When the High Court granted leave two weeks ago for CCT Global Communications to challenge the Telecommunications Regulatory Commission in civil court, few details of the case were known, as company executives were tight-lipped and regulatory officials didn’t return calls seeking comment.

CCT released a short statement on Oct. 5 claiming that the TRC is being unfair in its process of allocating a portion of the airwaves necessary for wireless providers to upgrade their networks, but company officials declined to elaborate further as long as the case is in litigation.

Machine snafus block access to public documents By KEN SILVA According to the Eastern Caribbean Supreme Court Civil Procedure Rules, the public has the right to go to the High Court Registry and inspect and take copies of all claim forms, judgments, orders and notices of appeal. However, multiple attempts by the Beacon to exercise this legal right over the last two months have been unsuccessful because the documents being requested weren’t at the Registry. When this reporter requested CCT Global Communications’ claim form requesting a judicial review against the Telecommunications Regulatory Commission, for example, staff at the Registry’s case management department told him that the form was unavailable because it was with the High Court trial judge. The initial request for the CCT claim form was made on Sept. 25, but the document was not received until Oct. 14 despite multiple requests during that timeframe. Case management staff provided the same explanation for the documents in other cases, too: If the case in question was scheduled to be in court that week, the documents would not be available, this reporter was told. But this explanation does not fall in line with the ECSC’s Civil Procedure Rules, which state that documents should be available during office hours. High Court Deputy Registrar Sarah Benjamin explained that the copy machines in the case management department were broken earlier this year, and thus copies for several cases were not made. She added that the issues with the machines have been fixed since then, and that she has instructed the case management staff to resume making copies of all documents that are public.

However, court documents obtained by the Beacon last week show that CCT is accusing the TRC of abusing its power and acting irrationally as the regulator works to decide which companies will get a piece of the 700-megahertz spectrum – a portion of the airwaves that enables telecommunications companies to update from 4G technology to the faster 4G LTE.

Meanwhile, the litigation between CCT and the TRC has halted the spectrum allocation process, stalling Digicel’s and LIME’s efforts to upgrade their own networks, and thus potentially delaying faster mobile wireless speeds for customers.

Grievances

Among CCT’s grievances in the documents – a nine-page application for judicial review – are that the TRC required the company to vacate some of the airwaves it’s currently using (a portion of the 850MHz spectrum) in order to apply for a piece of the 700MHz spectrum.

In 2003, the Ministry of Communications and Works assigned CCT a portion of the 850MHz airwaves, but less than four years later government enacted the Telecommunications Act 2006, requiring all network providers to obtain authorisation to use any frequency within three months of the law going into effect.

CCT never did so, according to the court documents, leading the TRC to write the company in January 2013 to state that it intended to formalise the authorisation for all operators using the frequency.

In that correspondence was a request for CCT to voluntarily give up some of the spectrum to which it had been assigned – a portion that comprises more than 25 percent of the spectrum CCT currently uses, according to the company’s Oct. 5 press release.

CCT did not consent to vacate any of its assigned spectrum, so the TRC made a similar request in March 2014.

When CCT did not fulfil that request either, the TRC changed its request to an order two months later, according to the documents.

Still, CCT did not vacate any of its assigned spectrum or obtain formal authorisation.

CCT attorney Monique Peters explained in the application that if her client underwent the formal authorisation process, it would have been required to comply with the TRC’s order to vacate a portion of its 850MHz spectrum – leaving it with less than it was originally assigned in 2003.

But because CCT never vacated the portion of its spectrum nor obtained formal authorisation to use any of it, the TRC rejected its application for a portion of the 700MHz spectrum.

Authorisation

However, Ms. Peter argued that the company has the right to keep operating on its current 850MHz spectrum because – despite the lack of formal authorisation – the TRC has acknowledged as much in multiple correspondences over recent years.

Moreover, because the company has the right to continue operating on its current spectrum, the entire basis on which the TRC denied its application for the new spectrum is null and void, she stated.

To support CCT’s contentions, Ms. Peters pointed out in the claim form that in the TRC’s March 2014 request for the company to vacate some of its airwaves, the regulatory body acknowledged that CCT had been “at liberty to use the … spectrum without a fee and without official authorisation from the TRC.”

That correspondence and others between CCT and TRC have “ratified, approved and authorised the continued use of the spectrum to which the applicant was assigned, even though not set out in a formal frequency authorisation,” she stated.

And because those correspondences confirmed CCT’s right to use the entire portion of airwaves it was allocated in 2003, the attorney added, the TRC had no grounds on which to deny its 2015 application for the new spectrum.

Ms. Peters further argued that the TRC did not issue the order in a proper fashion because when CCT received its order to vacate the portion of the spectrum in May 2014, it wrote an objection letter to the TRC but never received a response.

Because of the regulator’s silence, she wrote, CCT was led to believe that the TRC wasn’t holding to its order to vacate the spectrum.

Royalties

The other grievance put forth in the form has to do with royalty fees that CCT claims exceed what the company owes the TRC.

CCT’s telecommunications licence requires it to pay a three percent fee on its gross revenues from services rendered under its licence.

According to the claim form, the TRC has been demanding that those royalties include sales from telephone handsets, accessories, and rental income.

“The revenue derived from sales of non-telecommunications services, such as sales of telephone handsets and accessories and rental income, do not fall within ‘services provided under the licence,’” CCT argues in the claim form, asking the High Court to overturn the requirement to pay royalties on those sales.

A trial date for the case has yet to be set.

Officials at LIME declined to comment on the matter, and Digicel did not respond to a request before this issue’s press deadline.

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