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CableVision's licence

Bermuda CableVision's decision to pull the plug on its television service and subsequent reinstatement of service two hours later may have been better drama than any of the TV shows it had on its schedule between 8 p.m. and 10 p.m. on Friday.

But the moves put Bermuda's standards for business practices in a bad light, and raise serious questions about the quality of legal advice that Government receives.

Indeed, as a drama, this latest episode in "As CableVision Turns" belongs in the "film noir" category, because it is hard to figure out who the good guys are, or if there are any good guys at all.

CableVision followed through on its threat to cease offering service after Puisne Judge Norma Wade Miller ruled on Friday that the injunction the Government had received a week earlier, forcing the company to continue to offer its service, could not be continued.

She made the ruling on the following grounds: Firstly, this was a purely commercial dispute in which the courts should not play a role. Secondly, the courts could not compel CableVision to continue to provide the service anyway, nor could it compel CableVision to accept the one-year licence Government had offered. Thirdly, Government's lawyers had failed to inform the court when the injunction was issued of the central argument CableVision was making, namely that the company believes the Telecommunications Regulations themselves say that a cable licence should be offered for not less than ten years.

Mrs. Justice Wade Miller relied on a series of precedents that state that when a plaintiff applies for an injunction without the defendant being present they must act in good faith and provide all the information for both sides that they can. Because the Government failed to do so in this case, the injunction itself was tainted.

That's legalese for "don't expect the courts to do what you want if you haven't told the whole truth in the first place".

The decision puts the ball back in Government's court. CableVision says it cannot operate with a one-year licence and, without a licence, it must cease to offer service. That may be playing hardball, but it is also correct. It cannot be forced to accept a licence that is not to its liking. And if it does not have licence, it cannot operate.

Government, on the other hand, argues that it should not, on behalf of the public, offer a longer licence unless CableVision improves its quality of service. On Friday night, CableVision reinstated its service when Acting Telecommunications Minister Alex Scott asked for five days breathing space to allow the two sides to settle their differences.

There are several ways forward now. The two sides can negotiate and settle on a licence that establishes the quality of service the company should provide and the term the company needs to justify its investment.

If they cannot agree, then they could go to arbitration to have an independent arbitrator set terms after both sides have given their views.

A Board of Inquiry into cable service could be instituted in which both sides, plus interested members of the public could give their views and benchmarks on quality of service and the regulations could be set.

They could go to court to get a decision on whether Government is compelled to offer a licence with a minimum term of ten years or not.

It has to be assumed in all of this that CableVision wishes to continue to do business in Bermuda and wishes to provide its customers with reliable and high quality service.

It also has to be assumed that Government wishes CableVision to continue to have a licence.

It is important that this issue gets settled. There has been no evidence that CableVision did not meet the conditions set out in its previous licence and on that basis it cannot be disqualified from continuing to do business. If Government did refuse to offer it a workable licence, it would send a message out to any business regulated by Government that whim, not usual business and legal practices, are the order of the day.

And the ramifications of that go far beyond television. If this dispute is not resolved satisfactorially, any individual or business, local or foreign, considering investing in Bermuda will think twice now because it cannot be assured that Government will act in good faith.