The State, through Attorney General Anil Nandlall SC, is suing Digicel Guyana for what it says is its unauthorised use of the spectrum in breach of the Telecommunications Act.
Prime Minister Mark Phillips, who has responsibility for telecommunications, has also since filed criminal charges against Gregory Dean, Chief Executive Officer of Digicel, over its alleged unauthorised use of the spectrum.
Dean has since been summoned to appear in the Georgetown Magistrates’ Courts on October 22 to answer to more than a dozen charges relating to spectrum management.
In his fixed date application (FDA) against U-Mobile, which operates as Digicel Guyana, the Attorney General (AG) and the Telecommunications Agency (the Applicants), are seeking a declaration that Digicel, (the Respondent) is unlawfully using spectrum in the 700 MHz and 1800 MHz frequency bands, and is in breach of the Telecommunications Act and the Telecommuni-cations (Spectrum Management) Regulations.
The Applicants are also seeking a declaration that Digicel’s use of the 700 MHz frequency band overlaps and is causing interference, including harmful interference, with the assigned frequencies and operations of other licensed telecommunications operators.
The Applicants are contending that the Digicel has been unjustly enriched “from its unlawful use of spectrum,” and are asking the Court to so declare. On this point, they want an order disgorging all revenue and profits earned by the Company.
Against this background, the AG is asking the High Court to grant a permanent injunction restraining the cellphone giant and its agents from using, transmitting or otherwise accessing both the 700 and 1800 MHz spectrum, without first obtaining the frequency authorisations and permissions that are required by the Act and Regulations.
In the circumstances, the State is seeking damages no less than $100,000 together with exemplary damages in the same amount; but is asking that an assessment hearing be held to determine the full quantum to be awarded together with interest.
The State is also asking for costs and any further order the Court deems just to grant.
Citing the grounds for the application, Nandlall noted that the Telecommunications Agency replaced the National Frequency Management Unit (NFMU), which was responsible for, among other things, radio frequency spectrum management policy and planning which has now been vested in the Agency.
According to the AG, the Act does not vest, authorise or grant permission to Digicel for the use of the spectrum.
Historically, the telecommunications sector operated as a natural monopoly owned by the government which granted a singular licence to the Guyana Telephone and Telegraph (GTT) to provide various types of telecommunications services.
Exclusive
The FDA notes that the exclusive nature of the telecommunications sector hindered a competitive environment, and among other things created an enabling environment for the imposition of astronomical pricing on the public.
The AG notes in the application for the state that in 2001, Cel Star Guyana Inc., later acquired by Digicel, was issued with a cellular licence, thus creating a duopoly, with only Digicel and GT&T launching mobile services and competing within the mobile market.
The AG notes, however, that the issuance of a frequency authorisation to E-Networks and its corresponding launch in the mobile sector, subject to the grant of the requested interlocutory “relief, will now have a tremendous positive impact on the public’s access to cellular services, there being another entrant in the marketplace.”
He deposed that Digicel, despite being required to pay 1% of its gross revenue as a licence fee for its cellular licence, has never paid the fee which is currently estimated to be in excess of $2 billion.
The AG has said that being the only remaining coverage band allocated for mobile communications in Guyana where spectrum has not been wholly or substantially exhausted, the assignment and use of the 700 MHz band is critical to ensuring equitable distribution to operators so as to facilitate competition and the provision of adequate service to consumers.
Nandlall said that prior to liberalisation and during its status and tenure as a principal mobile service provider, Digicel was assigned a wide range of spectrum in both coverage and capacity bands which assignments were and are capable of supporting its existing services.
He notes that for example, before its “unlawful” use of 700 MHz and 1800 Mhz spectrum, in 2016 Digicel announced the launch of its 4G network.
The technique of “carrier aggregation,” the application argues, allows an operator to amalgamate multiple frequency bands to increase its total bandwidth and network coverage. Though the utilization of Digicel’s authorised frequencies is already sufficient for the maintenance of its current services, its authorised access to a wide range of spectrum equips it with the ability to aggregate frequency bands to deliver similar services as on the 700 MHz Band.
The AG’s application deposes that Digicel is using the 700MHz band in a manner inconsistent with Guyana’s adopted Asia-Pacific Telecommunity (APT) band plan, impairing the efficient usage of the spectrum and denying the opportunity for other carriers to use their lawfully assigned spectrum within this frequency band.
The AG argues that Digicel’s insistence on unlawfully occupying the bands in this manner, is untenable and must be restrained since it is not in compliance with the APT band standard, and severely impairs the use of the additional spectrum in the band by the other providers.
Nandlall says that at no time was Digicel either expressly or impliedly authorised to use the 700 MHz and the 1800 MHz band.
He said that despite numerous warnings, Digicel continues its unauthorised use of the 700 MHz band and is currently transmitting from over 41 towers it owns or operates.
The AG further noted that it was through regular monitoring that on December 1st, 2020, the Agency for the first time discovered that Digicel was unlawfully using the 1800 MHz band outside of the portion of assigned spectrum i.e. 1824-1830 MHz, transmitting on 1824-1840.4 MHz band.
Nandlall said that on August 16, of this year, Digicel instituted judicial review proceedings in a veiled attempt to impel the Court and the Minister to endorse its unlawful act, being the unauthorised and previously undisclosed use of the 700 MHz spectrum.
The AG deposed that no interlocutory relief has been sought or granted in those proceedings, which he opined were filed in an attempt “to buy time for its illegal use, while at the same time stymying the expansion of GTT’s and E-Networks’ operations.”
“Moreover, regardless of the outcome of those actions, Digicel has no right to use the portions of the 1800 MHz and 700 MHz spectrum, the wider public interest weighing in favour of the injunctions and declarations sought,” Nandlall advanced.
He said that “moreover regardless of the outcome of those matters, the Court is not empowered to direct a decision maker to allocate spectrum in a particular manner.”
He said that Digicel’s current “unauthorised use” of spectrum is causing harm to the operations of E-Networks and GTT.
Nandlall said that while Digicel’s operations will remain unaffected if required to cease its “illegal” use, if it does not, it will prevent E-Networks and GTT from deploying services to tens of thousands of their customers.
“It is evident that Digicel has taken an abusive opposing stance to liberalisation, seemingly to impede competition and restrict the other operators from operating in their legally assigned spectrum,” the AG’s application states; while adding that “it also has adopted a similarly abusive stance in its use of the 1800 MHz spectrum, attempting to stymie its assignment, despite not paying spectrum fees for use of either spectrum.”
“Simply put, Digicel is attempting to unilaterally dictate Government policy and usurp the decision-making process generally as it relates to assignment of spectrum” the AG asserts.
For such reasons, the State is hoping to be granted the reliefs sought.
