MTN Ghana Takes Telco Regulator to Supreme Court Over Declaration of Market Dominance

MTN Ghana has petitioned the supreme court in the country to review the telecom regulator’s declaration that the operator has market dominance in the country.

This comes after a Commercial High Court in Accra dismissed the telecoms giants call to review the decision of the National Communications Authority (NCA) to declare it as a Significant Market Power (SMP) in the country.

The telco wants a reversal of the decision as it would result in stricter regulation and stronger competition for it in the country. According to the company, the designation would limit its growth and performance.

In June, the National Communications Authority (NCA) designated MTN a significant market power, a status that requires the regulator to take corrective action.

MTN Ghana has approximately 58% of the voice market

The telecom regulator has defended its decision to label MTN Ghana as an SMP. The regulator revealed that a report by Analysys Mason in 2016 showed MTN as an SMP with about 46% market share.

It further clarified that since then MTN has grown to have approximately 58% of the voice market and 68% of the data market in Q1, making it an SMP according to the Electronic Communications Act, 2008 (Act 775)

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. 

However, MTN has claimed otherwise arguing that the declaration of MTN as SMP was done in breach of their right to be heard and a violation of procedural fairness.

While dismissing MTN’s case last week, the high court said that there is sufficient evidence of consultation for the NCA to act as it did, and that NCA did not act contrary to law.

With the latest petition, the Supreme court serves as the last resort if MTN wants the decision to be reversed. However, there is no indication of whether MTN has a new piece of evidence that is different from what was presented at the high court.

Stronger competition

If MTN Ghana’s petition fails, the telco will be obliged by law to reveal information regarding its network or service to other operators. This includes planned deployment of equipment to other operators.

By doing this, MTN will have revealed some of its tightly held secrets and strategies in the country. This will reduce its competitive edge against competitors like Vodafone Ghana, Airtel Ghana and Glo Mobile in the market.

SMP label – Promoting Competition or Revenue drive

The move by the regulator to label MTN Ghana as the SMP now can be seen from different angles. While the most obvious plot is to boost competition in the market, the data revealed shows that they are already recognized as the most dominant operator in the country since 2016. The question is why did the regulator wait this long?

The SMP label puts MTN Ghana’s huge coffers under stricter regulation by the NCA. This means that the regulator is now backed by law to charge MTN more than its competitors if it wants to.

Whichever party wins the legal battle, Ghana’s telecom sector is on track to face some significant changes.