The Judge at the Civil Law Court ‘B’ at the Temple of Justice on Thursday, April 25, 2019, reserved a ruling to determine whether an injunction order that enjoins the Liberia Telecommunication Authority (LTA) from enforcing its order 0016-02-25-19 was unconstitutional.
The LTA order established floor prices and surcharge for on-net voice calls and data, after Orange Liberia, a GSM service provider, declared the act unconstitutional.
Judge Schaeplor Dunbar took the decision immediately after both the lawyers of LTA and the Orange Liberia, the party that sought the court’s intervention, rested with their respective legal argument to convene the judge to rule in their favor.
Floor prices are price control mechanisms imposed by government or other authority to regulate how low in price a provider can charge for a product, good, commodity or service; while surcharge refers to an additional payment or tax heaped upon an existing charge.
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’s legal team said, the lawsuit against them was done 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 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.”
However, 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.
However, 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 serving stakeholders the consultation document to inform the input comments and suggestion of stakeholders including Orange.
However, the LTA failed to supply said document until December 5, 2018, dispute repeated request by them, thereby making it difficult for Orange to make timely determination of the implications and input the authority’s action would have on it, the company said.
It was due to that the 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 regulation should be revisited to exclude current valid licenses and they should be limited only to entities applying for new licenses or renewed 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 the Orange pre-existence valid and unexpired licenses.
“That while, 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 problem affecting the consultation process and clearly without regard,” the Orange-Liberia claimed.
Meanwhile, the LTA maintains that the statutory right of Orange Liberia to challenge the price floor order “is not a blank check to derail and delay such exercise, absent meritorious legal basis.”