-As Judge Dunbar denies Orange’s petition for judicial review filed against LTA
The Civil Law Court ‘B’ at the Temple of Justice on yesterday denied contentions raised by Orange –Liberia, challenging the Liberia Telecommunication Authority (LTA) order 0016-02-25-19 that 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.
Denying Orange‘s petition for judicial review, Judge Scheaplor R. Dunbar declared “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,” adding costs ruled against Orange-Liberia.”
Judge Dunbar further ruled that, “we note from the record that LTA engaged all the stakeholders in the telecommunications sector and got their comments and inputs before promulgating the order, their comments and inputs were taken into consolidation promulgating the challenged order.”
However, Orange-Liberia (petitioner) further argued 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.”
The petitioner also argued 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has no legal rights to impose floor price and levy surcharges on telecommunications goods and services, and that the repealed provision was related to excise tax, which Orange claimed was within the authority of the Liberia Revenue Authority (LRA).
Dunbar’s ruling said, the LTA’s order was promulgated in conformity with the Telecommunication Act of 2007, stressing “And that the said order does not violate any provision of the Revenue Code.”
According to Judge Dunbar, as a regulatory authority, LTA does not have to obtain the full agreement of all service providers and stakeholders before it can promulgate an order, rule or regulation.
“What the Act mandates is that LTA should conduct a public consultation before the promulgation and publication of such order, rule or regulation,” Judge Dunbar indicated, adding,” Section 5.4 of the Guidelines for Consultation Process to Develop Regulation (2009) states that the LTA shall retain final decision authority with respect to the promulgation of regulations and amendment thereto.”
In counter argument, LTA accused Orange-Liberia of being deceptive on the matter when its letter dated April 15, 2019 assured LTA that it was in full compliance with the floor price and regulatory fee.
LTA also argued that in consideration of Orange’s request for postponement of the deadline was to enable consultation and based on Orange’s own determination that additional time was needed, the request was granted.
“The consultation process was extended to February 20, 2019, during which the time Orange made several presentations to the LTA board of commissioners on the floor price and surcharge and submitted a letter dated February 19, 2019 agreeing with the LTA on the implementation of the floor price,” LTA argued.
However, Orange claimed that In October 2018, LTA initiated a stakeholder’s consultation process to which Orange and others were invited for the purpose of evaluating LTA’s intention to implement floor prices and surcharges for on-net voice calls and data, “which consultation was subject to LTA’s serving stakeholders with the consultation document to inform the inputs, comments and suggestions of stakeholders,” but, accordingly, “LTA failed to supply said document until, December 5, 2018, thereby making it difficult for Orange to make timely determination of the implications and impact LTA’s action would have on it.”
They claimed that their reaction and comments to the draft regulations suggested that the draft license fee and regulations be revisited to exclude current valid licensees and that they should be limited only to entities applying for new licenses or renewal of license and that their reaction was that their application of the proposed regulation to existing license would amount to a unilateral and illegal abrogation of the terms and conditions of their existing licenses.
“While we were still not agreeable to the implementation of floor prices on the services it provides, the LTA elected to place additional fee on Orange’s services by imposing surcharges for on-net minute and megabyte,” Orange’s lawsuit claimed, adding, “thereby exacerbating the problem affecting the consultation process and without regard to the several reservations Orange had made in several letters to LTA.”