Digicel Looks Likely To Get Its BVI Mobile License

by Leroy Baker, LawAndTax-News.com, New York

12 June 2007

After BVI High Court Justice Rita Joseph-Olivetti ruled that telecommunications operator Digicel can apply for a license to operate in the British Virgin Islands, the territory's Telecommunication Regulatory Commission is now considering the company's application for a mobile telecommunications license.

Digicel obtained leave from BVI Court 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 Telecommunications Act, which stipulates that each application must be considered on an objective, transparent and non-discriminatory basis.

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 TRC 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 was 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.

"In these modern times, telecommunication services can be likened to the blood vessels through which course the economic lifeblood of nations and the industry itself is generally lucrative, I understand," said Justice Olivette in her judgement. "Accordingly, when a country liberalizes its telecommunications services industry, prospective suppliers are attracted to it like magnets to metal." Olivetti concluded that Digicel's application for a judicial review succeeded on the basis that:

• There can be no doubt that the commission has authority to issue a Telecommunications Code and to make provisions for applying for a license in the Code;
• Section 15 (1) gives the right to anyone desirous of providing a service to apply once they meet the criteria laid down in the Code;
• The commission alone is vested with the authority to issue licenses, not the minister;
• The minister can only make policies consistent with the Act and is obliged to consult with the commission;
• The policy document is not telecommunications policy, which was made in accordance with the Act and cannot bind the commission;
• The minister cannot limit the people who can apply or decide on the manner or form of such application, as to do so would be to usurp the functions of the commission and defeat the purpose of the Act; and
• The policy that only existing providers should be licensed within the first 36 months is repugnant to the Act, since it makes provisions to ensure little or no disruption in services by giving the commission power to extend the existing licenses, and provides a machinery for compensation for existing companies that lose the right to provide a public telecommunications service.

The TRC has granted unitary licences to Cable & Wireless and existing mobile operator CCT Global Communications. Cable and Wireless subsidiary bMobile plans to launch its service on 15th June.

The BVI government has come in for plenty of tongue-lashing after the court case went against it. On a TV panel discussion last week, Jerry Sardine, Managing Director of Anguilla-based Caribbean Management Services said that the TRC, supposedly an independent regulatory body, was being led by the Minister. Said Sardine: 'So, therefore, there is not a level playing field being provided under the constant changing BVI Telecommunications Act and supposed policies being executed by a quasi-independent regulatory body, the TRC. There is a prejudicial, predatory, antiquated and dinosauric approach toward the liberalisation of the Telecommunications Sector within the British Virgin Islands.”

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