Derek Achong

The Telecom­mu­ni­ca­tions Au­thor­i­ty of T&T (TATT) is ap­peal­ing the dis­missal of its law­suit against Telecom­mu­ni­ca­tions Ser­vices of T&T (TSTT) and its sub­sidiary Am­plia, over their fail­ure to pay $26.4 mil­lion to a na­tion­al fund to de­vel­op in­ter­net con­nec­tiv­i­ty in rur­al com­mu­ni­ties. 

Ap­pel­late Judges Mi­ra Dean-Ar­mour and Vasheist Kokaram re­served their judge­ment on the ap­peal af­ter hear­ing sub­mis­sions from both par­ties dur­ing a vir­tu­al hear­ing yes­ter­day. 

Ac­cord­ing to the ev­i­dence in the case, in March last year, TATT brought the law­suit against TSTT and Am­plia seek­ing to re­cov­er their $26,467,445 in un­paid con­tri­bu­tions to the Uni­ver­sal Ser­vice Fund (USF). 

TSTT brought a pre­lim­i­nary chal­lenge to the law­suit, as it claimed that TATT could not bring lit­i­ga­tion to re­cov­er the debt be­cause it suf­fered no loss and dam­age. 

The ma­jor­i­ty State-owned com­pa­ny claimed that un­der the Telecom­mu­ni­ca­tions Act, which es­tab­lished TATT and the USF, TATT could on­ly seek to en­force com­pli­ance by ei­ther ad­vis­ing the Pub­lic Util­i­ties Min­is­ter to sus­pend or re­voke its con­ces­sion or by ini­ti­at­ing crim­i­nal pro­ceed­ings. 

De­liv­er­ing a pre­lim­i­nary rul­ing on Feb­ru­ary 3, High Court Judge Car­ol Gob­in up­held the chal­lenge and struck out the law­suit. 

Pre­sent­ing sub­mis­sions be­fore the ap­peal pan­el yes­ter­day morn­ing, how­ev­er, TATT’s lawyer Deb­o­rah Peake, SC, said that Jus­tice Gob­in was plain­ly wrong to dis­miss the case and that it should be re­mit­ted to an­oth­er judge to con­sid­er the sub­stan­tive is­sue in the case if the ap­peal is up­held. 

While Peake ac­knowl­edged the al­ter­nate reme­dies sug­gest­ed by TSTT, she claimed that they did not pre­clude her client from pur­su­ing a civ­il law­suit for re­pay­ment. 

Re­fer­ring to the pos­si­ble sus­pen­sion or ter­mi­na­tion of TSTT’s con­ces­sion, Peake not­ed that TATT could on­ly rec­om­mend such to the min­is­ter, who would ul­ti­mate­ly have the fi­nal say. 

How­ev­er, she stat­ed that such a move would cause sig­nif­i­cant hard­ship to cit­i­zens based on TSTT’s sub­stan­tial mar­ket share in the lo­cal telecom­mu­ni­ca­tion in­dus­try. 

“It (sus­pen­sion) would not pro­vide uni­ver­sal ac­cess as in­tend­ed, it would, in fact, de­prive the pub­lic of ser­vice,” Peake said. 

She not­ed that TATT had no­ti­fied all con­ces­sion­aires of their fund con­tri­bu­tion re­quire­ments, cal­cu­lat­ed as a per­cent­age of their an­nu­al gross rev­enue, but TSTT and Am­plia were the on­ly two who did not pay.  

Peake al­so dis­missed the prospect of crim­i­nal pro­ceed­ings for non-pay­ment. 

“It is high­ly iron­ic that TSTT sug­gests that the au­thor­i­ty should pros­e­cute it in the crim­i­nal court. It is an ir­ra­tional po­si­tion for any com­mer­cial en­ti­ty to take,” she said. 

Re­spond­ing to the sub­mis­sions, TSTT’s lawyer, Mar­tin Daly, SC, stat­ed that Par­lia­ment would not have in­clud­ed the reme­dies in the leg­is­la­tion if it in­tend­ed TATT to take the le­gal ac­tion it did. 

“We should not in­ter­fere with what Par­lia­ment in­tend­ed,” Daly said. 

While he ac­cept­ed that TATT man­aged the USF, he sug­gest­ed that it could not prove it was af­fect­ed by the non-pay­ment to war­rant the civ­il law­suit. 

“TATT is not in­jured if there is no uni­ver­sal ser­vice...they have to show they are in­jured,” Daly said. 

Asked by Jus­tice Kokaram if his client had con­sid­ered en­ter­ing set­tle­ment talks with TATT over the is­sue, as the fund helps fi­nance im­prov­ing in­ter­net con­nec­tiv­i­ty for cit­i­zens, Daly said yes. 

“TSTT has been open to dis­cus­sions and would no doubt re­main open to such dis­cus­sions,” Daly said. 

He not­ed that his client did not in­tend to de­fy the manda­to­ry fund con­tri­bu­tions as re­quired un­der the leg­is­la­tion but was con­cerned by how the fund was be­ing man­aged in terms of the projects be­ing pur­sued. 

TATT is al­so be­ing rep­re­sent­ed by Ravi Heffes-Doon and Ra­jesh Ra­moutar, while Christo­pher Sieuc­hand and Son­nel David-Longe ap­peared along­side Daly for TSTT and Am­plia.