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The High Court (Commercial Division) has dismissed attempts by mobile telecommunications giant, MTN Ghana to secure a court order to quash its classification as a Significant Market Player (SMP) by the National Communications Authority (NCA).
The industry regulator in a 9th June 2020 letter entitled “Implementation of Policy Initiatives to correct Telecommunications Market Imbalance” declared that MTN Ghana’s dominance in the market space negatively impacted competition as it influenced consumer choice.
MTN however disagreed with the regulator’s position and headed to the High Court for redress.
MTN asked the Court to quash NCA’s decision, arguing that the regulator did not give MTN 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.
In its decision however, 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.
Following the directive, the NCA is expected to start 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 according to the regulator “has impacted negatively on competition and consumer choice, necessitating corrective action.”
Industry watchers criticize NCA move
Some industry watchers had earlier appealed to government to tread cautiously with its plans to implement policies to limit any market imbalance in the telecommunications sector.
They also cautioned government not to subjectively use regulations against law-abiding businesses.
They said the move appears to be one that will punish innovative and successful businesses.
Breaking MTN’s dominance not a punishment – Telecoms Analyst
But telecoms analyst, Patrick Boateng said the decision by government to provide a level-playing field for all network operators and break the dominance of MTN Ghana in the telecommunications sector is not a punishment.
He said the move was to create an equal space for all industry players and forestall negative competition.