Digicel Challenges Constitutionality of Antigua & Barbuda Legislation

On Saturday, the Antigua Observer reported that Digicel has initiated legal proceedings in the Eastern Caribbean Supreme Court to challenge the constitutionality of the monopoly held by LIME on international calls coming in and out of Antigua & Barbuda.

According to article, Digicel is arguing that the Antigua & Barbuda Telecommunications Act (and by extension the monopoly granted to LIME) amounts to an unconstitutional hindrance to free speech and the freedom to receive and communicate ideas, which is protected by section 12 of the Antigua & Barbuda Constitution. This challenge appears to have been initiated in response to an earlier action brought by LIME in July 2010, in which LIME is claiming that Digicel is routing international calls in violation of LIME's exclusive international gateway licence.  This case is scheduled to be heard by the Court on Thursday this week.

Digicel's constitutional argument is not new - it has been tested before the Eastern Caribbean and UK courts, specifically in Cable and Wireless (Dominica) Limited v. Marpin Telecoms and Broadcasting Company Ltd.  In this case, Marpin Communications, a cable television provider in Dominica, expanded into Internet service provision through an agreement with Cable & Wireless. In 1998, its 1-800 connection through C&W was disconnected. Marpin took C&W to court, arguing that the legislation and licence conferring monopoly powers on C&W amounted to a breach of its freedom of expression.

Judge Cenac of Dominica agreed with Marpin, and so did the Eastern Caribbean Appeals Court and, ultimately, the Judicial Committee of the Privy Council.  The presiding judge felt that there was no question that Marpin’s freedom to communicate ideas and information was significantly hindered by the monopoly. They also cited the case of Retrofit Zimbabwe, a company that wanted to set up a mobile cellular system to compete with the state monopoly. In this case, unanimous rulings by Zimbabwe’s Supreme Court declared that the monopoly infringed freedom of speech and that this infringement went further than could be reasonably justified in a democratic society.

However, regardless of the merits of Digicel's position (or lack thereof), there is a more fundamental issue at play here...In this day and age, is there any public policy rationale for maintaining a monopoly on international calls?  Comments are welcome...