6th NBC code: A disincentive to investment by Tope Ajayi

The National Broadcasting Commission opened itself to a needless controversy in current bid to regulate the broadcast industry. NBC decided to introduce new regulations following the monumental toxicity and hate-inspired campaign that characterized the 2019 general election, which in itself was a fallout of unrestrained campaign of calumny during 2015 elections across board.

While it is not out of place for NBC as a regulator to strengthen regulations by following its own rules and procedures, it is totally inconceivable that NBC will seek to carry out regulations that can cripple and disincentivise a critical sector of the economy.

The move by NBC to upend the existing right of broadcasters to exclusivity of their content indicates a descent to feudalism–a dominant social and economic system in medieval Europe where ownership of land and other factors of production is by privilege of birth and not on the basis of innovation and hard work.

The new NBC Code, which contains provisions to force content owners/broadcasters to share their programmes with other broadcasters, with the NBC empowered to function as a price regulator, is at variance with the Buhari administration’s avowed commitment under the Economic Recovery Growth Plan (EGRP) that makes promotion of private enterprise in Nigeria as the centrepiece of economic growth. It is also worth stating that a country that is working hard to boost economic activities and productivity as a catalyst for shared prosperity for citizens through local and direct foreign investments should not be seen through any act of her regulatory agencies to kill off businesses. In the past, many business leaders and policy experts have identified what they term ‘rogue regulators’ as one of the banes of deepening private investment and militating against critical sectors of the economy.

Interestingly, in all national economic development strategy documents developed by the Federal Government since year 2000, starting from National Economic Empowerment and Development Strategy (NEEDS) in 2004, to the Transformation Agenda promoted by the Goodluck Jonathan administration and the current ERGP, all identified growing the creative economy as a key element of the non-oil sector revenue drivers. At the heart of creative economy – film, virtual art, music, comedy, fashion, TV production and sports promotion – is broadcasting. The bedrock of broadcasting for subscription television-based organisations like Startimes and Multichoice among others is content exclusivity. Content is the oxygen that propels and sustains pay television.

 The Acting Director-General of NBC, Dr. Armstrong Idachaba, at a press briefing on 21 February 2020, stated that NBC will publish the recommendations of the committee ordered by the Minister of Information to work on new regulations for the industry within two weeks for industry/ public input. The NBC, up till the time it published the new amendments, did no such thing despite the assurance by the Acting DG as well as the Minister in his speech to the Filmic Group on March 6, 2020 in Lagos.

Multichoice as a major player, for example, invests heavily to acquire football content rights like English Premier League and Championship just like other right owners. These rights were acquired through competitive bid. Any regulation that seeks to deny content/rights owners the benefits of their investment is antithetical to economic development. What the NBC seeks to do is to have investors in local content creation, who promote, market to audience applause and popularity should, relinquish same to competitors to reap where they did not sow. This goes without saying as an antediluvian approach to what should be a rule-based and market-led regulation. It is like issuing a decree that Nigeria Television Authority (NTA), in its halcyon days, when it produced soar-away programmes like Village Head Masters, Ripples, Behind the Cloud and Mirror in the Sun must, by force, give same to Channels Television and

African Independent Television.

Confidence-building between operators and regulatory agency is sine qua non to industry vibrancy and by extension, a productive economy. What the NBC seeks to do is the exact opposite of confidence building. The NBC, as its code shows, is attempting to exercise powers beyond the ones it has. It desires to control domestic sports bodies and take over the duties of the Federal Competition and Consumer Protection Commission (FCCPC), with its non-stop chatter on “fair competition”. While the stakeholders’ consultative meeting promised by the Minister and Acting DG has not taken place till date, the NBC published a document in the newspaper on May 27 titled ‘Amendments to the 6th Edition of the NBC Code’ (Amendment Code), which incorporates the controversial recommendations on regulation of exclusive broadcasting rights.

It is apparent that the NBC wants to use regulation to take over private investments. It unthinkable that NBC wants to turn private enterprise into state- controlled property and rides roughshod over genuine investors.

The joy of content exclusivity to content creators and or right owners lies in the creative and intellectual accomplishment they offer. For local content like movies, reality shows and other productions, content exclusivity provides financial support to the production industry, enabling local producers to invest in more productions, payment of salaries to actors, scriptwriters, editors, directors, set designers and builders among others. The new NBC Code will, therefore, have far-reaching consequences, not just to the broadcasting industry but to other sectors of the economy because the negative signal from broadcast industry can trigger negative run on other sectors, especially with foreign investors. To continue investing, investors must have confidence in the economy and regulators need to show that they do not just act on whims.

The subscription broadcasting industry is a significant enabler of the wider Nigerian economy through the catalytic and multiplier effect across the value-chain. It stimulates employment, skills development, investment in productions and the development of export markets. According to the National Bureau of Statistics, the film industry contributed 2.3 per cent to the national GDP in 2016 while music grew by 9% with a projection to grow by 13.4 per cent by 2021. Any misapplication of regulatory power by NBC will wipe off the labour and gains of many decades.

If Nigeria wants to encourage more investment in the broadcasting industry, it is essential that it avoids stifling – and apparently illegal- state control. For strange reasons, the NBC appears blind to the fact that regulating exclusivity will take away the incentives for investment in local content. Competition in itself drives value, efficiency and professionalism. When creative industries cannot regenerate itself due to demotivation occasioned by lack of competitive spirit to innovate, the industry becomes the biggest loser. Local content creation provides equal opportunity and acquiring broadcasting rights is a buyer’s market because the bidding process is open to all. One broadcaster should not do all the hard work while others wait for an NBC sanctioned-manna that will fall from heaven. The Holy Bible, as a fair arbiter, even says the man that does not work should not eat.

One thing is certain, the Federal Government will create market distortion if it unduly interferes with the industry in a manner that does not promote free enterprise. There are dominant players in every sector in any economy. In banking for example, Nigeria has over 20 banks where the top 5 control almost half of the market. In telecoms, MTN attained the status of market dominance in Nigeria. The competition in the telecoms sector is forcing down price and increasing investment in network integrity. At the end of the day, consumers are the winners. Regulations should make operators adhere strictly to professionalism, increase ease of doing business, improve customer experience and encourage more investment to create value for all stakeholders.

NBC should busy itself with bigger issues of enforcing provisions that ensure the airing of content that enhances peace and stability. Broader industry issues should be addressed through proper consultation and input from the operators. After all, regulations and regulators do not exist in a vacuum. Regulations work well when they are conceived with those they will impact in mind.