Digicel Gets Legal Boost In Fight With BVI Government

by Amanda Banks, Tax-News.com, London

29 May 2007

Digicel has won an important legal victory against the government of the British Virgin Islands in its bid to be considered for a licence to operate telecommunications services in the jurisdiction.

Justice Rita Olivette ruled that Digicel's application for a judicial review into the issuing of licences by the BVI Telecommunications Regulatory Commission succeeds because the TRC had acted unreasonably and denied the company's right to apply for a licence under the Telecommunications Act.

Digicel obtained leave from the Courts of the British Virgin Islands to file an application for Judicial Review after arguing that its application to operate a GSM license in the BVI had not been addressed in accordance with the Act, which stipulates that each application must be considered on an objective, transparent and non-discriminatory basis. The company also obtained an Interim Injunction relating to the TRC's failure to deal with Digicel’s application for a mobile license.

The BVI government's decision to liberalize the territory's telecoms market effectively ended the 40-year monopoly enjoyed by Cable & Wireless. However, the government invited only the three current licensed public suppliers to apply through the Telecommunications Regulatory Commission for licences to operate across all three sectors: fixed line, mobile and cable.This meant that other applicants, including Digicel and Virgin Live Media, were excluded from the process.

For its part, the BVI government argued that that there is no constitutional or legal obligation on the government to open the market immediately to applicants, entrants or full competition. It also said that Digicel has no unfettered right to apply for a license. However, Justice Olivette said that the Act provides no barriers to applicants desirous of a licence other than that they meet the criteria laid down by the legislation.

Justice Olivette also issued an order of mandamus requiring the TRC to consider and determine Digicel’s application of February 16th, 2007 as may be amended for a mobile telecommunications license in accordance with the provisions of the Act, and ruled that the TRC must pick up Digicel's costs.

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