2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by Justice Richard Adjei‑Frimpong, addresses whether Ghana’s National Communications Authority (NCA) lawfully reclassified FM broadcasting coverage and could require operators to operate within a 45 km radius. The appellants, JOY 99.7 MHz and ASEMPA 94.7 MHz (Bell Communications Limited), previously held 100 km coverage authorizations but allowed them to expire, then sought renewal using new application forms reflecting the reclassification policy. The NCA’s Exhibits B and C granted provisional renewal for a 45 km radius subject to fee payment; Exhibit A directed Asempa FM to adjust technical parameters and warned of non‑processing if non‑compliant. Following stakeholder consultations across regions and Board approval in 2013, the policy was adopted and published. The High Court refused judicial review, finding the NCA acted within mandate; on appeal, the Court affirmed, holding the NCA’s actions were lawful, procedurally proper, and constitutionally permissible under Article 164, and dismissing the appeal.
RICHARD ADJEI-FRIMPONG (JA):
The instant suit turns on the exercise of the powers of the National Communications Authority (NCA) to regulate radio frequency spectrum in our country’s telecommunications space. It must be stated at the very outset that, the need to regulate radio frequency spectrum within our constitutional and statutory framework is a settled subject.
The Supreme court, by a 4-1 majority decision in the case of REPUBLIC VRS INDEPENDENT MEDIA COPRPORATION OF GHANA & ORS (1996/97) SCGLR 258 made the determination when it considered the constitutionality of the provision in Section 15(b) of the erstwhile Telecommunication (Frequency Registration and Control) Decree, 1977 (SMCD 71) which required the written consent of the then Frequency Registration Board for the use of a radio frequency within the context of Article 162(3) of the 1992 constitution.
It is useful recalling a portion of the speech of KPEGAH JSC, a key member of the majority appearing at pages 280 to 281 of the report thus:
“There is no need reminding ourselves that radio signals, like viruses, do not respect national frontiers. This is why all over the world, the use of radio frequency is regulated by both domestic and international regulations. The government Ghana is obligated to comply with the International Telecommunications Union Conventions which regulate the coordination, notification and registration of frequencies…I do not think our government can realistically and meaningfully discharge its obligations under ITU Regulations without having the power to license the use of frequencies allocated to it by ITU considering limitations inherent in the nature of radio.”
Whilst from the above, there cannot be any question in this case, that by law, the NCA is the statutory body mandated to licence and regulate electronic communication activities and services in the country, the appellants before us question the mandate of the NCA to reduce frequency radius already allocated them. As they also claim, the NCA has conditioned the renewal of their licence on the reduction of the frequency radius, a position they challenge. This has been the conundrum of this dispute.
The antecedent events of the suit unfolded this way.
The appellants, operating commercial broadcasting services as JOY 99.7 MHz and ASEMPA 94.7 MHz had been allocated those frequencies in 1995 and 2007 respectively with a coverage radius of 100km for a duration of five years each.
Some time around 2012, the NCA