Justice Wolokollie Halts LTA’s Enforcement of Surcharges Fees Against Orange-Liberia

Associate Justice Wolokollie.jpg
Associate Justice Jamesetta Howard Wolokollie

The Liberia Telecommunication Authority (LTA) would now have to wait probably for days or months to hear whether or not the Full Bench of the Supreme Court would allow the LTA to enforce its surcharge fees which resulted from new regulations imposed by the LTA against mobile telecommunications operators, particularly Orange-Liberia, that has sought legal redress.

This stemmed from an oral mandate by Chamber-Justice Jamesetta Wolokollie when on Monday, June 1, she heard legal arguments regarding the LTA’s enforcement of the surcharge fees which is currently on appeal before the Supreme Court.

The surcharge is a government revenue generator from the telecommunications sector and which was recently implemented to replace the 5 percent tax.

Although Justice Wolokollie did not prescribe any punishment against the LTA for disrespecting the court, while the case is pending, the LTA were said to be going above to institute the surcharges fees’ collection against Orange-Liberia. But Justice Wolokollie mandated the LTA to immediately stop its enforcement of the surcharge fees pending the hearing of the Orange-Liberia contention against then Judge Scheaplor R. Dunbar of the Civil Law Court ‘B’ ruling.

Judge Dunbar by then ruled that “The petition for judicial review is denied and dismissed, and the resistance is sustained. The stay order of April 15, 2019, is lifted. LTA may proceed to enforce and implement the order and costs ruled against Orange-Liberia.”

Dunbar also explained that the LTA’s order was promulgated in conformity with the Telecommunication Act of 2007 and that the said order does not violate any provision of the Revenue Code.

Judge Schaeplor Dunbar (center) earlier ruled in favor of the LTA, whose chairman is Ivan G. Brown (right). Orange Liberia, led by its CEO, Mamadou Coulibaly (left), filed an appeal to the Supreme Court.

“LTA does not have to obtain the full agreement of all service providers and stakeholders before it can promulgate an order, rule or regulation,” Dunbar challenged ruling said.

Initially, Orange -Liberia had complained to Dunbar, challenging the LTA’s order 0016-02-25-19, which was intended to establish price floors for on-net voice and data services, a regulatory fee on telecommunications goods and services, and a regulatory surcharge for on-net voice and mobile data services.

The company’s argument has been that, despite the regulatory authority vested in LTA over the telecommunications sector and its authority to issue regulations in exercise of said authority, “LTA cannot determine and impose surcharges as same is not within its regulatory authority, as that authority was removed by an Act passed by Legislature and published on August 29, 2017.”

They further contend that LTA has no legal rights to impose floor price and levy surcharges on telecommunications goods and services and that the repealed provision was related to excise tax, which Orange-Liberia claimed was within the authority of the Liberia Revenue Authority (LRA).

In counter argument, the LTA had argued that to ensure price stability in the telecommunications market, particularly among GSM service providers, which include Orange Liberia, the regulator introduced both the price floor and the surcharge for on-net voice calls and data. Orange Liberia is challenging the legality of the LTA’s action.

In their petition for “Judicial Review,” the Orange Liberia legal team argued that though they were in agreement with the introduction of the floor price, but as for the surcharge for on-net voice calls and data; they were not consulted by the LTA on its enforcement, which Orange Liberia sought the court’s approval to suspend.

Orange Liberia also argued that, though LTA is invested with the regulatory authority over the telecommunications sector to issue regulation, it cannot determine and impose surcharge in the absence of the legislature.

They further argued that the LTA’s action, being a matter of public interest, would affect the common people who have extensive communications needs, since Orange Liberia would be forced to cancel some of its marketing strategies as well as increase its prices.

Orange Liberia said the House of Representatives, through its committee on Posts and Telecommunication, cited the LTA to a meeting. During that meeting, Orange Liberia claimed that lawmakers instructed LTA to provisionally cut off imposing additional surcharge on all local calls until the Board of Commissioners held a consultation meeting. However, up to the filing of the lawsuit against LTA, Orange Liberia said, the consultation meeting had not been held.

In counter argument, the LTA accused Orange-Liberia of proceeding in bad faith, because all of the GSM stakeholders, including Orange Liberia, were in agreement over the enforcement of the order through a consultation meeting with them.

“Orange’s action was bad when they only want to accept certain provisions of its licenses and attempt to reject other provisions; and our decision was not abrogation or termination of Orange’s license, but rather full implementation of the licenses proffered by Orange-Liberia,” the LTA argued.

LTA also argued that Orange also requested for postponement of the deadline set for the completion of the consultation’s meeting, stressing “LTA’s own determination that additional time was necessary; the process was extended to February 20, 2019, on the implementation of the price floor and regulatory fee.”

But Orange-Liberia claimed that they were notified on February 19, 2019, of the February, 20, 2019, deadline.

The LTA also argued that Orange-Liberia has not been in compliance with the price floor and regulator fee; “therefore we fully engaged Orange-Liberia and all stakeholders during the consultation process, leading to the promulgation of LTA’s order 0016-02-25-19, establishing price floors for on-net voice and data services a regulatory fee on telecommunication goods and  services. And the LTA agreed through its February 19, 2019, letter to implement floor price and a regulatory fee.”

LTA also argued that Orange-Liberia cannot now change its position after having participated actively in the consultation process leading to the promulgation of the challenged order.

But Orange-Liberia claimed that in October 2018, LTA initiated a stakeholder’s consultation process, to which Orange-Liberia and others were invited for the purpose of evaluating LTA’s intention to implement price floor and surcharge for on-net voice calls and data.

They claimed that the consultation was subject to LTA’s serving stakeholders the consultation document to inform the input comments and suggestion of stakeholders, including Orange.

But the LTA failed to supply said document until December 5, 2018, thereby making it difficult for Orange-Liberia to make timely determination of the implications and input the LTA’s action would have on it, the company said.

It was due to this situation that Orange-Liberia requested an extension of the deadline to allow it to react, which they claimed LTA rejected.

“Our reaction and comment to the draft resolution were that the draft license fee’s regulation should be revisited to exclude current valid licenses, and they should be limited only to entities applying for new licenses or renewal of existing licenses,” Orange-Liberia claimed.

They further argued that their reaction as an accurate statement of the law that the application of the proposed regulations to existing licenses would amount to unilateral and illegal abrogation of the terms and condition of Orange-Liberia pre-existing valid and unexpired licenses.

“Still not agreeable to the implementation of price floor on the services it provides and in discussion with LTA, the authority elected to place additional fee on its services by imposing surcharges for on-net minute and megabyte, thereby exacerbating the problem affecting the consultation process and clearly without regard,” Orange-Liberia claimed.



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