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MTN finally responds to High Court ruling

By Mutala Yakubu
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MTN Ghana has finally responded to the High Court’s ruling on the suit it filed against the National Communications Authority (NCA).

MTN says even though they respect the ruling they are dissatisfied with it.

The Commercial Division of the High Court on Tuesday, September 1, 2020, dismissed a request by MTN to secure a court order to quash its classification as a Significant Market Power (SMP) by the NCA.

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This was after the industry regulator had declared MTN as a Significant Market Power, and said that its dominance in the market space negatively impacted competition as it influenced consumer choice.

They, however, did not state if they will be seeking a review or an appeal, except to say that, it will “explore all available options and next steps in this process”.

Below is the response


Background

The Ministry of Communications in June this year, directed the National Communications Authority (NCA), to enforce provisions of the Electronic Communications Act, 2008 (Act 775) and the National Telecommunications Policy (NTP) to address disparities in market and revenue share in the telecommunications sector.

Following the directive, the NCA was expected to start the immediate implementation of specific policies to ensure a level-playing field for all network operators within the industry, with emphasis on maximizing consumer welfare as the growing dominance of MTN “has impacted negatively on competition and consumer choice, necessitating corrective action.”

According to NCA, MTN had a market share of 46% as at 2016, but now holds about 58% of voice and 68% of data in 2020.

But in a statement issued on Friday 26th June, 2020, MTN Ghana said although there were ongoing discussions with the regulatory authority to decide the way forward, NCA has already began implementation of the specified policies, hence, its decision to finally seek redress at the law court, after it was officially notified of the decision.

In the suit, MTN asked the Court to quash NCA’s decision, arguing that the regulator did not give it a fair hearing before declaring it a Significant Market Power; and that such a refusal offends the NCA Act itself.

MTN also wanted the High Court to prohibit NCA from further circulating or acting on the said decision.

But the Court, presided over by a Justice of the Court of Appeal, Samuel Asiedu, sitting as additional High Court Judge, said unless MTN successfully proved that NCA was “discharging its functions in a manner not sanctioned by law, it will not be proper for a restraint order to be issued against [NCA]”.

Based upon this, the Court said it was unable to stop NCA from circulating or acting on its declaration of MTN as a significant market player.

The Court opined that the opportunity offered to MTN to make input by way of data fulfills the requirement of due process and procedural fairness. It however added that MTN is still permitted by law to engage NCA on the implementation.