NDC lawyer sues NCA over FM sanctions

Mr Chris Ackumey of the main opposition National Democratic Congress (NDC) has sued the National Communication Authority (NCA) seeking to have the court declare its sanctions against some 131 FM stations as null and void.

The legal practitioner argues that “the penalties or fines imposed by the NCA on FM stations had not been approved by the Parliament of Ghana pursuant to the Electronic Communications Act 2006 as amended and/or the National Communications Authority Act 2008, the imposition of the fines is unlawful, null, void and of no effect.”

The NCA said it found the 131 FM Authorisation Holders to have committed various infractions pertaining to their authorisations to operate as contained in Section 13 of the Electronics Communications Act (2009), Act 775. A further 13 FM Authorisation Holders have been issued with reprieves as pertains to their authorisations.

This followed the completion of a nationwide FM Spectrum Audit conducted this year to determine compliance of Authorisation Holders with their Authorisation conditions and to determine which FM stations were in operations or otherwise. The FM Spectrum Audit also formed part of a wider and ongoing audit of all services regulated by the NCA, including TV and ISP services.

Section 13 of the Electronics Communications Act (2009), Act 775 states among others that “the Authority may suspend or revoke a licence or a frequency authorisation where:

(a) the licence or the authorisation holder has failed to comply materially with any of the provisions of this Act, Regulations or the terms and conditions of its licence or frequency authorisation

(b) the licensee or the authorisation holder has failed to comply materially with a lawful direction of the Authority,

(c) the licensee or the authorisation holder is in default of payment of a fee or other money, charged or imposed in furtherance of this Act, the National Communications Authority Act, 2008 (Act 769) or Regulations

(d) the licensee ceases to (i) operate the public communications network, (ii) provide the public electronic communications service, or (iii) use the frequency band.”

The breakdown of the number of stations and the sanctions being applied to them are as follows:

Revocations

Twenty-one (21) FM broadcasting stations have had their authorisations revoked completely since their authorisations had expired over several years and were operating illegally. They had also failed to apply for renewal 3 months before expiry of existing Authorisation and as stipulated in their Authorisation. The FM broadcasting stations in question also did not respond to a notice the NCA sent to them to regularise their operations earlier this year.

? Thirteen (13) FM broadcasting stations will also have their authorisations revoked completely since their authorisations had expired and were operating illegally. They had also failed to apply for renewal 3 months before expiry of existing Authorisation and as stipulated in their Authorisation. This section of FM broadcasting stations responded to the notice but had requested for extension of time to regularise their operations, which the NCA found unacceptable and declined.

Penalties

The stations below responded to an earlier notice requesting them to regularise their operations. However, they have been fined as per the category of infractions and pursuant to the NCA’s gazetted Schedule of Penalties. The fines range from GHC50,000.00 to GHC61,000,000.00 depending on the infraction and the duration the infraction persisted.

- Eleven (11) radio stations have been requested to pay application fees for renewal of Authorisation and to pay a fine in accordance with the NCA’s gazetted Schedule of Penalties for failure to apply 3 months before expiry of Authorisation within 30 days.

- Two (2) radio stations have been asked to submit renewal application within 30 days.

- Sixteen (16) radio stations have been asked to submit renewal application, pay application fees, and pay a fine in accordance with the Authority’s gazetted Schedule of Penalties within 30 days.

- Twenty-four (24) radio stations have been asked to submit omitted documents and pay a fine in accordance with the Authority’s gazetted Schedule of Penalties within 30 days.

- Fifteen (15) radio stations will have their Authorisation processed after payment of fines in accordance with the Authority’s gazetted Schedule of Penalties.

- One (1) radio station has been asked to settle its outstanding indebtedness before renewal of Authorisation is considered.

- Twenty (20) radio stations have been asked to settle their Provisional Authorisation (renewal) fees which have been invalidated due to non-payment within sixty days – to pay interest on due amount.

- Eight (8) radio stations have been asked to pay a fine in accordance with the NCA’s gazette Schedule of Penalties before the authority conducts inspection as requested by the stations.

Aside the above, the NCA has also granted one radio station an extension to set up, two radio stations have been authorised to commence test transmission. A further three have been asked to submit renewal applications within 90 days with 7 radio stations having their provisional Authorisation and final Authorisation issued.

Affected stations have also been given 30 days to settle their indebtedness or submit the relevant documentations as indicated in the letters sent them by the NCA.

The actions of the affected radio stations go against the Authorisations issued them before commencement of work. The validity period of the Authorisations are for a 5-year period, effective from the date of the Authorisation, and renewable 3 months prior to its expiration through any of the eight offices of the NCA nationwide. It is important to note, however, that some of the FM broadcasting stations have never attempted to renew their authorisation; some for as long as 17 years. This has resulted in the stations depriving the state of statutory revenue.

This is a situation which the Public Accounts Committee of the Parliament of Ghana found unacceptable and for which the NCA was invited to explain its actions before the committee earlier on this year.

Much as the NCA recognises the key role the radio stations play in the socio-economic life of the country, dissemination of information, employment and investment opportunities it creates, it is important that players within that space adhere to the regulatory requirements and conditions of their Authorisations. Ghana’s spectrum, just like any other country’s, is finite and it is important that the country maximises the benefits of the spectrum and to also ensure that those who are given a piece of the spectrum use it judiciously for the benefit of society and the state.

The Authority wishes to assure the public that it will play its regulatory role as contained in the NCA Act and the Electronics Communication Act among others to sanitise the industry and ensure that players adhere to the rules pertaining to their various licences and authorisations.

Mr Ackumey, however, says the NCA’s actions are wrong.