The Association of Licensed Telecommunications Operators of Nigeria has vowed to resist the federal government on its new laws on the award of radio and television licences, just as government insists on enforcing the law on telecoms operators, writes Emma Okonji
Having succeeded in its struggle to put an end to the incessant closure of Base Transceiver Station (BTS), otherwise known as telecoms base stations and towers hitherto enforced by the National Environmental Standards and Regulations Enforcement Agency (NESREA) a federal government agency and some state government agencies, the telecoms sector may be in for another great challenge.
This time around the sector is likely to face another battle from another federal government agency on the issue of planned enforcement of the Taxes and Levies Approved List for Collection Decree of 1998. The decree empowers the Abuja Municipal Area Council (AMAC) to collect taxes and levies for radio and television transmission.
Although it was signed into law by the then Head of State, General Abdusalami Abubakar (rtd) on September 30th, 1998, but Part III Section 14 of the Decree, clearly stipulated that the taxes and levies to be collected by local government, include radio and television licence fees, other than radio and television transmitter.
In spite of the clarity surrounding Part III, Section 14 of the Taxes and Levies Approved List for Collection Act 1998, AMAC is trying to give different interpretation to Part III, Section 14 of the Decree and has written letters to all telecoms operators, demanding levies on telecoms masts and towers, that are used for transmitting telecoms signals, even though the agency is aware that telecoms masts do not transmit radio and television signals.
Having carefully studied Part III, Section 14 of the Decree, ALTON has vehemently vowed to resist any levy that will be imposed on its members, arguing that telecoms masts and towers do not transmit radio and television signals, which it argued, was clearly spelt out in the Decree.
Battles fought and won by ALTON
ALTON, as the name implies, is an umbrella body for all licensed telecoms operators. Since it was established to present a common front for telecoms operators and to always uphold the position of its members, while protecting their businesses and interests, the association has fought and won several battles for its members, which include the recently won battle to put an end to the incessant closure of BTS sites by government agencies, when payment of levies for such sites were delayed by telecoms operators.
Whether ALTON will succeed in this fresh struggle to stop the Abuja Municipal Area Council from imposing fresh levies on telecoms masts and towers, will largely depend on how it will present the issue before government.
Last year, the NESREA, a federal government agency, came up will all manners of levies on telecoms BTS and warned that it would seal up all BTS, should telecoms operators fail to pay such levies.
All attempt by ALTON to put the record straight before NESREA, fell on deaf ears and NESREA made do its threat by shutting down several BTS sites. Several state government’s agencies did same and ALTON was forced to write the Office of the National Security Adviser(NSA) to intervene in the matter, while stating the implications for national security and connectivity.
Moved by the letter, the NSA, Major General Babagana Monguno (rtd), on December 8, 2016, wrote to all the state governors and copied all chief executive officers of telecommunications companies in the country, expressing his worries over the continuous closure of base stations across the country by government agencies, and warned that such action could threaten national security, if left unchecked.
The state agencies involved in BTS site closure were demanding so much money from telecoms operators and when there is any delay in payment, they would quickly seal up telecoms sites.
In the letter, Monguno directed the state governors to quickly call the agencies involved to quickly reopen already sealed BTS sites and to desist from further closure of the sites for whatever reasons.
Part of the letter read: “The attention of the Office of the National Security Adviser has been drawn to the act of sealing up of BTS, offices and service centres belonging to call service providers across some states. This action is said to be due to failure of the call service providers to pay various tax related fees to the States’ Boards of Internal Revenue, Ministries of Commerce and Industries and Ministries of Physical Planning and Urban Development, among others.
In view of the fact that telecommunications infrastructure are critical national assets, sealing them up could have negative implications on national security. To this end, your excellency is respectfully requested to consider re-opening any sealed BTS within the state and further direct various revenue generation outfits to desist from such acts. I wish to further request that you explore other means of resolving similar issues amicably in the future, in the interest of national security.
ALTON had also entered into dialogue with state governments over Right of Ways (RoW), a situation that saw most state government rescinding their decisions to impose huge levy on telecoms operators over RoW. With that feat, telecoms operators were able to lay underground fibre optic cables for network expansion.
Fresh battle for ALTON
Having succeeded in several battles while protecting the interest of its members, ALTON is currently facing another huddle. But the group is optimistic that it will succeed again.
This time around, the AMAC is imposing radio and television levies on telecoms masts and has directed all telecoms operators through writing, to comply with the fresh directive to pay additional levies for telecoms masts and towers.
Confirming the letters written by AMAC to telecoms operators, ALTON said it would be illegal asking telecoms operating companies to pay for radio and television licence, when its members have nothing to do with radio and television signal transmission.
The argument of AMAC is that since telecoms operators have telecoms masts and towers that transmit telecoms signals, they should be grouped under radio and television signal transmission companies and compel them to pay same levy like radio and television stations.
Part of the letter read: “Abuja Municipal Area Council (AMAC) wishes to notify you of your liability on licence/permit in accordance with provisions of section 7 (4th schedule) of the 1999 Constitution as amended; Taxes and Levies (Approved List for Collection) Act CAPT2 LFN 2004 and Abuja Municipal Council Area Bye-Law (No14) of 2012 on Operational Permit/Trade Licence and Allied Matters. A total liability N1.5 million should be paid not later than 14 days from the date of this demand notice. All payments should be made in full into Abuja a Municipal Area Council bank account.
Reacting to the letter the Chairman of ALTON, Gbenga Adebayo said it would be illegal for telecoms operators to pay levy on radio and television licence, when they have nothing to do with radio and television transmission signals.
In a letter to AMAC, Adebayo said: “The Association notes that Paragraph 14 of Part III of the Schedule to the Taxes and Levies Act in making provision for radio & television taxes clearly excludes telecommunication masts/towers from being taxed under this head. AMAC therefore has no legal basis to impose this tax from the backdoor, outside the statutory provisions to this effect.”
Part of ALTON letter, which was made available to THISDAY, read:
“ALTON is the industry body of all licensed telecommunications operators in Nigeria. It is duly registered under the laws of the Federal Republic of Nigeria and interfaces with the Nigerian Communications Commission (NCC) and other Government Ministries, Departments and Agencies on behalf of the telecommunications industry.
“We are in receipt of complaints from some of our members about their receipt of AMAC’s demand notices for the payment of Radio/Television license.
Please be assured that ALTON supports the levying of legitimate and statutory taxes on its members and have on so many occasions demonstrated its support for initiatives within the constitutional provisions which are aimed at facilitating socio-economic development of the country. To this end, ALTON respectfully draws your attention to the Taxes and Levies (Approved list of Collection) Act of 1998, which clearly delineates levies and taxes payable to each tier of government. The provisions of the Act were upheld in the Court of Appeal Judgment in Eti Osa LGA Vs Mr. & Mrs. Jegede (2007) 10 NWLR 537 wherein the court expressly held that Local Government Areas were prohibited from imposing any fees outside the list of approved the taxes and levies indicated in the Act.
The Association notes that Paragraph 14 of Part III of the Schedule to the Taxes and Levies Act in making provision for radio & television taxes clearly excludes telecommunication masts/towers from being taxed under this head. AMAC therefore has no legal basis to impose this tax from the backdoor, outside the statutory provisions to this effect.”
“Available records will show that our members have always demonstrated the true Nigerian spirit by ensuring the payment of statutory levies and charges to the various tiers of government as at when due. However, the imposition of additional and unsubstantiated charges on telecommunications operations in your locality is inimical to the growth and development of the Sector, may affect the ability of our members to offer services for which they have been licensed to offer by the Federal Government of Nigeria and will generally affect the stability of our national economy. As such these demand notices as presently couched and sent to our members are illegal, Ultra Vires the powers of AMAC or any local government for that matter, spurious and of no consequence. We therefore request that these demands be withdrawn without delay.”
“In view of the foregoing, ALTON requests AMAC to ensure that taxes and levies which are presented for payment by our members are statutory and in line with the Taxes and Levies Act referred to above. We have also copied the office of the National Security Adviser and the Nigerian Communications Commission in order to underline the serious nature of this complaint and for their intervention. Please be assured that we remain committed as an Association and as Nigerians to work together in the overall interest of our dear nation.”
A copy of the letter was sent to the Office of the NSA; the Industry Working Group on Multiple Taxation, NCC and the Chairman Joint Tax Board, Abuja.
Legal position
Speaking on the Legal implications of imposing radio and television licence fees on telecoms operators, in relation to their masts and towers, telecoms lawyer, Jiti Ogunye said laws are meant to guide the operational systems of any organizations. He added that laws are meant to be obeyed, provided the laws are legally implemented. He, however, said he was yet to study the Taxes and Levies Approved List for Collection Act 1998, and that he needed some time to study it before making comments concerning the bone of contention between ALTON and AMAC over the true position of the Decree.
About radio and television decree
The Taxes and Levies Approved List for Collection Act was signed into law on the 30th day of September 1998, by the then Gen. Abubakar, under Taxes and Levies (Approved list for collection) Decree No 21 of 1998.
The decree spelt out the responsibility for collection taxes and levies; Assessment and collection of taxes; Offences; Interpretation and Citation.
Part of the law states that the Federal Military Government decrees that notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979, as amended, or in any other enactment or law, the federal government, state government and local government shall be responsible for collecting the taxes and levies listed in Part I, Part II and Part III of the Schedule to this Decree, respectively.
The Minister of Finance may, on the advice of the Joint Tax Board and by order published in the gazette, amend the schedule to the decree; No person, other than the appropriate tax authority, shall assess or collect, on behalf of the government, any tax or levy listed in the schedule. No person, including a tax authority, shall mount a road block in any part of the federation for the purpose of collecting any tax or levy. A person who collects and mounts a road block or causes a road block to be mounted for the purpose of collecting any tax or levy, in contravention of section 2 of this Decree, is guilty of an offense and liable on conviction to a fine of N50,000 or imprisonment for three years or to both such fine and imprisonment.
Although the laws and the plans to implement the laws within the telecoms sector may seem right and legal to authorities of AMAC, but ALTON has however refused to accept implementation of the law because its implementation on the telecoms sector, appears illegal before members of ALTON.
Following the line of disagreement between ALTON and AMAC, there is an urgent need for proper legal interpretation of the law and its planned implementation in the telecoms sector, to avoid unnecessary stalemate in the wheel of progress.
