Are we Attempting to Over-regulate OTTs?


Are we Attempting to Over-regulate OTTs?

November 09, 2021

The Nigerian Communications Commission defines Over-the-top (OTT) services as services “carried over the networks, delivering value to customers. These over-the-top services include services such as Internet Protocol (IP) Telephony, live streaming and other social media applications.”Simply put, OTT is just a means of providing television and film content over the internet at the request and to meet the requirements of the individual consumer. The term itself implies that a content provider is going over the top of existing internet services.

World over, the broadcast industry has experienced a brisk shift in the way and manner content is delivered to our screens (mobiles/pcs/tablets/tvs) by broadcasters. Enabled by technology, the delivery of content through OTT services, particularly the subscription-based video on demand (such as Showmax, Envivo, Hulu, Disney ,Netflix, AppleTV, and Amazon Prime, to name a few) have become the rave of the day.

While the increased popularity of these OTT platforms signals yet another win for globalization, their operations and mode of service delivery have created a conundrum of some sort for regulators across various jurisdictions. The issues on the one hand, lie in the need for regulators to understand and expand the purview of their regulations to cover OTTs’ mode of service delivery, and on the other hand, to balance the competing interests of local players, while regulating but not stifling the inflow of investments, expertise, and exposure that international OTTs offer to the local markets.

Between 2019 and 2021, Nigeria’s National Assembly has debated and held public hearings on a number of Bills (the “Bills”), which amongst other objectives (whether impliedly or expressly indicated) seek to provide a framework for the regulation of OTTs, particularly pertaining to the broadcast industry in Nigeria. These Bills include:

  1. HB 332: A Bill to amend the National Broadcasting Commission (NBC) Act (the “NBC Act Amendment Bill”); and
  1. HB.514: A Bill to repeal the National Film and Video Censors Board [NFVCB] Act and Enact the National Film and Video Censorship, Classification and Exhibition Regulatory Commission Act (2019) (the “NFVCCERC Bill”)

The National Assembly’s efforts at modernizing the regulatory framework of the broadcast industry are worthy of commendation. However, it is pertinent to state that where a regulatory framework is to be substantially enshrined in primary legislation (which is seldom amended), such legislation should be accorded a greater deal of scrutiny and critique.

In this article, we seek to identify some key provisions of the Bills that relate to Nigeria’s intended regulation of OTTs, particularly in light of the relevance of technology, media, sports, and entertainment to our economy at this moment in time.

The Differentiation & Categorization of OTT platforms

Both the NBC Amendment Bill and the NFVCCRC Bill fail to accurately fragment, categorize or take cognisance of the various OTT models. These include Voice over Internet Protocol (VoIP), social media platforms such as Internet Protocol Television (IPTV) and Video on Demand (VOD) services, among others. Article 9(a) (5) (p) & (q) of the NBC Act Amendment Bill 2019, for example, categorizes broadcast licences into only two (2) umbrellas, namely: internet broadcasting and OTTs.

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