Thu | Aug 17, 2017

Rejected! - Court tosses Caricel application

Published:Wednesday | January 25, 2017 | 1:32 AMLivern Barrett
Yesterday, a security officer stands guard at the entrance to this complex on Lindsay Avenue, St Andrew where a Caricel office is located.

The Supreme Court yesterday tossed aside an attempt by Symbiote Investments Limited, the company seeking to become the third player in the local telecommunications market under the brand Caricel, to block an investigation being conducted by Jamaican regulators that could result in the revocation of two licences granted by the Andrew Holness administration last year.

Justice Leighton Pusey yesterday refused an application for judicial review by lawyers for Symbiote Investments after the entity was served with notices by the Office of Utilities Regulation (OUR) and the state-run Spectrum Management Authority (SMA) last December that it was the subject of an investigation and requested answers to a number of questions.

The 26-page ruling by Pusey provided some details on an issue that has been shrouded in secrecy since news first broke that the Holness administration was attempting to revoke the licence granted to Symbiote to provide telecoms service in Jamaica.

In May last year, Symbiote was granted a domestic mobile carrier and service provider licence to provide local, fixed and international services.

Following a meeting with Cabinet to discuss concerns raised by the Office of the Contractor General (OCG), the entity was also granted a spectrum licence last September by Energy Minister Dr Andrew Wheatley.

NATIONAL SECURITY CONCERNS

But court documents show that last month the OUR and the SMA wrote to Symbiote indicating that because of national security concerns, the entity would be the subject of an investigation under the

Telecommunications Act and that it could lead to the revocation of the licences.

As a result, lawyers for Symbiote went to court seeking, among other things, orders declaring the actions of the OUR and the SMA exceeded their authority under the Telecoms Act, an order of certiorari to quash their decision to issue the notices of investigations and a prohibition order blocking both agencies from taking action against the entity arising from the probe.

Claim has nothing but a harmless error, says Justice Pusey

Yesterday, in seeking to convince Justice Leighton Pusey to allow Symbiote Investments Limited (operators of Caricel) to challenge the notices of investigation before the Judicial Review Court, Douglas Leys, the entity’s lead attorney, noted several allegations raised by the Office of Utilities Regulation and Spectrum Management Authority in the notices, but argued that the document should set out the specific breaches of the terms and conditions of the licence it was granted.

The Supreme Court has ruled against Caricel on its application for leave to seek judicial review of two letters issued by both agencies.
In addition, he argued that Symbiote should have been required, in the notice, to justify the subject of the breach or take remedial action within a specific timeframe.

But in refusing the application for leave to go to the Judicial Review Court, the High Court judge said he did not believe Symbiote had a “realistic prospect” of succeeding with its claim.

Among the reasons for his decision, Pusey said, was that the notices at the centre of their claim “do not contain anything but a harmless error”. He noted also that the entity has ample time during the probe to be heard and provide evidence.

Caricel poses no threat to national security, argues company secretary

In response to yesterday’s Supreme Court ruling, Minett Lawrence, company secretary for Symbiote Investments Limited, operators of Caricel, said in a statement, “we are comforted by the legal basis on which the court found that the matter should not go forward for judicial review.

The court found that the errors or mistakes in the notices were harmless, and agreed with the agencies (Office of Utilities Regulation and Spectrum Management Authority) that they were merely informing us of their intentions. It is in this regard that the judge determined the matter would not go forward.”

The statement further said there was unanimous agreement between all parties and the court that the notices were bad. However, the court found that the process embarked on by the agencies was not one which required any notification to the company and did not affect the rights to the licence or the company’s rights to be heard and to defend itself, at all the stages that a proper investigation or regulatory proceeding must entail.

PREDETERMINATION

Lawrence went on: “We were especially comforted by his finding that the alleged threat to national security was not apparent, or in existence at this time, and he felt that on the evidence the agencies could only proceed to look at issues pertaining to the company’s operations and licence.

“He clarified for our benefit that our apprehension that there was a predetermination that the company had breached it licence was unfounded. He found that the process, properly understood from the letters, was one in which the agencies would investigate whether or not there was a breach and he reminded us that the law guarantees us a right to be heard even in that process.”

livern.barrett@gleanerjm.com