Caribbean Cellular Telephone Ltd Claimant v The Telecommunications Regulatory Commission ("TRC") Respondent
| Jurisdiction | British Virgin Islands |
| Judge | Byer J. |
| Judgment Date | 11 April 2016 |
| Judgment citation (vLex) | [2016] ECSC J0411-2 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO BVIHCV2015/237 |
| Date | 11 April 2016 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
CLAIM NO BVIHCV2015/237
In the Matter of the Telecommunications Act 2006
Mrs. Tana'ania Small Davis and with her Ms. Monique Peters for the Claimant
Mr. Brian Kennelly and with him Ms. Sinead Harris for the Respondent
—This claim was commenced by way of Fixed Date Claim Form filed the 22 nd October 2015 for Judicial Review against several decisions and actions of the Respondent namely with regard to the conduct of the Spectrum Award 2015.
The Fixed Date Claim form sought the following relief:
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(i) A declaration that the Special Directive ('The Directive") dated 5 May 2014 requiring the Claimant to take such action as is necessary to vacate the 2x4 MHz band (834–838 MHz Uplink, 879–663 MHz Downlink) and ensure that this frequency range is not being used by its network and is vacant and free from any unwanted emissions that may occur as a result of its activity in other parts of the 850 MHz band is null, void and of no legal effect.
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(ii) An order of certiorari quashing the decision of the Telecommunications Regulatory Commission ("the Respondent") whereby it has deemed the Claimant to be materially non-compliant with its instruction by way of the Directive requiring the Claimant to take such action as is necessary to vacate the 2x4 MHz band (834–838 MHz Uplink, 879–883 MHz Downlink) and ensure that this frequency range is not being used by its network and is vacant and free from any unwanted emissions that may occur as a result of its activity in other parts of the 850 MHz band.
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(iii) An order of certiorari quashing the decision of the Respondent restricting the Claimant from qualifying for registration and participation in the Spectrum Award 2015 unless it shall vacate the spectrum described above by 14 September 2015.
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(iv) An order of certiorari quashing the decision of the Respondent that it shall not grant a Frequency Authorisation for spectrum in the 850 MHz band or in the Spectrum Award 2015 to the Claimant until such time as the Claimant shall comply with the instruction to vacate the spectrum described in (1) above.
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(v) An order of certiorari quashing the decision of the Respondent to reject the Claimant's application to register for the Spectrum Award 2015.
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(vi) An order of certiorari quashing the decision of the Respondent stipulating the frequency for which the Claimant must apply for frequency authorisation, which amounts to less spectrum than it has been assigned and has used with the authority of the Respondent in operation of its telecommunications network since 2003 and continuing.
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(vii) A declaration that for the purposes of calculating annual royalty fees paid by the Claimant to the Respondent pursuant to Article 5.1 of the Telecommunications Licence dated 25 May 2007 issued to the Claimant, the revenue derived from sales of non-telecommunications services such as sale of telephone handsets and accessories, rental income and interest do not fall within "services provided under the Licence".
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(viii) Further or other relief as the Court deems just.
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(ix) Costs
The trial of this matter was held on 16 th and 17 th December 2015. An oral decision was handed down on 13 th January 2016. This judgment therefore serves only as a fuller development of the oral decision previously given.
Caribbean Cellular Telephone Ltd ("CCT") is the Claimant herein and is a limited company incorporated under the laws of the Virgin Islands. It holds a License issued on 25 May 2007 under the Telecommunications Act, 2006 ("the Act") for the operation of a telecommunications network providing telecommunications services in the Virgin Islands.
The Respondent is a body corporate established under section 5 of the Act. The Respondent is mandated to regulate the telecommunications sector and its functions are set out in section 6 of the said Act. In this judgment the Respondent may also be referred to as the TRC and will therefore be the same entity as identified as the Respondent.
The Claimant and parties who are considered licensees are governed by the Act, the Telecommunications Code, the Regulations, the terms of their Licenses and any instructions issued by the Respondent.
By letter dated 4 March 2004 (prior to the commencement of the Act) the Minister of Communications and Works (the "Minister"), who was then responsible for overseeing the telecommunications industry, gave the Claimant permission to operate within certain blocks of spectrum. This allocation included the 2x25 MHz in the 850 MHz range—i.e. 824–849 MHz Uplink paired with 869–894 Downlink. The reallocation of this specific spectrum range is at the heart of these proceedings.
A summary of the pertinent events leading up to the Claimant's application for judicial review is outlined below.
On the 14 th January 2013, the Respondent first wrote to the Claimant requiring it to, inter alia, relocate its usage of spectrum in the 850 MHz band, which letter was copied to General Manager of LIME (BVI) Limited. In this correspondence the Respondent notedthelack of frequency authorisation under section 19 of the Claimant and stated that section 23 of the Act did not apply and further proposed to make a directive under section 77(2) of the Act.
A series of written communications between the Claimant and the Respondent with regard to the spectrum re-allocation followed the January 2013 letter. In these correspondences the Claimant purported to raise several objections/protests in respect to giving up their assigned spectrum while the Respondent remainedadamant and reiterated its request for the Claimant to take the necessary steps to vacate the spectrum.
The Respondent reiterated its position throughout 2013 to no avail on the part of the Claimant.
By mid-June of 2013, the Claimant had made it clear that it was not in agreement with the proposed re-farming initiative and set before the Respondent its development plans including a 4G LTE network for the use of the specified spectrum.
The entire year of 2013 passed and the Respondent made no response to the Claimant. However by letter of 26 March 2014they sought the Claimant's consent to the re-farming of the 850 MHz spectrum. The Respondent in that correspondence sought to remind the Claimant of its lack of frequency authorisation under section 19 of the Act, and informed the Claimant that their use of the spectrum had in fact only been on an "ad hoc" basis.
The Claimant rejected this approach and thus on the 5 th May 2014 the Respondent issued its controversial "Special Directive" ("the Directive"). Pursuant to the terms of the Directive, the Claimant was expected and directed to vacate 2x4 MHz of 850 Spectrum (834 to 838 MHz paired with 879 to 883 MHz). The Claimant was invited to submit a written statement of objections to the amendment of the frequency within 60 days of the date of the Directive. At this juncture, the rationale relied on by the Respondent was that it was in the public interest to undertake this re assignment. The Claimant responded to the Directive in August 2014 and then never heard about the Directive again.
In May 2015, the Respondent announced its intention to engage external consultants to prepare the best way forward for the offering of spectrum to all the licensees.
During the first half of 2015 the Respondent therefore met with, held discussions with and finalised the procedures for the proposed procedures for the Spectrum award. As a result, a Notice of Consultation dated 11 June 2015, Consultation Document and Draft Invitation to Apply for spectrum ITA") were issued.
After some further feedback these documents were finalised by August 2015 and individual meetings were held between the stakeholders to establish the parameters for the participation of the licensees in the proposed Spectrum Award.
These stakeholders by necessity included the Claimant who was told in no uncertain terms that there were several areas of noncompliance including the non-compliance with the Directive and the failure to pay the requisite license fees. The Respondent in fact by correspondence on the 9 th September 2015, informed the Claimant that these were areas that needed immediate address and that the Claimant was able to deal with these matters in the undertakings being sought to be completed, despite the Claimant's clear indication that they were not prepared to do so.
Within two days of the Claimant being informed of the Respondent's position, this application for judicial review was filed. Subsequent to such filing the dead line for the submission of applications to register for the Spectrum was extended. Upon the Claimants purporting to submit the application to the Respondent, to the person of Mr. Guy Malone the Chief Executive Officer, the application was rejected ousting the Claimants from participation in the Spectrum Award process.
The Claimant's main submission was that the Directive dated 5 th May 2014 in and of itself was null, void and of no legal effect. The Claimant therefore challenged the Respondent's purported reliance on the failure of the Claimant to comply with this Directive upon which they based their determination that the Claimant was materially non-compliant sufficientto disqualify them from registering in the Spectrum Award 2015.
The Claimant's submissions on this issue, both written and orally, challenged the validity of the Directive on several bases:
- Failure to follow proper procedures [2] Legitimate Expectation [3] Irrationality [4] Inconsistency...
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