The Telecommunication Authority of T&T (TATT) has received a lifeline in its lawsuit against the Telecommunications Services of T&T (TSTT) and its internet service provider subsidiary Amplia, over their failure to pay $26.4 million to a national fund to develop internet connectivity in rural communities.
Delivering a written judgment in a procedural appeal brought by the telecommunication regulator on Tuesday, Appellate Judges Mira Dean-Armour and Vasheist Kokaram ruled that a High Court Judge was wrong to dismiss the case at a preliminary stage earlier this year.
According to the evidence in the case, in March last year, TATT brought the lawsuit against TSTT and Amplia seeking to recover their $26,467,445 in unpaid contributions to the Universal Service Fund (USF).
TSTT brought a preliminary challenge to the lawsuit, as it claimed that TATT could not bring litigation to recover the debt as it suffered no loss and damage.
The majority State-owned company claimed that under the Telecommunications Act, which established TATT and the USF, TATT could only seek to enforce compliance by either advising the Public Utilities Minister to suspend or revoke its concession or by initiating criminal proceedings.
Delivering a preliminary ruling on February 3, High Court Judge Carol Gobin upheld the challenge and struck out the lawsuit, as she ruled she did not have the jurisdiction to hear it.
Presenting submissions in the appeal, TATT lawyer Deborah Peake, SC, acknowledged the alternate remedies suggested by TSTT but claimed that such did not preclude her client from pursuing a civil lawsuit for payment.
Referring to the possible suspension or termination of TSTT’s concession, Peake noted that TATT could only recommend such to the minister, who would have the final say. She stated that such a move would cause significant hardship to citizens based on TSTT’s substantial market share in the local telecommunication industry.
“It (suspension) would not provide universal access as intended, it would in fact deprive the public of service,” Peake said.
She noted that TATT had notified all concessionaires of their fund contribution requirements, calculated as a percentage of their annual gross revenue, and TSTT and Amplia were the only two who did not pay.
Peake also dismissed the prospect of criminal proceedings for non-payment.
“It is highly ironic that TSTT suggests that the authority should prosecute it in the criminal court. It is an irrational position for any commercial entity to take,” she said.
Responding to the submissions, TSTT’s lawyer Martin Daly, SC, stated that Parliament would not have included the remedies in the legislation if it intended TATT to take the legal action it did.
“We should not interfere with what Parliament intended,” Daly said.
While he accepted that TATT managed the USF, he suggested that it could not prove it was affected by the non-payment to warrant the civil lawsuit.
“TATT is not injured if there is no universal service...They have to show they are injured,” Daly said.
Asked by Justice Kokaram if his client had considered entering settlement talks with TATT over the issue, as the fund helps finance improving internet connectivity for citizens, Daly said yes.
“TSTT has been open to discussions and would no doubt remain open to such discussions,” Daly said.
He noted that his client did not intend to defy the mandatory fund contributions as required under the legislation, but was concerned by how the fund was being managed in terms of the projects being pursued.
In their judgment, the appeal panel ruled that Gobin should have allowed the case to go to trial, as TATT had no remedy under the legislation to compel compliance from a concessionaire.
“There should therefore be implied into the silence of the Act, the right of recourse to the court in an action for debt,” the panel said.
As part of its decision, the appeal panel remitted the case for Justice Gobin to consider at an eventual trial.
TATT was also represented by Ravi Heffes-Doon and Rajesh Ramoutar while Christopher Sieuchand and Sonnel David-Longe appeared alongside Daly for TSTT and Amplia.