Late yesterday Chief Justice Abdulai Conteh ordered BTL to reconnect Speednet’s unfiltered access to an E-1 internet circuit and issued an order preventing BTL from removing any of Speednet’s antennae or equipment from its towers or building. It was an important victory for Smart - because by the CJ’s order, Smart will now be able to restore its international call services.
Specifically, Chief Justice Conteh ordered BTL to, “reinstall all equipment belonging to the claimant (in this case Smart) removed by the defendant (in this case BTL) from its sites and towers.” He also instructed BTL to immediately, “provide to the claimant reasonable and non-discriminatory terms for all telecommunication services ordinarily offered when requested by the claimant including E-1 service.” In his ruling yesterday the Chief Justice also referred to BTL as the dominant player in the industry but today the Public Utilities Commission said that’s not the CJ’s place to determine.
Chairman John Avery told us they are studying the ruling.
John Avery, PUC Chairman
“It is a very strange ruling. We have looked at the transcript, we haven’t seen the official order yet and so we still don’t understand the full implications of the injunction. I think as the judge said, he is being cautious and I would think he ruled in this way because he is trying to prevent any potential harm that might be caused to the customers.
If you listen in there says clearly I am giving you the relief and one of the reliefs sought is that BTL is not to deny any service that it ordinarily offers in the course of its business, something to that effect. Again this E-1 unfiltered service that they call it is not something that BTL ordinarily gives to anybody. So for Smart to demand that and the implication of this ruling of the judge on that demand by Smart, that is something we have to review very carefully and certainly the PUC has not sanctioned that type of service and so its not being offered to anyone and really if Smart is to get it and if others don’t get it, then that in itself is in violation of the law.
The thing is that if you go back to that same 42-1 (Telecommunications Act), that it seems the judge is saying BTL is contravening then 42-4 really says it is the PUC who would say a provider is dominant. So there is still some things that we need to consider very carefully with the ruling from this judge and I hesitate it say it but the issues here are very complex and I don’t know that two days of hearing both sides arguing and putting up their side of the story is really enough to fully appreciate what has developed here. If you look at the laws and if you look at the situation, BTL is saying listen, the rates that are in these agreements that you are not, we are in effect subsidizing you and the law is clear about that.”
In his ruling yesterday, the Chief Justice invited the PUC to intervene at trial – noting that they have a role to play and it’s a right and a role that they are asserting. There is a standing directive from the PUC to both Smart and BTL – ordering them to negotiate new agreements for the lease of towers and internet access. The deadline given was December 23rd and Chairman Avery says that date stands.
John Avery,
“Whatever process we started we have to see them through. That is our legal obligation, the law does not allow us to abdicate that or to defer it to anyone else. So we’ve already given instructions and we have imposed a deadline and we’ve said that if you don’t send negotiated agreements to us for approval then we will set the terms which based on the law shall be binding on both parties. We still intend to see that through. We have a serious responsibility to protect this industry, the country, the consumers, all the stakeholders and we can’t abdicate that.
We are respectful to the court and we’re mindful of this ruling. We won’t try to do anything to pick a fight with the court for want of a better term but we cannot allow this ruling which is just an injunction and really there has been nothing really determined in the matter, we can’t really allow this now to say our hands are tied and we can’t regular the sector.”
