of five years is as follows:
CATEGORY A: Any location in the FCT, Lagos and Port Harcourt: Radio – N20 million, Terrestrial TV – N15 million, Cable – N10 million.

CATEGORY B: Any location in all other states: Radio – N15 million, Terrestrial TV – N11.25 million, Cable – N7.5 million.

Public/Government Stations: N5million for five years or N1million per Television or Radio Channel per annum for five years.

The renewal fee for Cable – Satellite Television (MMDS): Category A: FCT, LAGOS and PORT HARCOURT = N5 million for five years.

CATEGORY B: Any location in all other states: N4 million for five years.
Direct Broadcast Satellite: (Single Channel): New and Renewal: N10 million for five years.
Direct-to-Home (DTH) (Multichannel) New: N25 million for five years. Renewal: N50million for five years (with effect from May 19, 2005).

Dealer (Wholesaler): N120,000.00 per annum.
Importer (Wholesaler): N120,000.00 per annum
Retailer N30,000.00 per annum*

Federal government’s debt forgiveness window
In the meantime, Vanguard reports that the Federal Government had, in 2020, approved 60 per cent debt forgiveness for broadcast stations in order to alleviate the damaging effects of the Coronavirus (COVID-19) pandemic on the industry in Nigeria.

Alhaji Lai Mohammed, Minister for Information and Culture, reportedly stated that several Nigerian Radio and Television stations remained indebted to the government to the tune of N7.8 billion.

The Minister was quoted to have said that the affected stations were faced with the reality that their licences would not be renewed in view of their indebtedness.

Mohammed, however, said the criterion for enjoying the debt forgiveness was for debtor stations to pay 40 per cent of their existing debt within three months.

Mixed reactions trail licence revocation
Following intervention, however, the NBC has now extended the deadline for payment of all outstanding licence fees from August 20 till August 24, 2022 or the debtor-station shut down by 12am on August 24.

However, the decision by the NBC to wield its big stick not only rattled the affected broadcast stations but also corporate persons and individuals across different socio-economic classes for several reasons.

Indeed, there have been reactions from various individuals and corporate persons in the country including the Media Rights Agenda (MRA), the Socio-Economic Rights and Accountability Project (SERAP), the Nigerian Union of Journalists (NUJ), the Nigerian Guild of Editors (NGE), the Radio Television Theatre Act Workers Union (RATTAWU) and prominent lawyers, among others.

SERAP gives NBC ultimatum to reverse its decision or face legal action
For instance, in less than 48 hours after the NBC wielded its big stick, the Socio-Economic Rights and Accountability Project, SERAP, wrote a public letter to President Muhammadu Buhari to urgently instruct the Minister of Information and Culture, Mr Lai Mohammed and the National Broadcasting Commission, NBC under Mohammed’s portfolio, to withdraw the threat to shut down the operations of the broadcast stations in the country over their failure to renew their licences.

In SERAP’s letter dated August 20, 2022 by the Deputy Director, Kolawole Oluwadare, the organisation said: “The threat to shut down 53 broadcast stations is neither necessary nor proportionate. If carried out, it would offend the legal principles of equity and equality of access to mass communication.”

SERAP said: “Under the Nigerian Constitution 1999 [as amended] and international human rights law, freedom and diversity must be guiding principles in the regulation and licensing of broadcasting. The threat to shut down 53 broadcast stations is entirely inconsistent and incompatible with these principles.”

According to SERAP, “Revoking the licences of 53 broadcast stations and shutting down their operations because they have not renewed their licences would undermine the rights of millions of Nigerians to express their thoughts.”

The letter, read in part: “We would be grateful if the requested action is taken within 24 hours of the receipt and/or publication of this letter. If we have not heard from you by then, SERAP shall take all appropriate legal actions to compel your government to comply with our request in the public interest.

“The NBC Act and Broadcasting Code cannot and should not be used in a manner that is inconsistent and incompatible with plurality of voices, diversity of voices, non-discrimination, and just demands of a democratic society, as well as the public interest.
“When money or economic considerations are the major criteria for renewing licences for broadcast stations, the fundamental principles of equal access to the media, pluralism and diversity are compromised,” it added.

NBC’s action insensitive to harsh economic environment under which affected stations operate — MRA
Media Rights Agenda, MRA, has described the National Broadcasting Commission’s decision as ill-advised, insensitive and antithetical to the interests of the Nigerian public.
In a statement by Ms. Obioma Okonkwo, Head of its Legal Department, MRA said NBC was merely prioritizing its desire to make money off the broadcasters over the interest of citizens.

She argued that the ultimate effect of its action was to deprive millions of Nigerians access to information as well as their rights and ability to freely express themselves through these stations.

Ms. Okonkwo said: “We are shocked by this naked display by the NBC of a lack of appreciation of its principal role which is to contribute to the emergence of a knowledge society.

“Rather than doing that, it has chosen to create an environment in which millions of Nigerians will wallow in ignorance, deprived of access to crucial information that they need to make critical decisions in their lives or to enhance their livelihoods.”

Ms. Obioma accused the NBC of being insensitive to the harsh economic environment under which the broadcast stations have operated over the last two and a half years as the national economy has been ravaged by the COVID-19 pandemic itself and the measures taken by the government in response to the pandemic.

She noted that the broadcasting stations were also negatively impacted by the inability of the government to create a conducive environment for them to operate, such as providing appropriate infrastructure like electricity supply, adding that with the stations having to find alternative sources of power supply even “as the price of diesel continues to skyrocket daily, they are simply struggling to survive.”

Ms Obioma said: “The fact that so many broadcasting stations have been unable to pay the licence fees raises serious questions about the fairness and appropriateness of the fees being imposed on broadcasters by the NBC in such a challenging economic environment.
“As the NBC, which imposes the fees also collects them for its own use, there needs to be an independent inquiry into this apparent conflict of interest where the motivation of the commission is apparently to make as much money for itself as possible.”

Ms. Obioma called on the NBC to reverse its decision in the public interest to avoid creating a society of predominantly ignorant citizens, advising that the need to ensure that Nigerians are adequately informed through the media should supersede any other consideration by the NBC.

She therefore advised the commission to liaise with the broadcasting stations to identify the challenges facing the industry and come up with realistic solutions to the identified challenges.

NBC’s decision can cost thousands of jobs—NGE
The Nigerian Guild of Editors, NGE has also advised the NBC to reverse itself for more reasons than one.

The Guild, in a statement by its President, Mustapha Isah, and the General Secretary, Iyobosa Uwugiaren, said while it was not opposed to broadcast stations fulfilling their financial obligations to the NBC, the commission appeared not to have taken cognizance of “the current harsh operating environment that has crippled every sector in our nation,”

warning that its action could cost thousands of jobs in a country where jobs are scarce.
It said: “Currently, it is difficult for private stations to import broadcast equipment due to the high exchange rate. We are all aware of the high operational cost, including the cost of diesel to power their generating sets.”

The Guild added that several broadcast stations are just managing to survive in the midst of the high competition in the industry, following the licencing of hundreds of more stations by the NBC.

The NGE called for a review of the NBC Act to increase the lifespan of a broadcast licence from five to at least 10 years, and a reduction of the licence fees in view of the large number of broadcast stations currently operating in the country.

It said: “A caring government should be concerned about the possibility of job losses than revenue generation. After all, one of the functions of the NBC is working for the survival and the development of the broadcast industry.

“A critical stakeholder in the nation’s democratic space cannot be shut out at this critical moment of our democracy, especially when the country is preparing for the 2023 general election.”

NBC’s action ill-timed, reckless — NUJ
The Nigeria Union of Journalists, NUJ, has dismissed the action of the NBC as hasty, ill-timed and reckless.

“This wholesale revocation of licences at this critical time of insecurity in the country appears to be a decision taken without careful prior deliberation, consultation or counsel,” President of NUJ, Chris Isiguzo said.

He said while the NUJ regretted the inability of the affected broadcast stations to fulfil their obligations to NBC in view of dwindling resources, the commission ought to have taken into consideration “the unpleasant outcome of such media blackout at this time.”

He asked the NBC to “exercise more restraint on this issue in consideration of national security and allow for more dialogue and consultation to find a better way of dealing with the situation.”

It is now time for NBC to summon stakeholders’s meeting on broadcast stations’ challenges — RATTAWUU
Also reacting, the Radio Television Theatre Arts Workers Union, RATTAWU, has called on the NBC to urgently summon a stakeholders’ meeting to discuss challenges affecting broadcast stations in Nigeria.

“Information is the oxygen of democracy. This truism has stood the test of time and in all climes. Therefore, Nigeria cannot be an exception. It is on the basis of the above that RATTAWU has no other option but to caution the NBC that while the commission has the unreserved constitutional right to revoke the licences of Radio and Television stations that have not done the needful, however, the prevailing climate makes such an action untimely and with grave consequences.

“This is because, most of these stations are yet to recover from the Covid-19 shock. It would be recalled that during the lock-down, these stations did brave services of sustaining broadcasting,” it added.

RATTAWU consequently made a case that the broadcast stations be given special Covid-19 palliative, considering the laudable role they played.

RATTAWU, while urging the indebted stations to do the needful, however condemned the action of NBC, describing it as untimely and uncircumspect.

Exhaust engagement channels before executing order — IPC
In the same vein, the International Press Centre, IPC, in Nigeria, urged the NBC to “exercise caution” and “exhaust engagement channels” before executing the order.
The organisation also cautioned the Nigerian broadcast regulatory agency to not usurp the powers of the President and National Assembly.

“The IPC holds that the sweeping revocation confirms its concern that the NBC exercises its powers arbitrarily without recourse to public interest.

“It also confirms our worry that the NBC continuously constitutes itself as the accuser, the prosecutor and the judge in its own case.”

Payment for broadcast licenses cannot be waived but — Adekoke, SAN
A learned silk, Mr Kunle Adegoke, stated that payment for licences could not be waived as long as it was a requirement of the broadcast stations by law, but added that where the clampdown on the stations was arbitrary, it was condemnable and unconstitutional.

Revoking multiple licences at the same time undemocratic — OSIGWE, SAN
Another lawyer, Afam Osigwe, SAN, said the NBC was wrong to revoke the licences of broadcast stations over non-payment of licence fees without prior notice.

The legal practitioner said that revoking multiple licences at the same time was not democratic.

It is not in doubt that no individual organisation or state government can establish or operate broadcast media in Nigeria without obtaining the presidential permit in the form of license renewable every five years, neither is the regulation of broadcast media via special licensing peculiar to Nigeria.

It is, however, clear from the narratives above that the Federal Government must cognize the harsh economic environment under which all broadcast stations in the country operate in order to reconsider its present decision so as not to take away the fundamental rights of Nigerians to freedom of expression and the press under the Shylock guise of enforcing a constitutional provision which requires broadcast media to obtain presidential permit before they can operate.

In fact, it is time for the government to review downward the operational licence fee as the figures fixed appear too exorbitant and abuse of its constitutional powers to muffle the press.