Caricel could be heading back to court
EMBATTLED mobile phone provider Symbiote is now contemplating whether it should seek judicial review in relation to notices of investigation issued by the Government in its move to take steps to revoke the company’s domestic mobile carrier and spectrum licences.
Symbiote, which trades as Caricel, was issued with the domestic mobile spectrum licence last September, against the advice of Contractor General Dirk Harrison, as well as a domestic mobile carrier licence in May. The Supreme Court on Tuesday denied the company’s application to block the Government from taking steps to revoke the licences. Symbiote’s main contention in the case is that the notices of investigation issued by the Spectrum Management Authority (SMA) and the Office of Utilities Regulation (OUR) was outside the scope of the Telecommunications Act, which Symbiote is said to have breached. The notices were carried out under sections of the law, which deal with investigative process that could lead to the suspension or revocation of a telecoms or spectrum licence.
Attorney representing Symbiote, Douglas Leys told the
Jamaica Observer on Wednesday that the notices of investigation issued by the SMA and the OUR were “bad”.
“I have recommended that they really pursue an appeal; they (the notices) were not issued in accordance with the statutory requirement. They say they were bad because of error, I’m saying whatever the circumstance, they should be withdrawn, or the court should use its power to squash them”.
Justice Leighton Pusey, in his judgement on Tuesday, dismissed what he concluded was an erroneous reference to a section of the Telecommunications Act in the letters from the OUR and the SMA to Symbiote about the investigation, as “harmless or inconsequential”, stating that, “this is not an error which would affect the applicants’ rights and would need to be squashed by the court. It is not the type of error which is substantial enough for leave of judicial review to be granted”.
He said the errors could have been clarified by Symbiote’s attorneys and “may have saved all parties (and the Court) a great deal of time. Symbiote contended in its claim that the notice did not specify the specific breach of its licence, nor make provision for the company to take remedial action.
According to the court, the SMA has already indicated that the reference to the subsection of the Act under which the SMA would have had to outline the specific breaches, was an error. The attorney general has also argued that the SMA had, in fact, extended courtesy to Symbiote when the agency communicated that it was about to investigate, as such notice was not required by the provision under which the investigation was being launched.
Meanwhile, Leys argued that as long as the notices remain in the public domain, there is a presumption of unlawfulness and the company will continue to suffer loss and damage.
“For instance, no self-respecting investor would be dealing with a company where such notices are out there that they breach their licence. So we need some further judicial determination on that to give everybody, the company, the certainty which everybody requires,” he said.
“The notice is predicated on events/and or conduct attributable to the applicant, which allegedly occurred subsequent to the grant of the licence, which actions are said to constitute a threat to national security,” Symbiote said in its claim, further pointing out that these matters fall under the Ministry of National Security, and that the SMA does not have the technical competence to properly investigate and determine threats to national security.
Justice Leighton noted that there is no evidence that the minister of technology will accept the recommendations of the SMA and the OUR coming out of their investigation: “On the contrary, there is evidence that he did not accept the recommendation of another state agency, namely the OCG, in the granting of one of the original licences”.