Belize Telemedia Ltd v Public Utilities Commission

• Jurisdiction: Belize
• Judge: Alexander, J
• Judgment Date: 06 November 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: CLAIM No. CV190 of 2023

Between:

Belize Telemedia Limited

Claimant

and

Public Utilities Commission

Defendant

CLAIM No. CV190 of 2023

IN THE HIGH COURT OF BELIZE

Appearances:

Mr. Fred Lumor SC and Mr. Kileru Awich for the Claimant

Mr. Douglas Mendes SC and Mr. Jose M. Alpuche for the Defendant

Alexander, J

1 This is Belize Telemedia Limited's (“BTL”) application for judicial review of the decision of the Public Utilities Commission (“PUC”) made on 29 ^th December 2022 to grant to BTL a fresh Individual Licence instead of renewing the expired Licence held in BTL's name (“the impugned decision”). BTL seeks:

• 1. A Declaration that the impugned decision is contrary to sections 15 and 19 of the Belize Telecommunications Act, Cap. 229 (“the Act”);

• 2. A Declaration that the impugned decision is ultra vires sections 15 and 19 of the Act and the Telecommunications (Licensing Classification, Authorisation and Fee Structure) Regulations 2002 (S.I. No. 110 of 2002) as amended by S.I. No.163 of 2022 (“the Regulations”) and therefore unlawful, null and void;

• 3. A Declaration that the PUC wrongfully and unlawfully took the impugned decision to “grant” instead of “renewing” the Individual Licence of the claimant in less favourable conditions than the expired Licence in breach of the rules of fairness and the legitimate expectation of BTL.

• 4. An Order of Certiorari to remove the impugned decision into the High Court for the purposes of being quashed.

2 I find wholly against BTL's application and dismiss it. I have set out my reasons below.

Background

3 The PUC is the body vested with the statutory authority to deal with all telecommunication licensing and other services in Belize. With effect from 30 ^th December 2002, the PUC, in pursuance of its powers in section 15 of the Act, granted a Licence to provide telecommunication services in Belize to Belize Telecommunications Limited. I shall refer to this Licence as ‘the 2002 Licence’. However, with the coming into force of the Telecommunications Undertaking (Belize Telecommunications Limited Operations) Vesting Act No. 10 of 2007 (which transferred to and vested the interest of Belize Telecommunications Limited in BTL), the PUC claimed that it issued BTL with a new licence to enter into force on 5 ^th June 2007. A copy of this 2007 licence was produced into evidence by PUC.

4 BTL indicates that it did not apply for a new licence in 2007 and has no record of being issued with same. BTL contends that a new licence was in any event unnecessary since the Vesting Act expressly states that the transfer, vesting and change of name shall not invalidate the terms of any licence granted to Belize Telecommunications Limited. It appears from their submissions that both parties have proceeded as if the licence in issue is the 2002 Licence. This court will also proceed on this assumption. In any event, the terms of both the 2002 and 2007 versions are identical and raise the same points of law by the time this dispute arose in 2022.

5 Clause 3 of Part 1 of the 2002 Licence states that:

…unless revoked in accordance with the provisions of Condition 27 [the Licence] shall continue in force for a period of Fifteen Years, expiring on December 29, 2017, (the “Renewal Date”) and thereafter for consecutive periods of five years (each an “Extension”) unless either the PUC or the Licensee serves upon the other not less than one year's written notice (indicating an intention to terminate the Licence) expiring upon as appropriate the Renewal Date or the last day of any Extension.

6 The initial term of the Licence expired on 29 ^th December 2017. In accordance with clause 3 of Part 1 of the Licence, the term rolled over automatically for a further period of five years expiring on 29 ^th December 2022. I shall refer to this clause 3 as ‘the clause 3 rollover provision’.

7 By letter dated 12 ^th December 2022, BTL wrote to the PUC notifying that the 2002 Licence was set to expire on 29 ^th December 2022 and would automatically renew for a consecutive five-year period in accordance with the terms. On 22 ^nd December 2022, the PUC responded, advising that it was in receipt of legal advice which stated that the clause 3 rollover provision in the Licence is not in consonance with section 15(7) of the Act to which all licences are subject. Consequently, the grant of licences for periods in excess of fifteen years is ultra vires the Act and beyond the PUC's powers. The PUC, guided by this advice, was of the view that the 2002 Licence could not automatically rollover for any period beyond fifteen years.

8 In the letter, the PUC invited BTL's comments on the following proposals:

• 1. To issue BTL a new licence to come into force on December 30, 2022. The licence would be similar with all terms and conditions remaining the same, save and except that the expiry date is to be set to December 29, 2023. This ensures that BTL will have continuity of its licence beyond the expiry date of December 29, 2022.

• 2. To initiate a consultative process leading to the updating of the licence conditions to update dangling conditions that may no longer be relevant to the current environment, conditions imposed such as reference public payphone services, and others that are sure to surface during the consultative process. The PUC is of the opinion that a two-year period, commencing January 2023, suffices for meaningful engagement with all interested parties leading to a revamped, relevant and adequate licence.

9 The PUC received no response from BTL and proceeded to issue a new licence for a period of two years. This new licence was issued under cover of a letter dated 29 ^th December 2022 to BTL. I shall refer to this new licence as ‘the new 2022 Licence’.

10 Having obtained leave on 30 ^th May 2023, BTL filed an application for judicial review of the impugned decision to grant the new 2022 Licence on the following grounds:

• i. The impugned decision of PUC to ‘grant’ instead of to renew the 2002 Licence is unlawful, null and void.

• ii. The impugned decision is illegal, unreasonable, irrational and cannot be justified under any reasonable circumstances.

• iii. The PUC in Part I condition 3 of the expired Individual Licence issued to BTL in 2002 and which came into force on 30 December, 2002 for a period of fifteen (15) years agreed either —

  • (a) to renew the licence, and/or

  • (b) extend the licence for consecutive periods of five (5) years.

• iv. The PUC on or about 29 ^th November 2017 extended the 2002 Individual Licence of BTL for a period of five (5) years which period expired on 29 ^th December 2022.

• v. BTL is now aware, based upon legal advice, that the PUC has no statutory authority or power to grant an extension of an expired Individual Licence.

• vi. BTL has legitimate expectation based on the statutes and regulations of the PUC and the past dealings between the PUC, as regulator, and BTL, as licensee, that the PUC would act in accordance with the law and renew the licence of BTL by adopting a fair procedure or the rules of fairness.

• vii. In deciding to grant a new licence to BTL, the PUC did not give any notice or sufficient notice to BTL, and did not give BTL a fair opportunity to make representations to the PUC and be heard prior to the grant of the said new licence issued for a period of two (2) years.

• viii. The PUC on 22 ^nd December 2022 decided to issue to BTL a new Iicence to come into force on 30 ^th December 2022 for only two (2) years without first complying with the requirements of sections 15 and 19 of the Act and the rules of fairness.

• ix. The condition or term of two (2) years the PUC sought to impose as the duration of the 2022 Licence is less favourable than the previous licence or licences issued to BTL.

• x. BTL did not make any application to the PUC for the grant of a new licence and could not have made a request for a new licence except a request for a renewal of an existing Individual Licence.

• xi. The PUC in making the said decision failed to comply with —

  • a) Regulations 5 and 8 of the Telecommunications (Licensing classification, Authorisation and Fee Structure) Regulations 2002 (S.I. No. 110 of 2002) as amended by the Telecommunications (Licensing Classification, Authorisation and Fee Structure) (Amendment No. 2) Regulations 2022 (S.L No. 163 of 2022) which came into force on 13 ^th December 2022.

  • b) The conditions in Part I Section 3 of the 2002 Licence issued by the PUC to BTL.

• xii. The PUC has no jurisdiction, authority or power to grant a new Individual Licence to an existing licensee under its enabling statutes and regulations.

• xiii. The Individual Licence granted to BTL stated to come into force on 30 ^th December 2022 is therefore illegal, unlawful, null and void. The said “new licence” is a decision taken outside the scope of the authority of the PUC.

11 In response to BTL's application, the PUC filed the first affidavit of Abraham Teck dated 26 ^th June 2023. Mr. Teck is the director of Regulated Services at the PUC and at paragraph 10, the affiant admitted:

‘…that the relevant notice periods in the Belize Telecommunications Act or the Regulations were not followed prior to issuing the Claimant's current licence. The process however, should have been initiated by the Claimant applying for a licence. If the notice periods were to be complied with, the Claimant's licence would have expired and the Claimant would have been unable to operate lawfully.’ [Emphasis added.]

The Legislative Framework

12 The dispute in this case surrounds the PUC's statutory powers in respect of telecommunications licensing so it is convenient, at this stage, to set out in detail the provisions of the governing legislation.

13 Sections 15 and 16 of the Act deal with the grant of licences:

• 15.–(1) Subject to the provisions of this Act, no person shall provide any telecommunication service except under and in accordance with a...