Court dismisses MTN's application for judicial review of SMP declaration

An Accra High Court has thrown out an application by MTN Ghana seeking to reverse a decision by the National Communications Authority (NCA) to classify it as a Significant Market Player (SMP) in the telecoms industry in Ghana.

The court, presided over by Justice J.A. Asiedu, at its sitting on Tuesday, September 1, 2020, dismissed MTN Ghana's application for judicial review and awarded a cost of GH¢10,000 against the mobile network company giant.

According to state-owned Daily Graphic, the ruling means “that the NCA can now take remedial measures against MTN to promote competition, protect other mobile network operators and consumers.”

Scancom Plc. (MTN Ghana) was formally notified on June 9, 2020, of the NCA decision to declare MTN as a Dominant/Significant Market Power (SMP).

This essentially means that special regulatory restrictions would be enforced to potentially limit the company’s growth, performance, innovativeness and its competitiveness in the telecoms market.

“MTN Ghana acknowledges the NCA’s duty and powers to promote fair competition amongst licensed operators in Ghana’s telecommunications sector within the relevant laws of Ghana and acceptable global industry best practices.

“Regretfully, the manner of the recent declaration of MTN as a Dominant/SMP raises concerns about clear procedural breaches and substantive issues,” MTN Ghana said in a press release after heading to the High Court to seek the judicial review.

In June this year, the Communications Minister, Ursula Owusu-Ekuful, 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.

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 to 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.