High Court Dismisses MTN’s Case Contesting the NCA’s Decision to Declare Them as a SMP in Ghana
The Commercial High Court in Accra has dismissed the case brought before it by Mobile Network Operator, MTN Ghana, challenging the decision by the National Communications Authority (NCA) to declare MTN as a Significant Market Power (SMP) in Ghana.
The Applicant had argued that the declaration of MTN as SMP was done in breach of their right to be heard and a violation of procedural fairness. The Respondent, NCA, on the other hand provided documentary evidence of consultations since 2015 which culminated in a research conducted by Analysys Mason in 2016. The report in 2016 declared MTN as an SMP with about 46% market share. NCA further argued that MTN had since 2016 increased its market share and as of the first quarter of 2020, held approximately 58% of the voice market and 68% of the data market.
In dismissing the suit, the Court held that there is sufficient evidence of consultation for the NCA to act as it did, and that NCA did not act contrary to law. The Court said that the opportunity offered to MTN to make inputs by way of data fulfils 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.
The Electronic Communications Act, 2008 (Act 775) states that the Authority may classify a network operator or service provider as dominant if individually or jointly with others that network operator or service enjoys a position of economic strength that enables it to behave to an appreciable extent independently of competitors and users. In other words, an operator which can take certain actions especially related to pricing which cannot be replicated by other players in the same market segment has a significant market power.