Rejoinder – Gov’t Setting Bad Precedent With Closure Of Pro-NDC Stations
The National Communications Authority (NCA) has taken note of comments made about the NCA by ex-President John Mahama during a courtesy call on him by executives of the Ghana Journalists Association.
Mr. Mahama accused the NCA of closing radio stations in order to stifle free speech, adding that with the evolution of technology, spectrum would not be necessary before one can broadcast.
NCA wishes to respond as follows:
- In 2017 the NCA embarked on an Audit of all Authorised FM Radio Broadcasting stations in Ghana.
- As a result of the audit findings, the NCA imposed fines on FM Radio Stations found to have been operating with expired authorisations.
- The NCA closed down ten (10) of these FM stations in December, 2017 for failure to respond to the Notices of Suspension of Operations sent to them.
- Dissatisfied with the Authority’s decision, some of the defaulting FM Radio stations who were fined in accordance with the due process of law filed appeals at the Electronic Communications Tribunal (ECT) in November, 2017.
- Whilst some stations filed their appeals in their individual capacity others filed as a group under the auspices of Ghana Independent Broadcasters Association (GIBA) on 3rd November, 2017.
- The Authority in February, 2018 closed down nine (9) FM stations operating with expired authorisations, for failure to the take the necessary regulatory actions after the Authority reduced all fines to a maximum of one (1) year in December, 2017.
- On 18th June, 2018 the ECT Panel chaired by the learned Prof. Date-Bah JSC. (Retired) delivered its unanimous decision in the case of Ghana Independent Broadcasters Association (GIBA) vrs National Communications Authority (NCA) (Appeal No.: ECT/APP/02/2017).
- Even though the Tribunal in its decision quashed the fine as sought by the plaintiffs, the Tribunal also stated that a person with an expired FM Radio Authorisation reverts to the same position as a fresh applicant and as such did not have a valid authorisation with which to operate.
- Dissatisfied with the Tribunal’s decision, one of the defaulting FM Radio Stations, Medeamaa FM Limited once again appealed to the ECT, arguing amongst others that since they had already submitted their application for renewal of their authorisation, the Authority had no right to close them down.
- The Tribunal in its ruling on an application for stay of execution pending appeal in the case of Medeamaa FM Limited vrs National Communications Authority (Appeal No.: ECT/APP/012/2018) delivered on 1st April, 2019, the Justice Date-Bah led Panel dismissed Medeamaa FM’s application and agreed with the NCA that any renewal application submitted after the expiration of an Authorisation was an invalid renewal application and as such it could not be processed. The Tribunal stated that the remedy available to any such station is to submit a fresh application to the Authority for consideration.
- The Authority was therefore within its mandate when it proceeded to close down stations operating without authorisation.
- Subsequent to the decision in point number 10; Medeamaa FM vrs NCA, the Authority closed down thirty-eight (38) stations in May and June 2019 for operating without valid authorisations.
- Once again some stations filed new appeals at the ECT in June 2019.
- Whilst those cases were pending before the Tribunal, the Chairman of the Tribunal submitted his resignation letter to the Public Services Commission (PSC) in June 2019. In his resignation letter he stated that his resignation was to take effect on 1st July, 2019.
- The PSC accepted his resignation and recomposed the Tribunal’s Panel and as a result new members were appointed in August 2019.
- The new Panel could however not start sitting until after the legal vacation which ended 30th September, 2019.
- The new Panel Chaired by Dr. Kissi Agyabeng resumed sitting on 8th October, 2019.
- During the intervening period some stations that had legal actions before the Tribunal against the NCA filed a Notice of Discontinuance. At its sitting on 8th October, 2019, the Tribunal considered the Notice of Discontinuance and accordingly struck out the appeal as withdrawn and without liberty to reapply.
- Subsequent to that one station on 10th October, 2019 also appeared before the ECT and withdrew its appeal, and same was struck out by the Tribunal as withdrawn.
- It is significant to note that during the pendency of these appeals, the NCA could not possibly consider the fresh applications submitted by the same stations in accordance with the previous ruling of the ECT, precisely because the litigation they had themselves initiated was still pending.
It should be noted that while the possibility exists that these stations re-applying may not receive their old spectrum, so far all the all stations which have re-applied in line with the ECT’s decision have not had their Spectrums re-assigned and have been given their old spectrum.
The NCA wishes to reiterate that any organisation that seeks to run TV or FM broadcasting will need a frequency, and the issuance of frequency is dependent on availability as it is a finite resource. The advancement of technology does not make frequency or spectrum redundant.
Precisely because spectrum is finite, it is important that as the organisation mandated by the laws of Ghana to manage this resource, the NCA does so diligently and according to international best practice as set out by the International Telecommunications Union, of which Ghana is a key member representing the Africa Region on the ITU Council.
We take this opportunity to inform the general public that the Authority has a State of the Art Broadcast Monitoring System to monitor the spectrum and to ensure that there is order in its allocation, operation, management and judicious use.
The NCA will want to reiterate that it is committed to executing its mandate as set out by law and will continue to work hard in developing the telecommunication industry in Ghana. The Authority further calls on authorisation holders to adhere to the tenets and regulations of their authorisations strictly, and ensure that they do so within the realm of the law.
Issued by the National Communications Authority:
No. 6 Airport City, Accra
Tel: (0)30 – 2776621/2771701 or 050-145-1522/3.
E-mail: [email protected]
Date –14th October, 2019