NCC plans regulation on unsolicited text as telcos foot drag

Plans by the Nigerian Communications Commission (NCC) are underway to develop fresh regulation aimed at curbing the menance of unsolicited text messaging, and other unwholesome practices. This is in view of the barrage of complaints from the country’s telecommunications subscribers over its intrusiveness and abject neglect of consumers’ privacy. Unsatisfied with the efforts of mobile operators to restrict the free-flow of unsolicited text messages across their respective networks, the telecoms regulator is taking a more direct approach in protecting the interest of the nation’s over 130 million mobile subscribers.  “Last year, we asked telecommunications companies to activate anti-spam filters on their networks to reduce the spate of unsolicited text messages being delivered to telecoms subscribers. We have seen little or no impact because telecoms subscribers are still complaining over the issue”, said Maryam Bayi, director, consumer affairs at the commission.

In view of this, “We are planning to develop a regulation on unsolicited text messages to address this problem. Our legal and regulatory team is already on it”, she said at a recent industry forum in Lagos. According to Bayi, this move had become expedient in view of the need to protect the right of consumers by ensuring that they get the best quality of service and value for money spent. In a recent report by GSM Association, a global body protecting the interest of operators, it was said that subscribers regard unsolicited SMS as an invasion of personal space and expect their operators to provide protection. Industry observers are of the view that mobile operators are reluctant to discourage spam SMS because they enjoy huge commercial gains from allowing their networks to be used by various parties for such unfriendly practices. “There is no way an SMS will come to me without my network knowing about it. Telcos are the gate keepers”, said Rasaq Olaegbe, a public relations consultant.

“The operators cannot feign ignorance of spam SMS because it is a commercial decision to allow their platforms to be used for sending such unsolicited messages. Unfortunately, the messages are not targeted and as such, it annoys you as a subscriber if you keep getting the messages you have not requested for”, Olaegbe added. BusinessDay gathered that the regulation will be ready by the fourth quarter of this year. Bayi assured, “By the end of the year, unsolicited messages will be a thing of the past”. When this regulation finally comes on stream by the last quarter of 2015, irrevocable sanctions will be imposed on operators that fail to adhere strictly to it.

The United Kingdom (UK), in 2003, formulated and enacted similar regulation. According to the Privacy and Electronic Communications Regulation 2003, section 22 paragraph 2, ” a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by or at the instigation of, the sender.” Operators have defended themselves at different industry fora, insisting that the unsolicited SMS and voice calls do not emanate directly from them, but from Value Added Service (VAS) providers that are licensed by the NCC. Ugo Okoye, chief executive officer, iConcepts, a leading VAS provider, says it is rather unfair to heap the blame on VAS players alone, further adding that there are many parties involved in the unsolicited SMS phenomenon.

Speaking with BusinessDay in an interview recently, Okoye said, it is not just content from VAS providers that flies around the networks, but also SMS (Short Messaging Service) from banks, stores, bulk SMS providers and even churches. “I walked into a shop to buy something, and next thing the attendant wants my contact details. I gave it to him, and the next day, I received an SMS from the shop on new products. Is that the fault of the VAS provider?” the iConcept CEO queried. Okoye is however of the view that that there should legislation on privacy, data protection and permission-based marketing. Unsolicited SMS or spam SMS is illegal under common law in many jurisdictions as ‘trespass to chattels’. Jurisdictions with specific SMS spam regulation and fines include Australia, the European Union (EU) and the United States (US). In the US, violators face substantial costs. For instance, in a 2008 settlement, the violator agreed to pay $150 to each spam recipient.

 In a 2010 class action settlement of Satterfield versus Simon & Schuster, a case that reached the US Ninth Circuit Court of Appeals, defendants agreed to pay $175 to each spam recipient. In subsequent cases, the payment per class member has increased to $200 in 2011 and $500 in 2013. In response to Satterfield, entities who make money sending mobile phone spam formed the Mobile Advocacy Coalition (MAC) to lobby the government to legalise that activity. In the US, the Federal Trade Commission (FTC) has expanded Phone Spam regulations to cover also Voice Spam – mostly in form of prerecorded telemarketing calls – commonly known as robocalls; victims can file a complaint with the Federal Communications Commission (FCC).  In California, Section 17538.41 of the B&P Code bans text message advertisement. Consumers can sue on an individual or class basis per a private right of action against unfair business practices.