Digicel (Barbados) Ltd

• Jurisdiction: Barbados
• Judge: Sir Neville Nicholls,Professor Andrew Downes,Mr. Gregory Hazzard,Mr. Trevor Welch,Ms. Monique Taitt
• Judgment Date: 18 August 2010
• Docket Number: NO. 0003/10
• Court: Fair Trading Commission (Barbados)

In the Matter of the Utilities Regulation Act, CAP. 282 and the Fair Trading Commission Act, CAP. 326B and the Telecommunications Act, CAP. 282B of the Laws of Barbados;

In the Matter of the Utilities Regulation (Procedural) Rules, 2003 and Utilities Regulation (Procedural) (Amendment) Rules, 2009;

And in the Matter of a Decision and Order of the Fair Trading Commission dated the 22 ^nd day of February 2010 on the Consolidated Reference Interconnection Offer;

And in the Matter of Digicel (Barbados) Limited's Application for a Review of the Decision dated the 22 ^nd day of February 2010;

Digicel (Barbados) Limited

Applicant

Before:

Sir Neville Nicholls Chairman

Professor Andrew Downes Deputy Chairman

Mr. Gregory Hazzard Commissioner

Mr. Trevor Welch Commissioner

Ms. Monique Taitt Commissioner

NO. 0003/10

FAIR TRADING COMMISSION

DECISION

PART ONE – BACKGROUND

1 On September 25, 2008 the Fair Trading Commission “Commission” requested that Cable & Wireless (Barbados) Limited “C&W” file a Consolidated Reference Interconnection Offer (RIO).

2 In keeping with the provisions of the Telecommunications Act, CAP. 282B “TA” specifically Section 27 (3), the Commission conducted a public consultation. Section 27 (3) of the TA states, inter alia, that the Commission shall:-

“ (a) consult with the carrier providing the RIO and any other carriers likely to seek interconnection to that carrier's network:”

3 Submissions on the Consolidated RIO were received from TeleBarbados Inc., Blue Communications Inc., Digicel (Barbados) Limited “Digicel” and CARITEL (as an interested party). Subsequently, C&W responded to the parties' submissions. The Commission also invited parties to an oral presentation on June 19, 2009. Presentations on the Consolidated RIO were made by all of the parties named above including C&W.

4 Many of the carriers in the referenced submissions were of the view that the interconnection charges were too high. C&W subsequently proposed that in the absence of a Long Run Incremental Cost (LRIC) study and until this exercise is completed it would reduce domestic interconnection tariffs for PSTN Termination Access Service, PLMN Termination Access Service and PSTN Transit Service by 5% at the time the new Consolidated RIO is adopted and by another 5% on the next two anniversaries of that date.

5 All parties to the consultation were given an opportunity by the Commission to comment on C&W's proposed rates through written submissions. The Commission examined the proposal and considered all of the submissions made by the various parties along with the other factors set out at Section 27 (3) of the TA before deciding whether to approve or refuse the Consolidated RIO.

6 After conclusion of the public consultation the Commission consulted with the carrier that filed the Consolidated RIO in order to resolve any inconsistencies relating to the parts of the Consolidated RIO that had been refused. The Commission concluded that a onetime 15% reduction in interconnection rates for the specified services should be implemented as these rates had not changed since 2003 and there was general information which supported that the costs of telecommunications had decreased. As such, the Commission directed C&W by letter dated November 10, 2009 to make certain amendments to the Consolidated RIO. In addition to the changes to the interconnection charges the Commission directed C&W to amend the Consolidated RIO by removing references to the Access Deficit Charge (ADC) and amending the language for the international call termination, Clause 3.2.2 as well as inclusion of a footnote in Section 2 for alternative technologies.

7 C&W subsequently submitted a revised Tariff Schedule along with a revised Consolidated RIO on December 15, 2009. Between January 14 and February 03, 2010, there was an exchange of correspondence between C&W and the Commission regarding some further inconsistencies in the tariffs. After being directed by the Commission, C&W then submitted a revised tariff schedule on February 15, 2010.

8 The Commission issued its Decision on the C&W Consolidated RIO on February 22, 2010.

Filing of the Motion for Review

9 Following receipt of the Commission's Decision, Digicel filed a Notice of Motion for Review on March 16, 2010.

Duty of the Commission

10 By virtue of Section 36 of the Fair Trading Commission Act, CAP 326B “FTCA”, the Commission has jurisdiction on an application from a party or on its own motion to review, vary or rescind any decision given by it. In instances where the Commission allows a review it is prescribed by the Utilities Regulation (Procedural) Rules, 2003 and the Utilities Regulation (Procedural) (Amendment) Rules, 2009 “the Rules”. The Commission's discretion to review and vary or rescind a decision or order is exercised with a view to ensuring that there is consistency and predictability of the Commission's decision-making process.

Burden of Proof

11 Under Section 14 of the Utilities Regulation Act, CAP 282 “URA” the onus rests on Digicel to prove its case.

Evidence before the Commission

12 Rule 54 (1) of the Rules states that Digicel as the Applicant must comply with Rule 8 of the Rules and file an Affidavit setting out the relevant facts it relies on in support of its Motion. Digicel filed an Affidavit of Ms. Helga McIntyre, Head of Legal and Regulatory, Eastern Caribbean dated March 16, 2010 setting out the facts on which it relies in support of its Motion for Review.

13 Additionally, Digicel filed with the Commission a set of written submissions dated April 23, 2010. Following this, C&W was invited to submit a response to Digicel's written submissions. C&W filed with the Commission its written response on May 14, 2010. C&W in its response addressed the Affidavit of Ms. Helga McIntyre and indicated that C&W is of the view that the process which was followed by the Commission for determining the Consolidated RIO is the same as that set out under the TA and that all parties were given an opportunity to be heard. After receipt of C&W's response Digicel was invited to submit its final set of written submissions and it did so on June 01, 2010. In determining this matter, the Commission took into consideration the written submissions of both Digicel and C&W.

14 A review is not a vehicle for applicants to re-argue their submissions made at an earlier proceeding simply because they do not agree with the decision. Under the FTCA, the authority of the Commission to allow a review is discretionary. An applicant must first demonstrate, on a prima facie basis, the existence of the permissible grounds of review, this is referred to as the threshold question. Rule 54 (1) of the Rules sets out specific grounds on which the Commission can review a decision made in a utility regulation proceeding. Rule 54 (1) of the Rules states that:-

“ (1) Every Notice of Motion made under Rule 53(2), in addition to the requirements of Rule 8 shall

• (a) Set out the grounds upon which the motion is made sufficient to justify a review or raise a question as to the correctness of the order or decision and the grounds may include

  • (i) error of law or jurisdiction;

  • (ii) error of fact;

  • (iii) a change in circumstances;

  • (iv) New facts that have arisen;

  • (v) Facts that were not previously placed in evidence in the proceedings and could not have been discovered by reasonable diligence at the time;

  • (vi) An important matter of principle that has been raised by the order or decision;”

15 Rule 55 (1) of the Rules states that:-

“ (1) The Commission shall determine with a hearing, in respect of a motion brought under Rule 53 the threshold question of whether the matter should be reviewed or whether there is reason to believe the order should be rescinded or varied.”

16 In accordance with Rule 55 (3) the Commission decided that it would combine the consideration of the threshold question and a review on the merits and would hold a consolidated written hearing. Rule 55 (3) of the Rules states that:-

“ (3) the Commission may adopt whatever procedures it deems to be just and expeditious in the individual circumstances of each motion including providing for the combining of consideration of the threshold question and the review on the merits.”

17 To discharge its first task vis-à-vis the threshold question of whether a review should be granted, the Commission considered Digicel's Motion for Review and the Affidavit of Ms. Helga McIntyre dated March 16, 2010.

The Threshold Question

18 Digicel's Motion for Review and accompanying Affidavit contained the reasons why it believed that the Commission's decision should be reviewed.

19 The Commission approached the threshold question by considering whether Digicel had established on a prima facie basis that any of the grounds set out under Rule 53 of the Rules exist. The Commission considers that Digicel must place before the Commission specific references to aspects of its decision to demonstrate or justify the existence of such grounds.

20 According to Black's Law Dictionary, a prima facie case is:-

• (a) the establishment of a legally required rebuttable presumption;

• (b) a party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favour.

21 The Commission in this review hearing utilised the written hearing process to determine the matter. With the body of arguments before it, the Commission took the opportunity to examine the allegations of error and all the grounds submitted in support of the Motion for Review, to first determine whether Digicel produced enough evidence to infer the existence of a ground for review.

22 .

PART TWO – THE SUBMISSIONS

23 In its Notice of Motion and Written Submissions, Digicel contends that the Decision and/or Order of the Commission was reached in breach of the rules of natural...