THE Court of Appeal has ruled that the merger of telecoms providers Digicel and Claro was in keeping with provisions of the Telecommunications Act and does not fall within the Fair Competition Act (FCA).

The Fair Trading Commission (FTC) had, in December 2011, challenged the merger, contending that it would result in a lessening of competition in the telecoms market and adversely affect customers.

Telecoms company LIME also joined in the matter on the side of the FTC.

But before the Supreme Court could hear the suit scheduled for January 2012, Digicel, through the law firm Henlin Gibson Henlin, filed a counter action challenging the FTC’s jurisdiction to bring the claim.

The matter was taken to Court of Appeal after the Supreme Court ruled that the FTC in fact had the legal standing to challenge the merger, which was first approved by then Prime Minister Bruce Golding in August 2011 and took effect on March 1, 2012 when Claro ceased operating in Jamaica.

The appellate court reserved judgement in May 2013 after hearing arguments from attorneys in the matter.

The court, which delivered its ruling on Friday, said the FCA does not apply to the agreement entered into by Digicel and Claro. Section 17 of the Act, the court ruled, is aimed at agreements involving collusive conduct and that there was no collusion between the parties.

The court also ruled that agreements that comply with Section 17 of the Telecommunications Act and approved by the minister upon compliance with section 11 of the Telecommunications Act do not fall within the purview of section 17(3) of the FCA.

— Paul Henry