Logic Communications Ltd v Minister of Telecommunications and TeleBermuda International Ltd 1999 Civil Jur. No. 272

• Jurisdiction: Bermuda
• Judgment Date: 15 February 2000
• Date: 15 February 2000
• Docket Number: Civil Jurisdiction 1999 No. 272
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1999 No. 272

BETWEEN

Logic Communications Ltd

Plaintiff

and

The Minister of Telecommunications

First Defendant

and

Telebermuda International Limited

Second Defendant

Mr. W. Pearce Q.C. and Miss N. Stoneham for the Applicant/First Defendant

Mr A. Dunch and Mrs. E. Martin for the Second Defendant

Mr M. Diel and R Myers for the Plaintiff

Telecommunications Act 1986, s. 13, 60

Preliminary issue — Whether appropriate for the Court to grant discretionary declaratory relief — Voice and data services — Alternative statutory mechanism under s. 60

RULING

PRELIMINARY

This is an application by the Minister of Telecommunications, the First Defendant, to the Court for the determination of a preliminary issue, namely, whether it is appropriate for the Court to grant discretionary declaratory relief in this case on the grounds:

• (i) that there is an alternative procedure available to the Plaintiff for the determination of the declaration sought by the Plaintiff in the subject proceedings which is more convenient or more appropriate, namely proceedings pursuant to section 13 of the Telecommunications Act (‘the Act’);

• (ii) that proceedings invoked by the First Defendant pursuant to section 13(1)(b) of the Act to possibly amend the licence of the Plaintiff to permit it to provide voice services might render the subject proceedings unnecessary and/or render any decision resulting from the subject proceedings as serving no practical purpose.

In the alternative, the First Defendant seeks an order to stay the subject proceedings so long as the First Defendant is pursuing in good faith her own motion which may result in a variation of the terms of the Plaintiff's licence so as to permit it to provide voice services.

FACTUAL BACKGROUND

On or about 24 December 1993, Business Systems Ltd. applied for a telecommunications licence to permit it to offer the services of a public access internet electronic mail message system and provide customers access to the internet. After a public hearing before the Telecommunications Commission (‘the Commission’)the First Defendant granted Business Systems Ltd. a licence to provide ‘a data only public telecommunication service’. On 10 November 1997 Business Systems Ltd. changed its name to Logic Communications Ltd., the Plaintiff. On or about the 29 November 1997, a licence identical in terms to the licence issued to Business Systems Ltd. was issued to Northrock Communications Ltd. making Northrock the second internet service provider for Bermuda and a competitor to the Plaintiff.

Cable & Wireless Bermuda Ltd. (‘C&W’) and TeleBermuda International Ltd. (‘TBI’), the Second Defendant, are international carriers which provide telecommunications services to and from Bermuda. Bermuda Telephone Company (‘BTC’) is a carrier licensed to provide telecommunications services within Bermuda. In providing internet and e-mail services to their customers the Plaintiff and Northrock have utilised the telecommunications facilities of BTC, C&W and the Second Defendant.

By letter dated 9 June 1999 the First Defendant advised the Plaintiff, Northrock, C&W and the Second Defendant that she was considering amendments to their respective licences under section 13(l)(b) of the Act to permit the Plaintiff and Northrock to provide voice services and to permit C&W and the Second Defendant to provide internet services.

On 23 July 1999, the Plaintiff offered its logicphone service to its internet customers which would permit its internet customers to dial up a number on their telephone and be connected over the internet to persons outside Bermuda at much reduced rates by comparison with existing telephone rates. Upon learning of this development the First Defendant requested a meeting with the Plaintiff. On 27 July 1999 representatives of the Plaintiff met with the First Defendant and the Solicitor General. At the meeting the Plaintiff described its logicphone services in detail following which a general discussion took place as to...