Appeal Court blanks TSTT over $26.4m fund-payment challenge

LOCAL telecom provider TSTT and its subsidiary internet service provider Amplia will have to petition the Privy Council directly if it wants to challenge the ruling of the local court in a lawsuit brought by the Telecommunication Authority (TATT) over the failure to pay $26.4 million to a national fund to develop internet connectivity in rural communities.

On Tuesday, Justices of Appeal Gregory Smith, Vasheist Kokaram and Malcolm Holdip declined to give TSTT permission for conditional leave to take its challenge to the Privy Council.

Smith, who delivered the court’s unanimous decision, said for the application to be successful, TSTT had to show its appeal was of great, general public importance which it was not.

While he said it was admitted there were “genuinely disputable issues,” those were not important enough to send to the court in London.

He said although the regulator was involved, it was nothing but a dispute between two parties, especially since other telecom concessionaires did not raise a similar challenge and have paid into the Universal Service Fund (USF).

In June, the Appeal Court ruled on TATT’s procedural appeal with the court holding a High Court judge was wrong to dismiss its case at a preliminary state.

In March 2021, TATT filed a claim against TSTT and Amplia seeking to recover their $26,467,445 in unpaid contributions to the USF.

In a preliminary ruling in February, Justice Carol Gobin upheld TSTT’s challenge that TATT could not bring litigation to recover the debt as it suffered no loss and damage and struck out the lawsuit, as she ruled she did not have the jurisdiction to hear it.

However, the Appeal Court reversed the judge’s ruling and referred the lawsuit back to Gobin.

It is TSTT’s contention that civil debt-enforcement proceedings cannot be initiated against it by TATT for an alleged breach of the concession relating to the USF.

It has argued that under the Telecommunications Act, which established TATT and the USF, the authority could only seek to enforce compliance by either advising the Public Utilities Minister to suspend or revoke its concession or by initiating criminal proceedings.

In its conditional leave application, TSTT, represented by Senior Counsel Martin Daly, said the issue being challenged related to the role and function of concessionaires in a regulatory framework and statutory regime.

“We say the matter requires to be pronounced on further,” Daly said there were interlocking issues between the regulations for the industry, concessions and the legislation which need to be clarified by another court as these were important in a modern and liberal telecommunication environment.

However, in resisting the conditional leave application, TATT’s lead attorney, Senior Counsel Deborah Peake said TSTT’s position was “without merit” and did not come near the threshold required for permission to go to the Privy Council.

She said there could be no dispute that the act provides for the regulator to take action for recovery where a debt is owed.

“It is simply the enforceability of a debt.” She said there were no interlocking effects between the regulations, the concessions or the act which when read together creates an obligation to concessionaires to pay the fund.

Admitted that while the act may be silent on how the regulator could recover the debt, she said there were common-law remedies available.

“Is it necessary to clarify the law? No. Are there conflicting decisions on the point? No. Is there a dispute between law and fact? No. Is the case an exceptional one? No. Does it raise reasonably arguable issues with a prospect of success? No.”

“There is nothing in the act, regulations or concession to displace the settled law…And, there is nothing to warrant sending the matter to the apex court for consideration,” she added. “It cannot be in every case where someone is troubled by how the law was applied, they can go to the Privy Council,” she said.

TATT was also represented by Ravi Heffes-Doon while Christopher Sieuchand and Sonnel David-Longe appeared with Daly for TSTT and Amplia.