Barbara Gayle, Staff Reporter

The Office of Utilities Regulation (OUR) and Cable and Wireless (C&W) Jamaica won a major victory yesterday when the Court of Appeal ruled that the Judicial Review Court was wrong when it held that the OUR had no authority to set rates for the mobile (cellular) market.

The Judicial Review Court's ruling in December 2003 had resulted in Cable and Wireless having to pay out $164 million to Mossel (Jamaica Ltd.) trading as Digicel and $4.4 million to Centennial Jamaica Ltd., trading as Miphone.

Attorneys-at-law from the law firm Myers, Fletcher and Gordon who represented C&W told The Gleaner yesterday that based on the Court of Appeal's ruling C&W "will shortly be demanding repayment of the monies".

In April 2002, the Minister of Industry, Commerce and Technology issued a directive which prohibited the OUR from intervening in the mobile market.

Unanimous decision

The Court of Appeal handed down a unanimous decision that the direction was unlawful.

The direction stated: "The OUR is not to intervene in the mobile (cellular market by setting rates, tariffs or price caps on the interconnection or retail charges made by any mobile competitor."

The OUR did not follow the ministerial direction and on May 22, 2002 issued a determination interconnect pricing which included fixed to mobile termination rates for domestic calls and rates for incoming international calls.

Mobile service providers Digicel and Miphone requested a reconsideration of the OUR's determination notice.

Digicel applied to the Supreme Court in July 2002 for an order to prohibit the OUR from effecting its decision.

The OUR filed a motion in October 30, 2002 seeking a declaration that the minister's direction was unlawful, void and of no effect and the Minister and the Attorney-General were the respondents.

Cable and Wireless was the first affected party and Centennial as the second party affected were added to Digicel's suit.

Justice Mahadev Dukharan heard the matter in the Judicial Review Court and ruled against the OUR in December 2003.

The OUR appealed and the Court of Appeal comprising President, Justice Paul Harrison, Justice Howard Cooke and Justice Zaila McCalla heard the appeal and ruled in favour of the OUR.

"In the instant case, the minister not only misdirected himself as to his powers under the act, but also by the nature of the ministerial direction to the OUR sought to pursue an objective other than that for which the power to make the decision was conferred," the court held. The court found that the direction was specifically to restrain the OUR from performing its statutory regulatory powers. The court said it was for the sole purpose of facilitating competition and investment only and exclusively for the new mobile carriers in Jamaica without considering the public interest. The court said the direction was flawed for an unlawful purpose and therefore illegal. Legal costs were awarded in favour of OUR and Cable and Wireless.

barbara.gayle@gleanerjm.com