Speednet Communications Ltd v The Public Utilities Commission

JurisdictionBelize
CourtSupreme Court
JudgeMichelle Arana
Judgment Date02 March 2018
Docket NumberCLAIM NO. 166 OF 2017
Date02 March 2018

IN THE SUPREME COURT OF BELIZE, A. D. 2017

Before

THE HONOURABLE Madam Justic E Michelle Arana

CLAIM NO. 166 OF 2017

In the Matter of an application for permission to apply for Judicial Review

And in the Matter of an application for Certiorari and Stay of the Decision pending determination

And in the Matter of a Decision of the Public Utilities Commission to demand licence fees, in respect of a licence which it has not issued, contrary to the Belize Telecommunications Act and the Telecommunications (Licensing, Classification, Authorisation, and Fee Structure) Regulations, 2002 (S. I. 110 of 2002)

Between:
Speednet Communications Limited
Applicant
and
The Public Utilities Commission
Respondent

Mr. Eamon Courtenay, S.C., ofCourtenay Coye LLPfor the Applicant

Mr. Fred Lumor, S.C., ofFred Lumor & Co.for the Respondent

Judicial review - Decision by respondent to demand spectrum fees — Whether applicant had a sufficient interest in the matter — Arguable ground for judicial review — Bad faith — Improper motive.

DECISION
1

This is a “rolled – up” or combined application (by consent of the parties) seeking permission for judicial review as well as a substantive judicial review of a decision by the Public Utilities Commission (the “PUC”) dated February 21 st, 2017 to demand spectrum fees from Speednet for the period 2010 to 2016. Speednet Communications Ltd (“Speednet”), the Applicant, is a company duly formed and existing under the Laws of Belize with registered office situate at Mile 2 1/2 Philip Goldson Highway, Belize City, Belize. The Public Utilities Commission (“the PUC”), the Respondent, is a corporate body duly formed and existing under and by virtue of the Public Utilities Commission Act with general office situate at No. 41 Gabourel Lane, Belize City, Belize. The Applicant claims that the PUC has issued no licence to Speednet in respect of frequency authorization for the use of the 700 MHZ bands. Speednet further says that the Caribbean Court of Justice decided in CCJ Appeal No. BZCV 2015/001 Speednet Communications Ltd v. Public Utilities Commission [2016] CCJ 23 (AJ) that the PUC acted unlawfully in demanding that Speednet pay $792,000 in licence fees. Thereafter Speednet demanded the refund of what it calculated to be due it based on the CCJ judgment. Speednet asserts that the PUC, in retaliation, “manufactured” the outstanding licence fees in order to set off the amount ordered to be paid to it by the CCJ. The Respondent PUC for its part claims that Speednet applied for and was granted spectrum authorization (licence) in which the radio frequency bands were stated to be provisional. The PUC is therefore entitled to seek immediate payment of fees due under that licence in compliance with the law.

Leave to Apply for Judicial Review
2

Mr. Courtenay, SC, submits on behalf of the Applicant that the test for leave for judicial review to be granted by the court has been satisfied. Under Part 56 of the Supreme Court Civil Procedure Rules, the Applicant must prove that it has a “ sufficient interest” in the subject matter of the application. The Affidavit of Ernesto Torres filed on behalf of the Applicant reveals that the decision of the PUC to demand $1.44 million in spectrum fees from Spectrum shows that the Applicant is adversely affected by the PUC decision. Mr. Courtenay, SC, also claims that the Applicant has established that there is an arguable ground for judicial review having a realistic prospect of success ( Sharma v Antoine [2006] UKPC at 14(4):

“The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex P Hughes (1992) 5 Admin LR 623, 628 : Fordham Judicial Review Handbook, 4 th Ed (2004) p426.”

There was no resistance to the application for leave for judicial review from Mr. Lumor, SC, who chose in his written and oral submissions to focus on contesting the substantive grounds of judicial review. Having perused the affidavit of the Applicant, I find that the Applicant has satisfied the test for leave to be granted. I therefore grant the permission for judicial review as requested.

The Applicant's Submissions in Support of Application for Judicial Review
3

The grounds for judicial review set out by the Applicant are as follows:

  • a) Decision Unlawful, Null and Void;

  • b) Bad Faith and Improper Motive;

  • c) Permanent Injunction.

Decision Unlawful, Null and Void
4

Mr. Courtenay, SC, argues that the PUC's demand for spectrum fees for the period 2010 to 2016 coupled with its failure to issue a license for the frequency authorization for the use of 700 Mhz bands is unlawful, null and void. He refers to Judicial Remedies in Public Law by Clive Lewis Q.C.:

“…Judicial Review is concerned with ensuring that statutory bodies do not exceed the limits of the statutory powers conferred upon them.” Lewis continues by stating that judicial control is exercised over public bodies by way of the doctrine of ultra vires; and further that statutory bodies (such as PUC) “…are only able to do those things expressly or impliedly authorized by statute; actions not authorized are regarded as ultra vires and of no legal effect.” Mr. Courtenay, SC, therefore submits that the PUC's issuance of a “ provisional license” is an act not provided for in the Act or Regulations, was therefore ultra vires. The PUC was mandated to comply with the regulations in place and cannot act outside the powers granted to it by virtue of the Act and the regulations. Section 12 of the Act vests in the PUC “ control, planning, administration, management and licensing of the radio frequency spectrum”. When exercising that power, the PUC is required to comply with the applicable standards and the requirements of the International Telecommunications Union and its Radio Regulations, as agreed to or adopted by Belize. Section 12 of the Act also empowers the PUC to prepare from time to time a spectrum allocation plan (SAP) in respect of any part of the spectrum. After complying with the process laid out in the Act for the preparation of the SAP, the PUC “shall cause such plan to be published in the Gazette.”

5

The Director of Telecommunications (The predecessor of the PUC) caused the Belize National Frequency Spectrum Band Allocation Plan dated April 30 th, 2001 (the 2001 SAP) to be published in the Belize Gazette of 19 th May, 2001. In keeping with the Act, the 2001 SAP, as published was expressly stated to “confirm with the International Telecommunications Union and its Radio Regulations, Recommendations of the Inter-American Commission for Telecommunications-CITEL and the National Frequency Plan for Belize”. Under that 2001 plan, frequency bands 614.000 – 806.000 is assigned to “ Broadcasting — UHF Channels 38 – 69”. Mr. Courtenay argues that no evidence has been provided by the Respondent to demonstrate that the 2001 SAP has been amended and that plan remains in force.

6

The PUC, in the exercise of its powers as conferred upon it by section 56 of the Act, promulgated the Regulations. Regulation 7 describes the process to be followed when applying for frequency authorization. After considering the application, the PUC must, within 60 days, decide whether it will grant authorization or not. Regulation 7(7) states; where an application isapproved the PUC shall issue the frequency authorization on payment of the prescribed fee. Where a license is refused, the PUC shall state in writing its reasons for refusal”. Speednet applied for frequency authorization in the 700 MHz band pursuant to this Regulation 7. This regulation sets out an elaborate and controlled fee structure. Regulation 8(1) provides:

  • “8(1) Any person applying under these Regulations for an Individual License, a Class License, or a Frequency Authorization shall be required to pay the fees as set out in the Schedule as follows:

    • (a) On filing of the application, the Application fee;

    • (b) On grant of the license, the Initial Fee;

    • (c) At the end of the first calendar year, the Annual Fee; and

    • (d) Annually, after the first calendar year, the Annual Fee.”

Mr. Courtenay, SC, contends that it is clear that Regulation 8(1) is expressed in mandatory terms and carefully calibrates when fees can lawfully be charged by the PUC, and when they are lawfully payable by service providers.

7

In 2011, when Speednet applied for frequency authorization for use of a portion of the 700 MHz band for mobile cellular, the 2001 SAP had assigned that portion of the spectrum to broadcasting. In order to lawfully assign the frequencies applied for, it was necessary for the PUC to reassign the part of the Spectrum, assigned to broadcasting, to mobile cellular. The PUC informed that it was in the process of undertaking this reassignment. Mr. Courtenay, SC, submits that the PUC recognizing that the amendment to the 2001 SAP was required, purported to give Speednet provisional approval to use the frequency for which it had applied. The PUC also deferred charging Speednet any fees for the provisional use of the 700 frequencies. Neither the Act nor the Regulations provide for “ provisional” authorization to be granted for use of any frequency of the 2001 SAP. The PUC acted ultra vires the law when it purported to grant to Speednet “Frequency Authorization…to use the following radio frequency bands as stated in your application”.

8

The PUC has not amended the 2001 Spectrum Plan to assign a portion of the 700 MHz band to mobile services. Speednet's use of a portion of the 700 MHz band is allowed by the PUC, but not according to the regulatory framework now existing. Mr. Courtenay, SC, further argues that it was clear that it was expected that Speednet would “ test” its...

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