A DSL subscriber on Friday won a major victory over the Guyana Telephone and Telegraph Company (GT&T), after Justice Rishi Persaud found that the company acted unlawfully when it blocked his internet access after he used it to make calls over the internet.
Justice Persaud found that the use of an internet-based calling service by subscriber James Samuels was not identified as a telecommunications service under the law and he also upheld the contention that GT&T’s telecommunications service monopoly is unlawful and in breach of the Civil Law of Guyana Act.
The ruling awarded $850,000 in damages to Samuels, who subscribed to a Voice Over Internet Protocol (VOIP) Service provided by a US company, after his GT&T internet service was installed. The VOIP service enables a subscriber to send and receive voice communication electronically over the internet by use of a personal computer. It is widely utilised at internet cafes across the country, which has seen protests and actions to block usage by GT&T over the years as a result of losses of revenues for international calling.
Samuels was represented by attorney Parmanand Mohanlal, while GT&T was represented by Senior Counsel Miles Fitzpatrick and attorney Timothy Jonas.
In summarising the case, Justice Persaud noted that Samuels had written to GT&T and informed of his intention to use VOIP services. The company replied and advised that he was prohibited from utilising the DSL service for international telephone activities or for international telephony bypass, under the terms of his contract. Samuels disregarded GT&T’s advice and proceeded to use GT&T’s DSL service for VOIP activities, leading the company to block his internet access and disrupt the service to his residence. It was the company’s position that the disruption was justified, since Samuels was unlawfully operating “an unlicensed telecommunication service” in contravention of the Telecommunications Act and the company’s contract and licence with the government.
“Having carefully considered the evidence led at the trial and the respective submissions of the parties I am unable to find that the subscription to and activation of VOIP by the plaintiff constituted a telecommunication service within the Telecommunication Act,” Persaud wrote in his decision. “I find that that the plaintiff was not in breach of the DSL Service Agreement with [GT&T] and that the unilateral termination of the Plaintiff’s DSL Service by [GT&T] was whimsical and unlawful,” he added.
In addition to damages, Samuels was granted a declaration by the court that there was a breach of contract; an injunction restraining GT&T from interfering with his use of the DSL service for VOIP activities, as an accessory to internet service available to users in Guyana and around the world; and a mandatory injunction directing GT&T to cease interfering with his DSL service for the purpose other than those for which it is lawfully authorised.
Samuels also sought $1 million in damages for breach of contract, which was awarded less $150,000 for court costs. He initially sought special damages in excess of $10 million, but this was withdrawn.
In the ruling, Justice Persaud also noted that Samuels had contended that exclusive licence and monopoly conferred on GT&T to provide telecommunication services in Guyana was unlawful and in breach of the Civil Law of Guyana Act. He noted that GT&T contended that the restriction of monopolies was not relevant to the case and that the Telecommunications Act of 1990 overrode the Civil Law Act.
Justice Persaud, however, said the court was bound by the decision of the Guyana Court of Appeal in Vieira Communications Ltd v. Attorney General of Guyana and another (2009) WIR 279, where it was found that the grant of licences of
permission for broadcasting to government controlled radio stations only has created an unlawful monopoly in breach of the Civil Law Act. He noted that the court also demonstrated that apart from the provisions of the Civil Law Act, the existence of monopolies can infringe constitutionally guaranteed rights. “I accordingly uphold the plaintiff’s submission on this issue and find that the licence granting an exclusive monopoly to [GT&T] to provide telecommunications service or to control or regulate voice and data transmission on the internet is unlawful and void,” he wrote, adding that by parity of reasoning, the monopoly of radio stations extend to GT&T’s telecommunication service.
In an aside, Justice Persaud also noted that Senior Counsel Fitzpatrick had been the lawyer for the appellate in the Court of Appeal case and has successfully argued that the monopoly offended against the Civil Law Act, for which he earned commendations from the Chancellor.
Around the latter part of 2008, the Guyana Revenue Authority sounded warning to internet cafe owners and operators that it would pursue and prosecute businesses that offer international telephone calls over the internet since it was deemed unlawful. Further, GT&T blocked some of the software used to make international calls through the internet. GT&T had made an offer to internet café owners to have them pay US$60 for a “box”, a $10,000 monthly rental for DSL and purchase minutes from GT&T to continue to use VOIP.
At that time, GT&T Marketing Director Wystan Robertson said the focus on the operations of internet cafes arose out of a meeting between then President Bharrat Jagdeo and then GT&T Chief Executive Officer, Joe Singh during which both the issue of the protection of GT&T’s licence and the loss of revenue were discussed. Robertson said that GT&T had made numerous complaints to the various local regulatory bodies over the transgressions which he said have been going on “perhaps for the past eight or nine years.” Apart from the issues of legality and revenue Robertson said that there were “security implications” associated with the use of the VOIP service.
