Court dismisses MTN’s suit against NCA over SMP declaration

A suit filed by MTN Ghana to restrain the National Communication Authority (NCA) from declaring the telecommunication giant as a Significant Market Power (SMP) has been dismissed by an Accra High Court.

This comes after MTN filed a suit asking the court to review the decision by the Authority, which they say violates their right to due process.

However, the Commercial Division of the Accra High Court dismissed the suit in favour of NCA giving the regulatory body the permission to regulate the telecommunication space to ensure fair competition and thereby break MTN’s monopoly on the telecommunications market.

The decision to declare MTN Ghana as an SMP is in response to a directive by the Ministry of Communications to the NCA that seeks to address disparities in the market and revenue share in the telecommunications sector.

The Electronic Communications Act, 2008 (Act 775) which provides for the regulation of electronic communications was to be enforced by the NCA to ensure equity for all network operators in the industry.

Although MTN admits to having engaged the NCA, the Authority has already begun implementing the policies specified in the act. The telco giant thus sought redress with the court for a review of the regulatory body’s decision.

In the suit filed by its lawyers, MTN Ghana argued that the NCA had violated their right to due process by not giving them a fair hearing and going ahead to declare MTN as an SMP.

They bemoaned the fact that the regulatory authority had proceeded to impose punitive measures which they say had exacting consequences on their business.

This they say was in breach of their right to be heard and a violation of procedural fairness.

The NCA, on the other hand, refuted the claims by MTN saying MTN, as well as other mobile network providers, had been involved in a series of consultations since July 2014 concerning the regulation of market competition.

Moreover, an Analysis Mason Report in 2016 declared MTN as SMP with about 46% share in the Retail Mobile Voice Market. As of 2020, 4 years after the report was published, MTN now has a market share of about 58% of voice and 68% of data.

As per the National Telecommunications Policy (2005) of Ghana, “any operator with 40% or more market share in voice, data, SMS and value-added services is considered SMP”

The Court dismissed the suit, stating that the NCA did not act contrary to law. It cited sufficient evidence of consultations between MTN and NCA, which allowed for the NCA to act accordingly.

According to the Court, the opportunity offered to MTN to make input in the process by way of data, fulfills the requirement of due process and procedural fairness.

MTN is however, still permitted by law to engage NCA on the implementation.

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