MTN’s application for Judicial Review of SMP declaration dismissed

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An Accra High Court, presided over by Justice JA Asiedu has today dismissed a case in which MTN Ghana was challenging a declaration by the National Communications Authority that MTN is a significant market power (SMP) in Ghana’s telecom industry.

The declaration meant the the NCA would implement some anti-trust regulations with the view to ensuring some balance in the industry.

MTN had therefore gone to court to seek redress against the declaration and against what it called “procedural breaches” in the whole process.

The matter was initially slated for October 15, 2020 but time was abridged on an application by the NCA, and Justice Asiedu sitting as an additional High Court Judge delivered the ruling dismissing MTN’s application.

Lawyers for MTN are said to be waiting at the Court premises to secure a certified copy of the ruling, which they are likely appeal.

Background

In June this year, the Communications Minister, Ursula Owusu announced that the NCA had been directed to declare MTN SMP and start implementing the necessary regulations to “cure the imbalance” in the industry.

In the announcement, the Minister said MTN had for three consecutive years held about 75% shares of the entire telecoms sector, in terms of subscriber base and revenue share, adding that there is need to cure that imbalance.

Indeed, Ghana’s telecoms industry regulation indicates if one operator crosses the 40% market share mark, the regulator should consider the possibility of declaring that player SMP. But MTN has, for many years, held between 50 – 70 per cent market share, yet no government has bothered to even cough about declaring it SMP until now.

Currently, MTN commands about 55% voice market share, about 70% data market share and about 70% of mobile money market share, plus over 70% of all calls in the country terminates on its platform. It was also the first to go 4G and remained so for years because the other could not afford the compatible spectrum for 4G.

Implications 

However, MTN’s feat did not come on a silver platter, as the company kept investing heavily in research and development and kept rolling out innovations based on insights, while other telcos virtually looked on.

But the regulator has a duty to ensure a viable industry, hence the move to correct the lingering imbalance.

However, experts have urged the regulator to thread cautiously because the move could also give a negative indication to potential investors that Ghana is a place where if one invests and grows big, their growth will be curtailed.

Some concerns have also been expressed about the possible impact of curtailing MTN’s growth on several other sector, as many businesses depend on MTN to run and create jobs.

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