AFTER a series of monitoring exercises conducted by the Telecommunications Agency, all of which verified Digicel’s unlawful use of spectrum, civil proceedings have been filed in the High Court while criminal charges were filed in the Magistrates’ Court against the telecommunications provider.
The civil proceedings were filed by the Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., and the Telecommunications Agency against U-Mobile Cellular Inc. trading as Digicel Guyana, on Friday.
In an affidavit of support filed with the civil proceedings, Director of Telecommunications, Andre Griffith, stated that the application is extremely urgent since Digicel is currently “squatting” on portions of the 700MHz and the 1800MHz bands which are licensed to the Guyana Telephone and Telegraph Company (GT&T) and E-Networks.
Griffith stated that both GT&T and E-Networks have repeatedly written to the Telecommunications Agency and the Prime Minister requesting urgent intervention in the matter, stating that Digicel’s illegal use is causing interference with their operations, and prevents them from using their assigned spectrums.
“If the court does not urgently intervene, both carriers have expressed to the agency and the Prime Minister that in addition to the severe losses to be incurred by both carriers, deployment of their services will be impeded and delayed for a considerable time, affecting the immediate provision of services to Guyanese,” Griffith said.
On October 5, 2020, the telecommunication sector in Guyana was liberalised when the Telecommunications Act No. 18 of 2016, and the Public Utilities Commission Act No. 19 of 2016, were made effective; Digicel, GT&T and E-Networks were issued their respective telecommunications licences and frequency authorisations on the same day.
Digicel’s current frequency authorisations are 909-914.8 MHz, 1729-1735 MHz, 1904-1910 MHz and 836.6-841.6 MHz for transmitted signal, and 954-959.8 MHz, 1824-1830 MHz, 1984-1990 MHz and 881.6-886.6 MHz for incoming signal.
On November 2, 2020, Digicel made an application to the Telecommunications Agency seeking frequency authorisations to support the immediate upgrade of its mobile network. The requested frequencies included 772.00 – 787.00 MHz for transmitted signal and 717.00-732.00 MHz for incoming signal.
However, on November 5, 2020 and November 6, 2020, as part of the Telecommunication Agency’s frequency-monitoring exercises, it was first discovered that Digicel was already unlawfully using the 700MHz band to transmit between the frequencies of 770 MHz and 785 MHz at its Waterloo Street and Kitty transmission towers.
As a result, on 26 November 2020, Griffith sent a cease-and-desist letter to Digicel captioned “Instructions to Cease Unauthorised Use of Spectrum”, reaffirming that the only frequencies that Digicel was authorised to use were specified in the Frequency Authorisation issued October 5, 2020.
In the letter, he reminded that the use of spectrum without the requisite authorisation was contrary to Section 67 (1)(b) of the Act and instructed, pursuant to Section 9(4)(b) of the Regulations, that transmission of the following frequencies be ceased within seven days of service of the notice.
However, Digicel failed to comply with the instructions, in contravention of Section 48(2) of the Act and Sections 9(4) and 13 of the Regulations.
“In response, instead of complying, in wanton disregard of the laws of Guyana, on December 2 2020, Digicel demanded by way of letter that my letter dated 26 November be rescinded, stating that the unlawful use of spectrum was done in the best interests of its customers, despite acknowledging the requirement of authorisation and the discretion of the minister,” Griffith stated.
After a series of events which included Griffith meeting with Digicel on June 3, 2021, on June 23, 2021, a Notice of Intended Amendment published in the Official Gazettes which proposed 738-748 Rx/Mhz – 793-803 Tx/Mhz spectrum assignment to Digicel, however, the company later objected to this.
In response to that objection, by letters dated August 12, 2021, the Prime Minister withdrew the proposed assignment and gave reasons for the proposed assignment of the 700MHz spectrum and the Telecommunications Agency prepared a detailed report outlining Digicel’s illegal use of the 700 MHz band.
In the affidavit, Griffith stated that multiple monitoring exercises were conducted in December 2020, January 2021, February 2021, April 2021, May 2021, June 2021, September 2021, and October 2021, all of which verified Digicel’s unlawful use of spectrum.
On August 16, 2021, Digicel instituted legal action against the Prime Minister to quash a decision where the government granted E-Networks and GT&T amended frequency authorisations. The company also initiated legal proceedings against the Director of Telecommunications.
“Moreover, I have been advised by counsel and verily believe that regardless of the outcome of those actions, Digicel has no right to use the portions of the 1800 MHz and 700 MHz spectrum, the wider public interest weighing in favour of the injunctions and declarations sought,” Griffith stated.
ATTEMPTING TO UNILATERALLY DICTATE GOVERNMENT’S POLICY
He said that through the series of actions by Digicel, the company is attempting to “unilaterally dictate government’s policy and usurp the decision-making process generally as it relates to assignment of spectrum.”
The Attorney-General is asking the court for a declaration that Digicel is unlawfully using spectrum in the 700 MHz and 1800 MHz frequency band, and is otherwise in breach of Sections 26(1)(e), 28(1)(a), 30(1), 31(1) (f), 48(1) and (2)(a), 67(b) and (c) and 68(1) of the Telecommunications Act 2016 and Sections 9(4)(b)(i) and 10 of the Telecommunications (Spectrum Management) Regulations 2020.
He is also asking for an injunction restraining Digicel from using, transmitting or otherwise accessing the 700 MHz spectrum and the 1800 MHz spectrum without first obtaining the frequency authorisations and permissions which are required by the Act and Regulations, pending the hearing and determination of the matter.
Additionally, he is seeking damages in favour of the state in an amount not less that G$100,000.00 arising from Digicel’s unlawful conduct and a corresponding order that an assessment hearing be held and evidence taken to determine the amount to be awarded.
Further, declaration that Digicel has been unjustly enriched from its unlawful use of spectrum and an order in favour of the state disgorging all revenue and profits earned by Digicel arising out of its unlawful activity and a corresponding order that an assessment hearing be held and evidence taken to determine the amount to be awarded.
He is also seeking exemplary damages in favour of the state, arising out of Digicel’s intentional and wilful acts, in an amount to be determined in an assessment hearing, but not less that G$100,000.00 and interest on any sum awarded.
On the other hand, the criminal charges were filed by Prime Minister Brigadier (retired) Mark Phillips, the Minister with responsibility for Telecommunications against Gregory Dean, the Chief Executive Officer (CEO) of U-Mobile Cellular Inc. trading under Digicel Guyana.
The matters are for Digicel’s failure to comply with the directions issued under Regulations 9(4)(b) and 11 of the Telecommunications (Spectrum Management) Regulations 2020, No. 5 of 2020 (the Regulations) in breach of Regulation 13 of the Regulations.
Further, for the unauthorised use of spectrum contrary to Section 67(b) of the Telecommunications Act 2016; failure as a licensee to comply with Section 30(1) of the Telecommunications Act 2016 and failure to observe the provisions of Sections 30(1) of the Act contrary to section 79(1)(a) of the Act.