Bermuda Cablevision Ltd v Minister of Energy, Telecommunications and E-Commerce
| Jurisdiction | Bermuda |
| Judgment Date | 17 September 2010 |
| Docket Number | Civil Jurisdiction 2010 No. 62 |
| Date | 17 September 2010 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Civil Jurisdiction 2010 No. 62
Mr N Hargun and Mr B Adamson for the Appellant
Mr M Diel and Mr R Myers for the Respondent
The following cases were referred to in the judgment:
Seb Trygg Holding AB v Manches [2005] EWHC 35
R (ABCIFER) v Defence SecretaryWLR [2003] 3 WLR 80
Junos v Minister of Tourism and TransportBDLR [2009] Bda LR 26
Re-transmission of local television channels - Authority of counsel - Legitimate expectation
JUDGMENT of Kawaley, J
Introductory
1. The Appellant, Bermuda Cablevision Limited ("BCV"), complain that the Minister was wrong to refuse on February 3, 2010 its appeal against the December 8, 2009 decision of the Telecommunications Commission ("the Commission"). BCV contends that the Commission's decision was made in breach of its legitimate expectations arising out of, most significantly, a letter dated March 5, 2009 sent to its attorneys by the Commission's attorneys. This letter concerned the terms on which BCV might be permitted by the Commission to alter the basis on which it re-transmitted channels for Bermuda Broadcasting Company Limited ("BBC"), following Court proceedings and a mediation of the related BCV-BBC commercial dispute.
2. Although the present proceedings were commenced by way of a Notice of Application for Leave to apply for Judicial Review dated February 23, 2010, on March 18, 2010 it was ordered by consent that the application should be treated as an appeal under section 60 of the Telecommunications Act 1986 ("the Act").
3. The present application calls for an analysis of the scope of the doctrine of legitimate expectation in the context of the distinctive regulatory framework under the 1986 Act. Interpreting the Act is often problematic to the extent that the meaning of unique provisions, not based on foreign legislation which has already been interpreted by foreign courts or text writers, is in controversy. The facts of the present case also reveal the logistical challenges faced by the Commission, a part-time volunteer body supported both by Department of Telecommunications staff (whose primary constitutional loyalty is to the Minister) and, occasionally outside counsel, in discharging its often complex and demanding duties.
4. Before considering the factual background against which the present appeal arose, it is necessary to appreciate the statutory framework within which the present dispute evolved.
The principal statutory provisions
5. The Department of Telecommunications is established by section 6 of the Act, which provides as follows:
"6 (1) There shall continue in existence the Department of Government known as the Department of Telecommunications which is charged with the duty of assisting the Minister in the discharge of his functions under this Act and to fulfil any duties assigned to it under this Act or the regulations.
(2) Subject to section 61(5) of the Constitution and to the general direction and control of the Minister, the Department shall be under the supervision of a public officer who shall be known as the Director of Telecommunications and shall consist of that officer and such number of other public officers as may from time to time be authorized by the Governor."
6. Section 7 of the Act establishes the Commission as follows:
"Establishment of Telecommunications Commission
7 (1) There shall be established a body to be called the Telecommunications Commission which shall advise the Minister in the discharge of his functions under this Act and discharge such other functions as may be imposed or conferred upon them by or under this Act or any statutory provision.
(2) The Commission shall consist of not less than five persons and not more than nine persons who shall be appointed as Commissioners by the Minister by notice in the Gazette to hold office during good behaviour for such terms not exceeding three years at a time as may be specified in their respective letters of appointment.
(3) The Second Schedule shall have effect in relation to the Commission."
7. Paragraph 18 of the Second Schedule provides as follows: "The staff of the Commission shall be public officers of the Department". It is nevertheless clear from the scheme of the Act that the Commission is a quasi-judicial body which has a role which is separate and distinct from that of the Minister. For example, section 20A of the Act provides:
"Interim and ex parte decisions
20A (1) The Minister or the Commission may make any decision under this Act on an interim basis and may make the final decision effective from the day the interim decision came into effect.
(2) The Minister or the Commission may make an ex parte decision whenever the Minister or the Commission, as the case may be, considers that the urgency of a particular case justifies such ex parte decision, so, however, that within fourteen days or such longer period as the Minister or the Commission may determine, after an ex parte decision is made under this subsection the Minister or the Commission, as the case may be, shall hold an inter partes enquiry for the purpose of making an interim or final decision."
8. Two other sections in the Act are central to the present appeal; one other statutory provision relates to the antecedents of the present dispute. The first provides that a new service may not be introduced nor rates for an existing telecommunications service altered without (a) prior notice to the Commission, and (b) prior public notice inviting objections to the Commission. Section 23 of the Act provides as follows:
"Specified Carriers must give notice to Commission of charges
23 (1) Subject to this Act, no specified Carrier shall initiate a new telecommunication service or vary its rates and charges for existing telecommunication services unless it gives notice in writing of the new service and the proposed rates and charges therefore, the proposed variation in the rates and charges for the existing service and the amount thereof to the Commission and publishes a notice in accordance with subsection (2).
(2) A notice under subsection (1) shall be published in such form approved by the Commission on two separate days in not less than one local newspaper approved by the Commission and shall specify therein that any person may make objections and forward such objections to the Commission within twenty-one days from the second date of publication of the notice
(3) Where a notice under subsection (1) is given, then subject to subsection (4) or subject to the Commission giving a direction under section 24 a new service and the rates and charges therefore or a variation in the existing rates and charges shall not be introduced.
(4) Where the Commission is satisfied with the notice given under subsection (1) and informs the specified Carrier in writing or by notice published in the Gazette that it does not intend to inquire into the matter, the specified Carrier may introduce the new service and the rates and charges therefore or the variation in the existing rates and charges, as the case may be."
9. The next provision of the Act prescribes how the Commission is to adjudicate an application relevant under section 23(1) to introduce a new service or new rates for an existing service. Section 24(1) provides:
"Decision of Commission
24 (1) On receipt of a notice under section 23(1) the Commission may, after making such enquiry into the matter as they may think fit, give a direction -
(a) approving the new service and the rates and charges in respect thereof; or
(b) approving the new service and the rates and charges in respect thereof on a provisional basis; or
(c) changing the rates and charges for the new service in whole or in part; or
(d) disallowing the new service and the rates and charges proposed therefore; or
(e) approving the variation in the existing rates and charges; or
(f) disallowing the variation in the existing rates and charges either wholly or in part; or
(g) postponing the date upon which the variation in the existing rates and charges is intended to be effective to such other date as may be specified; or
(h) otherwise setting out the terms and conditions upon which new service or rates and charges in respect of a new service or the variation of existing rates and charges may be made,
and subject to section 25(5), the specified Carrier shall comply therewith."
10. Section 24(5) empowers the Commission, on receipt of either a complaint about rates or a direction from the Minister, having regard to subsection (2), to change the rates for a service in whole or in part. This suggests that even if a change in rates is approved after a full enquiry under section 24(1), a residual discretion exists under subsection (5) to modify such decision in response to either public or Ministerial demands. However, subsection (2) of section 24 in either case defines the grounds upon which the Commission may base its decision:
" (2) In the exercise of their discretion under subsection (1), or subsection (5) the Commission shall have regard inter alia to -
(i) the cost to the Carrier of the service in question;
(ii) the desirability and need to subsidize other nonprofitable services offered by the Carrier in the public interest;
(iii) the needs of the Carrier for adequate working capital and to establish reasonable reserves;
(iv) international accounting standards where applicable and modifications thereto;
(v) technological advances;
(vi) market conditions in Bermuda and overseas including the likely impact of a new service on other Carriers;
(vii) regulatory changes where applicable;
(viii) the need to afford investors a reasonable rate of return on their investment;
(ix) the question whether in the light of the foregoing, any proposed tariff is just and reasonable and...
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