GOVERNMENT lawyers said the full court erred in its finding that the Voice Over Internet Protocol is a data service, not a voice service.

The lawyers filed a document this week, notifying the local appellate court of their intention to challenge the decision of the court that sections of the Telecommunications Act were unconstitutional.

Supreme Court judges Basil 'Jack' Reid, Karl Harrison and Norma McIntosh on December 20 ruled that the constitutional rights of Infochannel, the Internet Services provider, had been breached by virtue of the Telecommunications Act.

Consequentially, the court also ruled that the company was entitled to monetary compensation in damages for the breach.

Infochannel's legal wranglings date back to the late 1990s when it decided to sell Voice Over Internet protocol (VOIP), a technology that allowed its users to call overseas at less than half the price charged by local telecommunications giant, Cable and Wireless.

Cable and Wireless, a company controlled largely by private interests, was incorporated in 1987 after buying out the then government-controlled Jamaica Telephone Company.

In the year following the sale, Cable and Wireless obtained an exclusive licence which gave it sole rights to provide an islandwide wired telephone service. It also obtained four additional licences, none of which were exclusive, to provide a raft of other telecommunications services.

Since then, until the advent of companies like Infochannel in the mid-1990s, Cable and Wireless and its subsidiary, Jamaica Digiport International, controlled the local telecommunications market.

However, it wasn't until 1998 when Infochannel, through a licence granted by the technology ministry, obtained a Very Small Aperture Terminal (VSAT) which enabled it to sell access to the Internet directly via satellite -- in short, talk to people overseas independent of Cable and Wireless international data circuit -- that the competition turned ugly.

On June 16, 1998, shortly after it became an open secret that Infochannel was the gateway to dramatically cheaper overseas calls, the police, accompanied by several of Cable and Wireless' employees went to Infochannel's offices, disconnected a number of its local lines and seized several pieces of equipment which facilitated the VSAT operation.

Simultaneously Infochannel's chairman and chief executive officer, Patrick Terrelonge, was arrested and charged for breaching the Public Utilities Protection Act by trespassing on the works of Cable and Wireless. He was also charged with conspiracy to defraud Cable and Wireless contrary to common law.

The arrest sparked a series of battles in the civil court which saw Infochannel claiming that its services did not constitute telephone services as defined by the Telephone Act under which Cable and Wireless obtained its exclusive licence and that as such it was entitled to offer VOIP.

Cable and Wireless counter-claimed with a suit that accused Infochannel of unjustly enriching itself at its expense. A year later Terrelonge was acquitted of the criminal charges in the Half-Way-Tree Criminal Court, however, the fight between both companies continued in the Supreme Court with Infochannel filing another claim against Cable and Wireless for:

* damages for refusing to supply Infochannel with any further leased data circuits to supply Internet services;

* damages for blocking Infochannel from providing full Internet services, including VOIP, by converting its bi-directional (two-way calling) lines to uni-directional (one-way calling) lines; and

* a mandatory order to force Cable and Wireless to restore the lines and supply the additional leased data circuits.

The claim, which was advanced in a summons for an interlocutory injunction to force Cable and Wireless to comply with Infochannel's wishes, was granted on February 3, 1999 by Supreme Court judge, Marva McIntosh.

Cable and Wireless responded with an application for a judicial review challenging the grant of Government's authority to grant the VSAT licence to Infochannel.

However, the judicial review which began on March 8, 1999, was ever concluded as months later, on October 25, 1999, Cable and Wireless and the minister decided to drop the action in favour of an attempt to resolve the issue out of court.

Their decision to withdraw the application for the judicial review was followed up with an approach to Infochannel which resulted in an agreement on all sides to drop the lawsuits and resolve the issues by arbitration.

Under the agreement, which according to Terrelonge's affidavit account of the story was predated August 19, 1999, Infochannel relinquished the mandatory orders granted by Justice McIntosh and gave an undertaking to provide VOIP solely to its Internet subscribers until September 30, 1999 or whatever date the Government implemented its new legal and regulatory telecommunications framework (The Telecommunications Act of 2000).

However, Infochannel's expectations that the agreement would guarantee its ability to continue to offer VOIP under the new law never materialised as it was unable to get the requisite licence.

In an attempt to get around the problem, the company filed for another injunction to force the company to restore two-way calling to its lines. The injunction was granted by Supreme Court judge Maurice Reckord on April 13, 2000, but discharged by another judge months later, on August 17. Infochannel challenged the discharge in the local appellate court which dismissed the appeal ruling that monetary compensation would be adequate if necessary.

The monetary compensation that Infochannel is anticipating is in the region of US$27,000,000, according to figures outlined in court documents.

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Death to the Mullet!