The Full Bench of the Supreme Court is expected today, July 1, to begin hearing final legal arguments between lawyers of both the Liberia Telecommunication Authority (LTA) and Orange-Liberia whether or not to allow the LTA to enforce its surcharge fees, which resulted from new regulations imposed by the LTA against mobile telecommunications operators, particularly Orange-Liberia.
The surcharge is a government revenue generator from the telecommunications sector which was recently implemented to replace the 5 percent tax. The final argument will now set the legal stage as the Supreme Court makes a lasting determination into the matter. The schedule of the final arguments comes days after reports that the Chief Executive Officer of Orange Liberia, Mamadou Coulibaly, was invited to the offices of the National Security Agency to answer to charges of his suspected involvement in the June 25 riot and violence which led to the setting up of road blocks and burning tires to barricade the Tubman Boulevard near the Old Road junction.
It was alleged that the riot was actually masterminded by highly placed individuals said to be linked to a new GSM company shortly to be established in Liberia.
Initially, Judge Scheaplor R. Dunbar of Civil Law Court ‘B’ had denied the Orange-Liberia review of the LTA’s enforcement of regulation it imposed and subsequently lifted the stay order he had placed on the enforcement exercise.
Judge Dunbar had at the time 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.” The Judge 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.
“LTA does not have to obtain the full agreement of all service providers and stakeholders before it can promulgate an order, rule or regulation,” said Judge Dunbar in his ruling which was challenged. Initially, Orange Liberia had complained to the Judge, challenging the LTA’s order 0016-02-25-19, which is 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 argued that, despite the regulatory authority vested in LTA over the telecommunications sector and its authority to issue regulations in the 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 the Legislature and published on August 29, 2017.”
They further contended that LTA has no legal right 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 a counter argument, the LTA maintained 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.
But 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, 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 vested with the regulatory authority over the telecommunications sector to issue regulations, 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 further 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 suspend the imposition of an additional surcharge on all local calls until the Board of Commissioners holds a consultation meeting. However, up to the filing of the lawsuit against LTA, Orange Liberia said, the consultative meeting has not been held.
In a counter argument, the LTA accused Orange-Liberia of proceeding in bad faith, because all 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.
The LTA also argued that Orange requested for postponement of the deadline set for the completion of the consultation 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,a day ahead 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 and 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.”
The LTA further 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 serving LTA’s stakeholders the consultation document to inform them of the input comments and suggestions 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. These are some of the claims and counterclaims which the Full Bench will likely be considering before making a final determination.