Haiti Regulator Adopts Interconnection Guidelines

Last week, the Conseil National des Télécommunications (CONATEL), the telecommunications regulator in Haiti, adopted new guidelines for the interconnection of telecommunication networks.  These guidelines provide detailed information on the procedure to be followed by new operators seeking to interconnect with existing operators, the content of interconnection agreements and the role of CONATEL in resolving interconnection disputes.

To my knowledge, these are the first interconnection guidelines issued by CONATEL since the Haitian telecommunications market was opened to competition in 1999.  Under their current licences, the operators are required to negotiate interconnection agreements, but little regulatory guidance is provided for the negotiation of these agreements (see, for example, art. 11 of the Teleco licence).  Whilst the operators have done their best over the past few years to negotiate interconnection agreements, the rights and responsibilities of each party (and of CONATEL) were not clearly specified under Haitian law.

It is not surprising, therefore, that Haiti has faced several interconnection disputes over the past decade.  In the summer of 2006, for example, Le Nouvelliste reported that Digicel was refusing to sign the interconnection agreement previously signed by Comcel et Haitel.  This dispute was eventually resolved, in September 2006, when Digicel, HaiTel and Comcel signed interconnection agreements.  Later, in October 2007, the incumbent fixed-line provider, Teleco (recently purchased by Viettel, the largest Vietnamese telecom operator) ceased all interconnection with Haitel due to non-payment of interconnection fees. This dispute was later resolved, following a ruling of the Haitian courts.

Interconnection disputes will continue to be a fact of life in the Haitian telecommunications market, despite the adoption of these guidelines. However, the adoption of these guidelines will clarify the rights and obligations of the parties.  This, in turn will make Haiti a more attractive and predictable market for investors wishing to enter the telecommunications market.

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...

ECTEL Publishes Draft Electronic Communications Bill

On Thursday, the Eastern Caribbean Telecommunications Authority (ECTEL) published on its website a draft Electronic Communications Bill.  According to the explanatory notes, the purpose of the Bill is to update the telecommunications legislation in the ECTEL Member States – Dominica, Grenada, St. Kitts and Nevis, Saint Lucia, and St. Vincent and the Grenadines -  and to promote "liberalized and non-discriminatory entry into the electronic communications sector" while enabling a "robust competitive environment in which there is fairness, transparency and accountability on the part of the regulators of the sector".

Although I have not yet reviewed the Bill in detail, I noticed that it emphasizes the need to create a converged licensing regime.  This appears to be a reference to clause 39(2) of the Bill, which states that "[a] service provider may provide more than one service under a licence in accordance with the terms of the licence".  Therefore, instead of forcing an operator to manage several licences for the various telecom services it offers (for example, in the case of Digicel, one licence to offer wireless voice service, another to offer Internet service, and perhaps perhaps another one for TV service), the legislation would require the operator to manage only one integrated licence. 

This "converged" approach to licensing is an interesting one.  It is similar to the approach taken in the Cayman Islands since 2002 and, more recently, by URCA in the Bahamas.  In addition to simplifying the licence management process for the operators (e.g. payment of fees, quarterly reports, licence renewals, etc), it enables the regulator to focus on the "big picture", rather than micro-managing specific components of the licensees' business. 

The draft Bill is available for public comments, discussions and recommendations and forms part of a wide range of awareness and consultative activities in all the ECTEL Member States. A discussion Board will soon be established to facilitate comments, ideas and suggestions. 

Interestingly, the ECTEL website does not mention any specific deadline for comments, nor does it provide any timeline for the tabling of the legislation in ECTEL countries.

Jamaica Supreme Court Dismisses LIME Application for Injunctive Relief

Jamaica Supreme Court Justice Ingrid Mangatal

Yesterday, Justice Mangatal of the Jamaica Supreme Court dismissed an application by LIME for injunctive relied against Digicel as part of an ongoing court proceeding over fixed-to-mobile termination rates.  Justice Mangatal's decision provides a good overview of the legal test for injunctive relief in Jamaica (and other common law jurisdictions). She concluded that, while there appears to be serious issues to be tried in this proceeding, LIME did not provide sufficient evidence to demonstrate that the balance of convenience justifies injunctive relief.

In the main proceeding, LIME claims that Digicel's conduct in setting higher rates for the termination of fixed line calls from other networks to call Digicel's mobile network, while setting lower rates for calls from Digicel's fixed network to Digicel's mobile network, is an abuse of dominant position under the Fair Competition Act.  LIME also alleges that, under section 30 of the Telecommunications Act, Digicel did not comply with the obligation to provide interconnection on a non-discriminatory basis.  Accordingly, LIME argues that it has a private cause of action under section 48 of the Fair Competition Act and section 67 of the Telecommunications Act.

Interestingly, as part of its defence in the main proceeding, Digicel denied the existence of  "market to terminate calls on Digicel's mobile network".  This position is consistent with Digicel's arguments before the Telecommunications Appeals Tribunal (as previously discussed on this blog).  It is clearly at odds, however, with the conclusions of the Telecommunications Appeals Tribunal, as well as the position taken by the International Telecommunications Union and telecommunications regulators around the world, most of whom have concluded that mobile termination is a distinct market that requires regulation.  In her decision, Justice Mangatal seemed reluctant to delve into such a detailed and complex economic analysis.  It will be interesting to see if the trial judge will rule on this important issue.

Mobile Phones and Driving Safety

According to the Guardian, the Trinidad and Tobago Cabinet has endorsed amendments to the motor vehicle legislation to ban the use of mobile devices while driving.  These amendments will soon be tabled in the Trinidad and Tobago Parliament.  In a post-Cabinet news conference on July 29, Works and Transport Minister Jack Warner noted that these amendments are intended to increase road safety in  Trinidad and Tobago.  Both Digicel and TSTT expressed their support for these amendments.
 
These amendments should be a no-brainer for all Caribbean nations.  Several studies have demonstrated clearly  that using a mobile device while driving a motor vehicle entails a similar risk as driving while intoxicated.  A significant number of nations have already adopted and implemented legislation to prohibit this practice.  One can only hope, therefore, that the other Caribbean nations will follow Trinidad and Tobago's lead in the near future.

Bahamas Consultation on Content Regulation

Over the past few months, the Bahamas Utilities Regulation and Competition Authority (URCA) has been conducting a consultation on content regulation. Under the newly-promulgated Communications Act, 2009, URCA is mandated to issue new Codes of Practice for audiovisual media services and to develop complaints-handling procedures for dealing with complaints by the public regarding alleged breaches of the Codes. These Codes are intended to cover areas such as the protection of children, harm and offence, taste and decency, accuracy and fairness, political broadcasts, advertising and sponsorship, and guaranteed access to certain kinds of content and services (e.g. relating to national emergencies and disasters).

In the consultation document, published last February, URCA indicated that it was inclined to delegate this task to an industry Working Group, composed of representatives of the broadcasters, cable operator, independent production companies and the public at large. However, if the Statement of Results published last week is any indication, URCA may have some difficulty in generating sufficient interest from these stakeholders to make this process work. This paragraph from the Executive Summary is particularly revealing:

(...) URCA is disappointed with the low number of responses received to an important consultation that will affect all Bahamian radio and TV broadcasters. It is particularly discouraging that none of the broadcasters took the opportunity to formally respond to the consultation. As URCA is proposing a co-regulatory framework to develop the Codes of Practice, it does not auger well for the proposed framework if the industry did not respond to the public consultation, the first phase of the process. For such a model to be effective, it is necessary for regulated companies to participate actively in the regulatory process, for example by responding to consultations that directly affect them. The fact that no broadcasters responded to URCA’s consultation on developing Codes of Practice highlights the fact that Bahamian companies might not yet be accustomed to playing their required role in the development and implementation of public policy.

Unfortunately, this lack of participation in regulatory proceedings is common across the Caribbean. This is particularly true in regulatory proceedings involving broadcasters. Contrary to the Caribbean companies operating in the telecommunications sphere (e.g. Digicel, Cable & Wireless/LIME, etc), the Caribbean broadcasters are generally quite small and localized. As a result, they suffer from a lack of scale and resources, which prevents them from employing dedicated legal or policy experts – either in-house or through industry groups – to manage regulatory affairs. In smaller countries such as The Bahamas, companies have limited resources, making it harder for them to devote time and effort to regulatory affairs. One solution to this conundrum may be for broadcasters to pool their resources on a regional basis. Perhaps this is a gap that could be filled by the Caribbean Broadcasting Union?

New Telecom Legislation in Bermuda

The Bermuda Government has issued a consultation paper on new legislation that seeks to "fundamentally reform the regulatory regime applicable to the electronic communications sector". The consultation paper is available here and the draft legislation is available here. The Bermuda Government is proposing to enact two statutes, one to create an independent telecom regulatory authority and another to create an integrated regulatory framework for all electronic communications.

It is good to see that, after five years of consultation, Bermuda is finally getting close to modernizing its telecom legislation.