Airtime Judgment: Inside WASPAN's grounds for appeal against FCCPC's DEON regulations

Barely 24 hours after the Federal High Court in Lagos dismissed the Wireless Application Service Providers Association of Nigeria's (WASPAN) challenge to the regulations, the telecoms industry group headed back to court.

Armed with a Notice of Appeal and an application seeking an injunction pending appeal, WASPAN is asking the Court of Appeal to overturn the July 20, 2026 judgment delivered by Justice A.L. Allagoa. Its legal team, led by Senior Advocates of Nigeria Kemi Pinheiro and Chukwudi Enebeli, argues that the ruling raises fundamental questions about who really regulates Nigeria's telecommunications industry.

The appeal is more than another courtroom battle.

It could determine how far one regulator can go in overseeing an industry already supervised by another and shape the future of digital lending, airtime credit services and consumer protection in Nigeria.

The dispute centres on the FCCPC's DEON Regulations, which govern digital, electronic and other non-traditional consumer lending services.

On July 20, the Federal High Court dismissed WASPAN's suit and upheld the Commission's powers to issue the regulations.

Shortly after the judgment, the FCCPC announced that the legal obstacle which had forced it to suspend enforcement of the regulations had been removed.

"The legal impediment that had necessitated the Commission's temporary suspension of implementation and enforcement of the DEON Regulations has been removed, and the Regulations are once again fully operational and enforceable," FCCPC Director of Corporate Affairs, Ondaje Ijagwu, said.

On July 21, it filed a Notice of Appeal before the Court of Appeal, Lagos Judicial Division, alongside a Motion on Notice before the Federal High Court seeking an injunction to stop enforcement of key provisions of the regulations while the appeal is being heard.

According to an affidavit deposed to by WASPAN Chairman, Ayo Stuffman, enforcement of the regulations before the appeal is decided would expose members to regulatory uncertainty, possible sanctions and disruption of legitimate business operations.

"The Plaintiff's members will continue to suffer regulatory uncertainty, exposure to sanctions, and disruption of their lawful business activities... members of the Plaintiff are constrained and overridden with respect to their operational freedom under their Primary regulator, the Nigerian Communications Commission."

At the heart of the appeal is a jurisdictional question.

WASPAN argues that the Nigerian Communications Commission (NCC), not the FCCPC, is the primary regulator of telecommunications operators.

Relying on Section 90 of the Nigerian Communications Act 2003, the association argues that the NCC has exclusive responsibility for promoting competition and protecting consumers within the telecommunications industry.

According to the appeal, this is the "indication" referred to in Section 2(1) of the FCCPC Act, which limits the Commission's authority where another law has already vested regulatory powers in a sector-specific agency.

"The provisions of Section 90 of the Nigerian Communications Act, which vest the Nigerian Communications Commission ('NCC'), the primary regulator of the Appellant, exclusive responsibility for promoting fair competition and protecting consumers within the telecommunication industry, is the 'indication' envisaged under Section 2(1) of the Federal Competition and Consumer Protection Act, 2018," the appeal states.

The association also argues that Section 104 of the FCCPC Act should not be interpreted as allowing the Commission to override the regulatory framework established under the Nigerian Communications Act.

Another major plank of the appeal challenges the FCCPC's power to make the DEON Regulations.

WASPAN argues that Section 163 of the FCCPC Act allows the Commission to make regulations only in areas specifically authorised by the Act.

According to the association, the Commission stretched those powers beyond what the law intended by introducing the DEON Regulations.

The appeal relies on judicial authorities, including Fawehinmi v. Inspector-General of Police and State v. Egigia, to argue that statutory powers cannot be expanded beyond the clear wording of legislation.

One of WASPAN's strongest arguments is that the High Court's judgment contains an internal contradiction.

According to the appeal, the court accepted that the FCCPC does not possess licensing powers over telecommunications operators and cannot take over the statutory functions of the NCC.

However, it still upheld Paragraph 7 of the DEON Regulations, which requires operators to obtain FCCPC approval before offering certain digital lending services.

WASPAN argues that the two findings cannot stand together.

"Having found that the Federal Competition and Consumer Protection Commission lacks statutory licensing powers, the Honourable Lower Court ought to have declared Paragraph 7 of the DEON Regulations ultra vires, null and void... the Honourable Lower Court has by its inconsistency committed a legal somersault."

The appeal goes beyond regulatory issues to raise constitutional questions.

WASPAN argues that requiring FCCPC approval before operators can engage intermediaries or service providers interferes with their constitutional right to freely associate and conduct business relationships.

According to the association, those rights are protected under Section 40 of the 1999 Constitution and cannot be limited through subsidiary legislation.

Pending the appeal, the association wants the court to stop the FCCPC from enforcing several provisions of the DEON Regulations, including paragraphs 3, 7, 10, 12, 13, 14, 15, 16, 24, 27, 29 and 32.

It also wants the Commission restrained from imposing sanctions or penalties on its members.

WASPAN argues that allowing enforcement to continue could make any successful appeal meaningless.

"If the instant application is refused and the Defendant proceeds to enforce the regulations against the Plaintiff and its members and the Plaintiff's appeal succeeds at the Court of Appeal, the Court of Appeal will be presented with a fait accompli... and there could be no return to the status quo."

Although the dispute began over the regulation of digital lending services, its implications go much further.

The appeal could determine how Nigeria's courts interpret overlapping powers between sector regulators like the NCC and economy-wide regulators such as the FCCPC.

It could also shape the future of airtime credit services, fintech partnerships, value-added services and consumer lending regulation in the country's fast-growing digital economy.

Whatever the Court of Appeal decides is likely to become an important reference point for future disputes involving multiple regulators and the limits of delegated regulatory authority.