The Minister of Communications, Ursula Owusu-Ekuful, has welcomed the decision of the Commercial Division of the High Court in dismissing MTN’s suit against the National Communications Authority.
According to her, the ruling will give the regulator the opportunity to begin work on the implementation of specific measures within the telecommunications industry to provide a level-playing field for all network operators.
The Minister said the telecoms policy has made provision for any operator that has more than 40% of the market to be declared as dominant and that is what the court has done.
“I am glad that the court has dismissed MTN’s application for judicial review and indicated that the NCA went through the proper processes to declare it as a significant market power. I am sure they will work very quickly to continue the processes that were suspended because of the court case,” she said.
Madam Owusu-Ekuful also said that although NCA could be blamed for not taking steps to correct the current imbalance in the telecom sector earlier, it is unhealthy for Ghana to have a single dominant telecom operator with a huge chunk of the market share.
“It is not healthy for any country to have a single dominant operator which has about 70 percent of the revenue market share and 60 percent of the total market share. It is unhealthy, and that is why certain measures need to be kicked in.”
“We want the regulator to sit with all players and develop sustainable mechanisms to address the current imbalance and ensure that it doesn’t happen again. Maybe, we will also fault the regulator for not acting early enough because the signs have been there as far back as 2015 and they have been aware of that because it was in 2015 that the study was commissioned and the results came out either late 2016 or early 2017, and the regulator has been aware of that.”
“So, it is incumbent they build on that, updated that, and that led to the declaration earlier in June this year, so I’m hopeful that they will act timeously to put in place the measures that correct the imbalance.”
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 to address disparities in market and revenue share in the telecommunications sector.
Following the directive, the NCA was expected to start an 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.”
Following this announcement, MTN Ghana made known its intent to contest NCA’s decision to break its monopoly after declaring the network operator as a Significant Market Power (SMP).
On Tuesday, September 1, 2020, the Commercial Division of the High Court in Accra dismissed the suit filed by MTN. In dismissing the suit, the Court held that there is sufficient evidence of consultation for the NCA to so act, and that NCA did not act contrary to law.
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.
The Court however added that MTN is still permitted by law to engage NCA on the implementation.
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.