Court: RA failed to meet survey time limit
The Regulatory Authority failed in its statutory duty to carry out a market review of Bermuda’s telecoms sector within four years of the last survey, the Supreme Court ruled.
This means the regulator’s market information is not as up-to-date as the law requires and consequently Chief Justice Ian Kawaley has put limits on the enforcement actions the RA can take under its 2013 “significant market power” rules.
One Communications Ltd brought the case against the RA in June this year, disputing the enforceability of the “ex ante remedies” in the regulator’s “Obligations for Operators with Significant Market Power”, dated August 2013.
The basis of One’s complaint was that the RA had failed to comply with the time limit for completing a fresh market survey by April 29, 2017 — that is, within four years of the last survey — as stipulated by the Electronic Communications Act 2011.
Telecommunications (Bermuda West Indies) Ltd, which trades as Digicel, and BTC were also interested parties in the case.
In his judgment, Mr Justice Kawaley said it was “clear beyond argument that the RA has failed to comply with the pertinent time-limit to a more than trivial extent”.
The judge added that “any attempt by the Regulatory Authority to initiate enforcement action for non-compliance with any ex ante remedies provided for in the Regulatory Authority’s ‘Obligations for Operators with Significant Market Power (Consultation Summary, Final Decision, Order and General Determination)’, dated 7 August, 2013 is ultra vires, unlawful and invalid, but only to the extent that such enforcement action relates to an alleged failure to comply with any of the said remedies which are no longer ‘necessary to prevent or deter anti-competitive effects’ as required by section 24 (1) of the Electronic Communications Act 2011.”
CellOne told The Royal Gazette: “The Supreme Court found the RA in breach of a key statutory obligation that sits at the heart of their mandate.
“We are very thankful for the relief granted to us by the Court.
“Notwithstanding the litigation, we continue to constructively work with the RA as we complete the final work on FibreWire and invest in next generation TV.”
A spokesperson for the RA said the regulator welcomed the Court’s judgment.
“The Authority notes that the system of regulation of Significant Market Power and the 2013 ex ante remedies that were the focus of the judicial review proceedings remain legally valid,” the RA stated.
“The Court has declared, however, that the Authority should focus any enforcement activity that is based on the 2013 ex ante remedies on the prevention or deterrence of anti-competitive conduct.
“Furthermore, we would note that, via our ‘Review of the Electronic Communications Sector’, which was launched for public consultation on October 17, 2017, the Authority is moving towards a revised framework for regulation of the sector.
“Consistent with the Court’s judgment, and as part of the 2017 Review, we continue to pursue a pragmatic approach that ensures that regulation remains relevant, particularly with respect to new services and networks.”
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