Did Digicel want too big a bite?


Thursday, July 19, 2012    

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In reading through the finely detailed, at times complex but highly impressive judgement handed down in the Supreme Court of Jamaica in the Digicel vs OUR matter, it is uncanny how some at street level captured much of the essence of what the court ruled on.

On Tuesday a man said, "Yow, since dem deh a Jamaica, don't dem eat nuff food? A weh more dem a look?"

In poring through the final judgement, I felt that Justice Mangatal could stand in any jurisdiction in the Commonwealth and more than hold her own.

In the particular matter Digicel was mainly applying for:

" That leave be granted to apply for judicial review of the decision of the OUR ...for an interim mobile termination rate dated June 4, 2012, setting an interim mobile termination rate of $5.00 per minute..."

The language of the law, especially that found in legal judgements, can at times be complex even though such judgements are basically trying to bring simple logic to what can be, to us mere mortals, a maze of legalese.

For this reason I will cherry-pick from the judgement the points I believe readers will be able to fathom without the need of rushing off to law school to complete a law degree.

Basically, what was being sought was: "Among other things Digicel had argued that on June 4, 2012 the OUR issued the Determination without following the standards of procedural fairness or observing the rules of natural justice.

"The OUR has opposed both Digicel's application for leave and its application for leave to operate as a stay of the proceedings.

"Lime has also opposed both the grant of leave and Digicel's application for the grant of leave to operate as a stay of the Determination."

To the man and woman at street level, it appeared that Digicel was "vexed" that LIME had gone ahead, consequent on the new changes to the Telecoms Act, to drastically reduce LIME on network charges to $2.99 per minute. To the public there was a perception that Digicel was questioning and fighting against such a reduction without the public knowing exactly what the Irish-based company wanted to seek in redress through the courts.

The judgement is fairly lengthy, close to 60 pages, and it makes reference to numerous cases and the logic which emanated from them in arriving at the final judgement. For this reason, as I previously stated, I will quote only those parts that I believe will assist the reader in arriving at his own understanding of the complexities involved.

In paragraph 49, the following gives a brief breakdown of how the court began to develop Digicel's claim versus the court's own findings.

"In this case, Digicel complains, despite the express provisions of the Act, that in fixing the interim rates the OUR ought to have had further consultation. However, it is clear on the evidence that from as far back as 2010, considerable opportunity has been provided by the OUR for consultation, and that Digicel has been consulted."

As much as reading through court judgements are usually boring to the layperson untrained in matters of the law, I found myself fascinated by the "workings" of the mind of Justice Mangatal. In paragraph 57 of the 115 that constitutes the judgement, the position of the OUR is brought more into focus.

"In the course of making submissions, the OUR have submitted that Digicel have suppressed information and have failed to comply with their statutory duty to provide the information that would be the basis for consultation. They have referred to these alleged breaches as a basis for finding that Digicel has not come with clean hands, and that in so far as judicial review is a discretionary remedy, the improper conduct of Digicel is a proper basis upon which to refuse leave."

Within a few more paragraphs the court records findings which indicate that the OUR is on sound grounds in its assessments of the behaviour of Digicel.

Paragraph 61 captures it.

"Be that as it may, it is quite plain that Digicel did not for an extended period of time, produce the information and data requested by the OUR. First Digicel queried the necessity for what the regulator the OUR was asking for, then there was unarguably delay in providing the information, assuming Digicel have even now provided the requested information, which the OUR say they have not."

In other words, at the time of arguing the matter before the Supreme Court, it was the view of the court that Digicel, the main player in the mobile phone market, had not yet provided the OUR with certain requested and required/pertinent information.

The court punches holes in Digicel's arguments in relation to the specific power of the OUR. Paragraph 69 captures this.

"One of the complaints made is that there is no rational basis upon which the OUR decided to issue the Determination Notice. However, the OUR have been given the power by Parliament. They have been given that discretion by Parliament and they must be given reasonable latitude within which to exercise that discretion. The complaint here is that the OUR did not have to, or there was no necessity for them to have set Interim Rates. Let us assume that it is so. In what way has Digicel shown by the evidence or argument that there is a realistic arguable ground that this was manifestly wrong, perverse or unfair? In my judgement, what has been put forward by Digicel falls woefully short of this."

As much as Digicel has been for long the darling among Jamaicans, there has always been the perception that the Office of Utilities Regulation (OUR) is an entity without backbone and willing to bow to the dictates of the big players among the utilities. The finding above is indicative of the OUR regaining more than the required testosterone.

A part of paragraph 74 reads like a lament, but it is worth quoting. "I agree with the OUR that an alternative remedy does not have to be an appeal to the court."

In other words, to take the matter even further would be a grand waste of time.

The weakness of Digicel's case is developed and noted in a part of paragraph 101: "I am of the view that there are no serious issues to be tried and therefore a claim for a stay having the effect of an injunction should be refused. However, in the event that I am wrong and there are in fact serious issues to be tried, or arguable grounds with a realistic prospect of success, the applicant Digicel's case is clearly, at best, a weak case."

Where Digicel tries to make the case that it would suffer reputational damages should the OUR have its way, the court pours cold water on that in a part of paragraph 104.

"At paragraphs 67 and 68 Digicel claim that they may suffer reputational damage and further reputational damage in relation to prospective adjustments to its rates. The evidence falls far short of demonstrating a real risk of this occurring. As pointed out above, there is no solid evidence upon which such revenue loss or potential loss as alleged in paragraph 64 could be seen."

Just before the court lays down the law, it strikes a positive on behalf of those who really matter; something I, a layman, have been arguing for in these columns for about a year. It is to the benefit of the public that a "level playing field" be rolled out. Parts of paragraphs 110 and 111 encapsulate the finding.

" However, more important, it is the public who stand to lose the most, if a stay is granted. According to the OUR, the Jamaican public is bearing the burden of transferring unwarranted revenues to Digicel in excess of the true cost of termination services as required by the Telecoms Act which the public will not be able to recover if the final rates are ultimately less."

When the court ruled that "...the Jamaican public is bearing the burden of transferring unwarranted revenues to Digicel in excess of the true cost of termination services...", it mirrored the views of the man and woman at street level who were saying that Digicel "eat nuff food already".

When the court issued the final word in paragraph 115, the public was the big winner.

"The application for Leave to Apply For Judicial Review filed June 13, 2012 is refused."





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