Bermuda Telephone Company Ltd v Attorney General 1998 Civil Jur. No. 390

• Jurisdiction: Bermuda
• Judgment Date: 25 February 1999
• Docket Number: Civil Jurisdiction 1998 No. 390
• Date: 25 February 1999
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1998 No. 390

BETWEEN:

The Bermuda Telephone Company Limited

Applicant

and

The Attorney General

Respondent

Mr. M. Diel and Mr. R. Myers for the Applicant

Mr. W. Pearce Q.C., Acting Attorney General for the Respondent

Mr. T. Marshall and Mrs. E. Martin, Interveners for Quantum Communications Limited.

Grape Bay v Attorney General 1997 Civil Jur. No. 273

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Telecommunications Act 1986, s. 21

Bermuda Constitution Order, s. 10, 6(8)

whether s. 21 of the Telecommunications Act void for inconsistency with s. 10 of the Constitution

JUDGMENT

PRELIMINARY

This is an application by Originating Summons dated 13 November 1998, by Bermuda Telephone Company, (‘BTC’), the Applicant, under section 15 of the Constitution. The Applicant seeks inter alia 'a declaration that:

• 1. Section 21(1)(a) and (b) of the Telecommunications Act 1986 is void for inconsistency with section 10 of the Bermuda Constitution, in that it hinders the Applicant in its enjoyment of its freedom of association.

• 2. The Directive of the Telecommunications Commission dated 26^th June, 1998 ordering the Applicant to ‘… take all necessary steps to provide the connection of the BTC network to the Quantum network by no later than 3 p.m., July 15, 1998’ is void for inconsistency.

  • (1) with section 10 of the Bermuda Constitution, in that it hinders the Applicant in its enjoyment of its freedom of association; and

  • (2) with section 6(8) of the Bermuda Constitution, in that it was issued by the Commission without giving the Applicant a fair hearing.

• 3. The Directive of the Minister of Telecommunications dated 14^th August, 1998 varying the Telecommunications Commission's said Directive by ‘changing the date in paragraph 3A from ‘July 15, 1998’ to ‘September 3, 1998’ is void for inconsistency:

  • (1) with section 10 of the Bermuda Constitution, in that it hinders the Applicant in its enjoyment of its freedom of association; and

  • (2) with section 6(8) of the Bermuda Constitution, in that in issuing it the Minister acted with bias or there was an appearance of bias and the Applicant was therefore deprived of a fair hearing.

The Applicant did not present any argument in respect of a declaration concerning paragraphs 2(2) and 3(2) of its Originating Summons.

The challenge to section 21(1)(a) and (b) of the Telecommunications Act 1986 (hereafter referred to as ‘the Act’) as being void for inconsistency with the Constitution renders an examination of the Act and relevant provisions of the Constitution necessary and inescapable.

THE FACTUAL BACKGROUND

I take the facts from the affidavit evidence. BTC is a Carrier and owns and operates a telecommunications network for the provision of telecommunication services, including local network services in Bermuda. BTC is Bermuda's incumbent local exchange carrier. BTC was granted a licence under section 9 of the Act to establish, maintain and operate a public telecommunication service. Until 19 December, 1998, BTC was the only Carrier licensed to provide and providing local network services in Bermuda.

On 19 December 1998 Quantum Communications Limited (‘Quantum’) was granted a licence by the Minister to maintain and operate within Bermuda various public telecommunication services by means of a public network, including local network services.

About 28 January 1998, BTC and Quantum had negotiated an interconnection agreement providing for the interconnection of the respective networks and, on 13 February 1998, BTC filed the agreement with the Telecommunications Commission (‘the Commission’) for its approval under section 23 of the Act.

The terms of the interconnection itself are addressed in the interconnection agreement. There is a collocation agreement, which BTC in this case has under section 23 of the Act filed with the Commission on 23 June 1998 and which has received interim approval from the Commission on 21 August 1998.

On 4 March 1998, Quantum objected to certain aspects of the interconnection agreement and applied for an ‘interim and immediate ruling. … that requires Quantum and BTC to exchange traffic on a without prejudice basis.’ BTC responded to that objection and that application on various grounds including constitutional grounds on 8 and 27 April 1998.

On 1 May 1998 the Commission issued a decision approving the rates and charges, in relation to the interconnection agreement submitted by BTC, on an interim basis. BTC did not understand the decision, asked for clarification on 12 May 1998 and, accordingly, in the interim, did not execute the interconnection agreement.

On 19 May 1998, the Commission issued a clarification of its decision of 1 May 1998 which clarification did not assist BTC's understanding. Accordingly, BTC still did not execute the interconnection agreement.

On 22 May 1998, Quantum under section 22 of the Act filed a complaint with the Commission alleging that BTC ‘refuses to permit Quantum to connect to its network’ in breach of certain duties under the Act, in particular, the duties set out in section 21(1)(a) and (b) thereof, namely the duty to ‘furnish telecommunications service upon any reasonable request therefor and on reasonable terms and conditions’ and the duty to ‘establish physical connections with other Carriers on reasonable terms and conditions’ respectively.

On 22 June 1998, BTC wrote to the Commission making preliminary comments on the complaint and indicating, upon reliance on section 22 of the Act, that it had elected not to refer the matter of the complaint to the Commission for resolution. On 25 June 1998, Quantum wrote to the Commission electing to refer the matter of the complaint to the Commission for resolution, also upon reliance on section 22 of the Act.

On 26 June 1998, the following day, the Commission issued a Directive purporting to direct BTC ‘to take all necessary steps to provide the connection of the BTC Network to the Quantum Network by no later than 3 p.m., July 15 1998’.

On 7 July 1998 BTC appealed the Directive of the Commission under section 25 of the Act and, also under that section, applied for a stay of the Commission's decision pending the determination of the appeal, which was granted. In its submissions on appeal to the Minister. BTC raised the constitutional issues which are referred to in the Originating Summons.

On 14 August 1998, the Minister issued his decision on the appeal, confirming the Commission's directive, subject only to changing the date by which the Commission had ordered BTC to interconnect to 3 September 1998. In his decision, the Minister addressed and dismissed the constitutional arguments.

By Notice of Motion dated 25 August 1998 and amended 30 September 1998, BTC appealed the decision of the Minister to the Supreme Court under section 60 of the Act. Amongst the grounds of appeal are the constitutional grounds mentioned above.

On 26 August 1998 BTC applied to the Supreme Court for a stay of the Minister's decision and on 9 October 1998, after a hearing of the stay application this Court refused the application.

The Applicant has stated that neither the Directive nor the Decision nor section 21(1)(a) and (b) of the Act might be said to be reasonably required in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedoms of others within the meaning of section 10(2) of the Constitution.

THE ACT

The subject matter and the purpose of the Act are all set out in its crisp preamble namely ‘Whereas it is expedient to make other and better provision relating to telecommunications’. The subject matter is of course ‘telecommunications’ which by definition under section 2 of the Act means ‘any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by wire, radio, optical, or other electromagnetic system and cognate expressions shall be construed accordingly’. Section 2 of the Act also sets out various definitions of expressions including ‘Carrier’, ‘public telecommunication service’ and ‘telecommunication service’ as follows:

“‘Carrier’ means a person who either alone or in conjunction with others, owns or operates...