MTC loses case on its call costs

A LEGAL challenge which the dominant player in Namibia’s mobile phone sector, MTC, pursued against a Namibian Communications Commission decision that forced it to lower the price of some of its services was dismissed in the High Court in Windhoek yesterday.

MTC was asking the court to set aside and declare as unconstitutional and null and void the NCC board’s decision to implement a price cap on the tariffs that cellphone operators charge for calls made from their networks to other cellphone operators’ networks and to fixed-line phones.The company’s review application against the NCC, Telecom Namibia and Powercom (Pty) Ltd, which owns MTC’s main competitor, leo, was dismissed in a judgement delivered by Judge Dave Smuts.Judge Smuts also ordered MTC to pay the legal costs of Telecom Namibia and leo in the matter, and to pay 75 per cent of the NCC’s costs.While the NCC – predecessor of the current Communications Regulatory Authority of Namibia – emerged from the case on the winning side, it also had to stomach some cutting criticism from Judge Smuts about the way it kept a record of the decision which sparked MTC’s legal action.’MTC has with justification criticised the slovenly manner of decision making and record keeping by the regulator,’ Judge Smuts commented in his judgement.The NCC had a duty to keep proper minutes of its commissioners’ meetings and to record the decisions taken by them, the judge said.’The commission failed dismally in this fundamental duty,’ he said.The NCC was also guilty of an unacceptable delay in providing the record of its decision-making process to the court and MTC, the judge said.The NCC’s board decided on February 9 last year that Namibia’s cellphone network operators had to stop charging more for calls that their subscribers make to other operators’ networks and to fixed-line telephones than the tariffs they were charging for calls made on their own networks only.The NCC directed that these price changes had to be implemented by March 1.When the minutes of the meeting where the decision was taken were made available by the NCC, these turned out to be ‘inexplicably cryptic and extremely brief’, Judge Smuts noted.However, the decision which had been made was set out in letters which the NCC sent to MTC, Telecom Namibia and leo, he added.MTC’s attack against the decision was based on two grounds. The company claimed it had not been given a proper hearing before the NCC took its decision, and claimed that the NCC did not show that its interference with the tariffs in the cellphone industry had a rational basis.Neither of the two grounds swayed Judge Smuts, though.He found that the NCC provided reasons to MTC, Telecom Namibia and leo for its decision.’It is not for this court to consider whether there may have been better options open to the Commission in setting prices, particularly in the context of a decision of a specialist administrative body, as long as the decision taken represented a reasonable option open to the NCC,’ the judge said.On the second leg of MTC’s attack against the decision he noted that a consultative process over a period of about 18 months had preceded the decision.At an early stage of this process, in May 2010, MTC and the other cellphone service providers were already informed that the NCC considered a price cap if the tariffs charged for calls to fixed-line phones or other cellphone networks were not reduced, the judge also noted.He concluded that MTC had in fact been given ‘a very ample opportunity to be heard’.He remarked: ‘MTC only has itself to blame if it considers that its right to be heard had not been fully utilised or explored by it. Not only had the proposed options been spelt out, but MTC was repeatedly invited to place its views on the proposals to the Commission. It elected not to do so but instead chose to engage in point taking about the process.’Senior counsel Theo Frank, assisted by Sakeus Akweenda, represented MTC in the case. Andrew Corbett represented the NCC, and Raymond Heathcote, SC, and Natasha Bassingthwaighte represented Telecom Namibia and leo.