THE CHANGING MODEL IN SHARED TELECOMMUNICATIONS INFRASTRUCTURE OWNERSHIP: COMPETITION LAW QUESTIONS IN AN M&A QUANDARY

A. Introduction

In February 2026, a continental telecommunications service provider (the Acquirer) announced its proposed multi-billion-dollar acquisition of a multi-jurisdictional tower company (the Target). The deal (the Transaction) would see the Acquirer own shared telecommunications infrastructure platforms in several African countries; “shared” means the telecommunications infrastructure also serves Acquirer’s competitors. Notably, Acquirer has always held a minority stake in Target. The Transaction features Acquirer offering a hard-to-refuse substantial premium per share, an arguable increase in valuation, in an all-cash transaction to other shareholders of Target.

This Transaction is not exceptional in a global context; it is symptomatic. Globally, the neat post-2000 architecture of structural separation, where tower companies served as neutral, landlord-like entities agnostic to operators, is dissolving. In Europe, SBA Communications and American Tower Corporation have faced regulatory scrutiny as operators creep back toward infrastructure ownership. In Asia, Indus Towers in India, majority-owned by Bharti Airtel, continues to draw attention over preferential access concerns. In Latin America, Macquarie’s acquisition signals a further reshuffling of the infrastructure ownership deck. The trend is unmistakable: some telecommunications infrastructure, recently treated as a leased service with recuring expenditutre, is once again becoming a capital asset; with stronger players making the bid for such strategic acquisitions.

The multi-jurisdictional nature of the Transaction beams more interest on it. With multiple regulatory processes simultaneously unfolding across Nigeria, Cameroon, Côte d’Ivoire, South Africa, and Zambia, each jurisdiction will be applying its own substantive standards and procedural timelines;  each with distinct notification thresholds, substantive tests, and institutional capacities.

This thought piece does not evaluate the Transaction as the sum of the Acquirer and Target’s ambition; rather, it takes the recurring phenomenon of dominant telecommunications operators acquiring shared infrastructure at its provocation: an interrogation of the under-appreciated yet far-reaching competition law questions that attend such transactions. Who should be worried? What legal frameworks apply? What remedies are on the table? And critically, what questions should affected operators, regulators, and consumers be asking?

B. Vertical Integration Theory of Harm

Large-scale acquisitions raise two archetypal threats when firms integrate vertically: input foreclosure and customer foreclosure. In the telecom tower context, both are acutely present. Input foreclosure arises where the vertically integrated entity degrades, delays, or denies access to essential infrastructure inputs for competing operators. Customer foreclosure operates in the opposite direction: the integrated firm redirects its own demand exclusively to its captive upstream entity(ies), starving alternative infrastructure of the volume required to sustain operations and investment.

The tower industry has, since its commercial inception, operated on the principle of tenancy neutrality. A tower operator earns revenue per tenant; its rational interest is in maximising co-location, not in preferring one tenant over another. In the current instance for example, Target derives a majority of its revenue from the Acquirer, yet its services to Acquirer’s competitors remains significant, in revenue and impact terms. It is arguable that the moment Acquirer assumes ownership, that neutrality may become commercially and structurally untenable. The incentive to internalise tower margins, which the Acquirer has publicly identified as a key rationale for the deal, projecting significant cost savings from eliminating lease payments, raises serious questions. With Acquirer controlling a dominant share of Nigeria’s mobile subscriber market and now potentially controlling the tower infrastructure its competitors rely on, the ability calculus is not abstract; with billions of Naira in annual lease payments internalised, the financial incentive is arguably and arithmetically demonstrable.

No analysis of the Transaction’s antitrust dimensions is complete without engaging the efficiency arguments that Acquirer should advance. The elimination of double marginalisation (EDM) argument, that internalising tower lease costs will reduce its operational expenses and pass savings to consumers through lower data prices or improved network quality, has a textbook antitrust pedigree although these claims in merger analysis is rigorous and well-established: it must be merger-specific (not achievable through less restrictive means), verifiable (supported by credible evidence rather than projections), and sufficient to outweigh competitive harm.

C. The Regulatory Architecture: Two Umpires, One Pitch

In Nigeria, two regulators hold concurrent jurisdiction over the Transaction. First, the Federal Competition and Consumer Protection Commission (FCCPC) applies the test of substantial prevention and lessening of competition (SPLC) under the Federal Competition and Consumer Protection Act 2018 (FCCPA) and the FCCPC’s Merger Review Guidelines (2020) (the Guidelines). Second, the Nigerian Communications Commission (NCC), under the Nigeria Communication Act, 2023 (NCA), exercises sector-specific oversight with its own substantial lessening of competition (SLC) standard. Both are empowered to impose conditions, demand structural remedies, or, in extreme cases, prohibit the transaction.

Section 92 of the FCCPA defines a merger broadly to include any direct or indirect acquisition of control, a concept the Guidelines explicate with precision. Under Part 2, control is not limited to outright voting majorities; it encompasses material influence, contractual arrangements, access to commercially sensitive information or asset acquisitions as to confer influence disproportionate to economic interest. By parity of the Guidelines’ provisions, the Transaction is a regulated one and qualifies for a merger review as undertakings are brought under common control and combined thresholds are met. Given the scale of both the Target and the Acquirer’s Nigerian operations, with the target reporting over a billion dollars in annual revenue and the Acquirer’s Nigerian subsidiary generating revenues in the trillions of naira, it is almost unarguable that notification thresholds are not met.

Once a notifiable transaction is identified, Part 3 of the Guidelines activates a dual-phase review process: a Phase One investigation concluding within 60 business days for large mergers (extendable by a further 60 days), during which the FCCPC publishes a notice inviting third-party comments within 7 business days (paragraph 3.4), and a Phase Two proceeding triggered where initial concerns arise, involving a statement of objections, access to the file, and oral hearings. Critically, paragraph 3.54 provides that where a third-party submission raises competition concerns, the FCCPC will revert from any simplified procedure to a full-scale review; underscoring that silence by affected competitors is not neutrality but a forfeiture of the opportunity to shape the investigative record.

Part 7 identifies three theories of harm. Where harm is established, Part 9 expresses a clear preference for structural remedies and paragraph 9.19 affords third parties a final 10-working-day window to comment on proposed remedies before finalisation. This architecture, rigorously applied, transforms the FCCPC from a passive umpire into an active guardian of market structure, but only to the extent that market participants supply the information on which the FCCPC’s assessments will depend.

In parallel, the NCC’s powers under Chapter VI of the NCA enables it to impose access conditions, regulate rates under Section 137(4), and direct a dominant licensee to implement remedies under Section 92(4), independently of the FCCPA merger process and continuing after any merger approval. Section 78 of the NCA makes the NCC’s dispute resolution decisions binding and enforceable by the court as if they were judgments, without requiring fresh litigation on the merits. Section 53 of the NCA empowers the NCC to issue written directions requiring specified action to ensure licence compliance, with non-compliance attracting fines at the NCC’s discretion under Section 55. These are instruments of real-time regulatory management, not one-time approval conditions, and their continuing availability after merger completion means that the regulatory relationship between the NCC and a post-merger infrastructure owner is ongoing, not concluded at the moment of clearance.

While we are confident that mega deals will always return to answer the necessary questions back at home, especially one that threatens SPLC, until then, what is next?

D. What Well-Advised Parties Should Be Seeking

Silence in regulatory affairs is not neutrality; it is an election, and its consequences can be irreversible. In the face of disruptive mergers + acquisitions, it is not unusual to find competitors placing misplaced faith in regulatory omniscience as they assume that if a deal were truly harmful, the regulator would block it or impose conditions. This is a dangerous assumption. Regulators rely on market participants to supply information. Without third-party submissions, the regulator operates in an information vacuum, reliant on the merging parties’ economic models.

For competitors in potentially competition-distorted markets, a well-structured legal strategy should consider the following avenues simultaneously: formal submissions to each relevant merger authority with market dependency data and competitive harm modelling; requests for specific access conditions including fair, reasonable, and non-discriminatory (FRAND) pricing, colocation rights, and quality of service guarantees; engagement with sector regulators on the adequacy of existing infrastructure sharing guidelines; and independent legal advice on contractual renegotiation rights under existing tower lease agreements. These are not mutually exclusive options; they are mutually reinforcing components of a coherent competitive response.

E. Conclusion

In competition law, as in markets, the early mover captures the advantage. The window for shaping regulatory outcomes is measured in weeks, not months or years. Infrastructure mergers at this scale and strategic significance are not merely financial transactions. They are, in the most literal sense, constitutional moments for the competitive economies in which they occur; moments that determine, for years or decades, who can compete, on what terms, and at what cost. The regulatory choices made now, the conditions imposed, the access frameworks established, and the precedents set will shape the competitive structure of Nigeria’s, nay Africa’s telecommunications market long after the immediate deal is forgotten.