The Telecommunications Authority of TT (TATT) will have another opportunity to advance its complaint against the Telecommunications Services of TT (TSTT) and its subsidiary, Amplia, over their failure to pay $26.4 million to a national fund to develop internet connectivity in rural communities.
On Tuesday, Appeal Court judges Justices Mira Dean-Armour and Vasheist Kokaram referred the lawsuit back to the judge who, in February, struck out the lawsuit on the basis the court had no jurisdiction to hear it.
However, in their ruling, the Appeal Court judges said Justice Carol Gobin was wrong to decline jurisdiction when she upheld TSTT’s preliminary argument that TATT could not bring litigation to recover the debt because it was not provided for in the legislation.
In March 2021, TATT filed a claim against TSTT and Amplia seeking to recover their $26,467,445 in unpaid contributions to the Universal Service Fund (USF).
TSTT claimed that under the Telecommunications Act, which established TATT and the USF, the authority could only seek to enforce compliance by either advising the minister to suspend or revoke its concession or by initiating criminal proceedings.
In her decision, Gobin held that the act did not contemplate TATT’s recourse to the court to recover a debt as part of the concessionaire agreement but provided adequate measures to compel them to comply with the requirement to make contributions. These measures included pursuing criminal proceedings against the offending party and suspension and termination of concessions, which, in her view, were adequate substitutes for bringing an action to recover a debt.
However, The Appeal Court held while the act did create rights and remedies, the measures it provided did not provide an adequate substitute for TATT to bring a claim for debt recovery and that it still had access to the court to do so although it was not specifically stated in the statute.
While acknowledging the measures created in the act to pursue criminal penalties or make a recommendation to the minister to suspend or terminate, the judges held
“In our judgment, it cannot be disputed that the liability of the concessionaire to make contributions to the USF did not exist at common law… Where an act of Parliament creates a duty for the payment of money, an action will lie for its recovery and in the case of a liquidated sum, the appropriate action is an action for debt. This continues to be the rule even where the statute is silent as to the method of recovery,” they said.
They also added, “In our view, the fulcrum of this debate lies in the word ‘remedy’ and its meaning. The possibility of criminal proceedings is punitive and not remedial. Similarly, the cancellation of the concession transcends the punitive, bringing the role of the concessionaire to an end.
“Like the termination of any relationship, it is both stark and severe. It is not, however, remedial. It does not provide a remedy. Getting rid of the recalcitrant concessionaire is not a measure which assists the USF and is ineffective as a remedy for recovering outstanding contributions.”
At the appeal, heard virtually in April, TATT’s lead attorney, Deborah Peake, SC, acknowledged the options open to the authority as provided for in the act, however, she said to take either route would cause significant hardship to citizens based on TSTT’s substantial market share in the local telecommunication industry.
She said 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.
In opposing the appeal, TSTT’s lead attorney, Martin Daly, SC. maintained that Parliament would not have included the remedies in the legislation if it intended TATT could bring an action for debt recovery.
“We should not interfere with what Parliament intended,” Daly said at the hearing of the appeal.
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.
Daly said TSTT was open to discussions and maintained 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.
In setting aside Gobin’s orders, the Appeal Court sent TATT’s claim back to her for further “management and adjudication.”
TATT was also represented by Ravi Heffes-Doon and Rajesh Ramoutar, while Christopher Sieuchand and Sonnel David-Longe appeared with Daly for TSTT and Amplia.