One in court battle with telecoms regulator
The island’s telecoms regulator is acting outside the law, a major player in the industry has claimed.
Now One Communications has gone to Supreme Court to seek a ruling that the Regulatory Authority of Bermuda has failed to keep up with its responsibilities — and as a result, its has no powers to impose rules and regulations on the sector.
Yesterday, an industry source said that other major telecoms providers were considering their position — and could pitch in with One in the judicial review, which has a hearing scheduled for tomorrow.
The insider explained that the RAB had failed in its statutory duty to complete a market review by the end of April — so it should lose its right to impose regulations on the industry.
The source said: “One of the two largest telecommunications companies in Bermuda is telling the Regulatory Authority you haven’t done your job and because you haven’t done your job, all the rules you have put in place go out the window.”
The source added: “They haven’t even started it. One’s argument is, because the Regulatory Authority has not completed its market review, all the regulatory rules can’t be enforced.
“What One is saying is, because the Regulatory Authority has not done its job, the telecoms market is at a standstill.”
The source said: “The man on the street wants to know why their prices haven’t changed, why they haven’t got that great a service, why there isn’t a lot of real cut-throat competition to their benefit.
“That’s because the regulator has failed to carry out it’s statutory obligations. That’s a big reason.”
And he predicted that — since the power industry had been added to the RAB’s responsibilities — it would slow down even more.
An affidavit by Frank Amaral, CEO of One Communications, submitted as part the firm’s argument, explained: “The markets and services within the electronic communications sectors in Bermuda have changed dramatically since the 2013 market review, which was itself based on data collected ... prior to the Regulatory Authority assuming regulatory responsibility for the sector.”
Mr Amaral told the Supreme Court that continued enforcement of existing rules governing companies with a significant market share, without a fresh review, would cause “serious and irreparable harm to the communications providers on whom ex ante remedies have been imposed and their customers and shareholders, for the development of natural competition in the electronic communications sector in Bermuda and for the Bermuda public in general.”
Mr Amaral said that the result of the RAB’s dead hand on the industry meant that companies could not offer new or enhanced services, product bundles or promotions “in a timely manner or at all”.
He added telecoms firms could not benefit from technology investment by market participants “which discourages further investments”.
And he said that, because firms could not reap full cost benefits of service processes and systems integration, any innovations were being stifled, while “unnecessary costs of compliance” had increased.
One Communications’ application for a judicial review tomorrow, added the degree of change, including mergers, in the industry since the 2013 review highlighted the need for a new market review to determine whether existing regulations laid down by the RAB were needed.
The application said that rules and regulations imposed without up-to-date information on the sector was “the policy equivalent of regulating the sector blindfolded”.
The source added: “The sector has to get permission to raise rates or lower them. It has get approval to vary speeds, we have to get approval to bundle products. And we have to get that approval from the regulator.
“Everyone has been waiting for this market review to be done and to get the ball rolling. It hasn’t been done.
“The input from the telecoms perspective is they’re being held up. You can’t even scratch your nose until you get approval. And the thing they need to do to get the sector out of this space, they haven’t done.”
The RAB declined to comment.
A spokeswoman for Digicel, the other half of the telecoms big two in Bermuda, said: “We are aware of the action and we are considering our position but we have no comment at this time.”
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