Phone company's licence silent on exclusiveness
By Gitanjali Singh
December 19, 1999
The phone company does not have an iron-clad monopoly but rather its monopoly licence is weaker than that of Cable and Wireless Jamaica Ltd which recently agreed with the Jamaican government to break its monopoly.
So wrote telecommunications expert, Joseph Tyndall, in a letter which appeared in Stabroek News. Tyndall said that Cabinet Secretary, Dr Roger Luncheon's statement in this newspaper that the Guyana Telephone and Telegraph Company Ltd's (GT&T) monopoly was "iron-clad" was ill-advised or the government was being misled by its advisers. Dr Luncheon said the government was still looking at the licence and was very aware of the views being expressed about the licence of GT&T in the media in recent times.
Tyndall, a former chairman of the Public Utilities Commission (PUC) under the PNC administration, said GT&T did not have a monopoly to run telecommunications systems in Guyana, as its licence is silent on exclusiveness.
The minister, under the Telecommunications Act, could grant a telecommunications licence for a company to run a clearly defined telecommunications system and to use the system to provide specified telecommunications services. This licence may be exclusive or non-exclusive.
"The obvious fact is that GT&T's licence does not grant it a monopoly for the running of its telecommunications network [and] it follows, therefore, that the Government of Guyana is free to licence a competing network...," Tyndall asserted. He noted that this by itself might not be sufficient to introduce competition in network services but could be done.
The telecommunications commentator also pointed out that GT&T's licence did not cover all telecommunications services. He said GT&T's licence permitted it to provide two types of services: the conveyance of messages by its authorised telecommunications system (network services) and the provision of certain listed services. (Conveyance for the purpose of network services, is defined in terms of transmission, including switching for the purpose of transmission and does not include reception, except as a stage in the transmission process.) GT&T's authorised system includes public call boxes and network testing and connecting equipment and Tyndall said GT&T was not authorised to use any other equipment for commercial purposes.
"GT&T is not authorised to provide any services that require the use of equipment additional to its network facilities, with the exception of listed services," said Tyndall, noting that to do so, it would have to obtain a separate licence.
Tyndall said audio-text and internet businesses were not part of the authorised business of GT&T and added that GT&T was not authorised to run special equipment required to provide such services either or to connect such equipment to its authorised telecommunications system.
He also noted that in 1990, when the Telecommunications Act was passed, the internet had not been developed into a commercially feasible operation and was not included as a service for GT&T. And the special equipment required for providing internet service is not covered by the licence granted to GT&T.
"In keeping with its licence, GT&T's role in the internet business should be confined to the provision of connection services to local providers of internet service. GT&T's licence does not allow it to compete with the local service providers for internet business," Tyndall said. Nor did its voice and data transmission extend to internet services.
And GT&T's monopoly in international voice and data services, Tyndall said, was strictly limited to the transmission function and did not extend to the reception of such communications.
"This leaves room for licences to be granted to other persons for the reception of international voice and data communications for delivery to local customers. The licensee would be free to install receiving facilities and GT&T has an obligation, under its licence, to provide the necessary connection to enable the service providers to reach their local customers...," Tyndall asserted.
Additionally, Tyndall argued that GT&T was not authorised to use its own equipment to provide cellular or other land mobile services. Tyndall said the company's licence authorises it to provide cellular services and to run a cellular network system but prohibits it from using its cellular network to provide cellular services.
"It can lease its cellular equipment to other operators to provide cellular services, but with the present licence arrangements, the only way it can legally provide cellular services is by leasing facilities owned by other local cellular operators," Tyndall said. He said this might be rather silly but it was law and until it was changed, GT&T was obliged to obey it. The same restriction applies to other land mobile telecommunications services such as paging.
GT&T's licence, Tyndall explained, to a large extent was a copy of the corresponding sections of the licence granted to British Telecoms (BT) in 1984 when the UK government deliberately structured the licence so as to prevent BT from operating cellular or other land mobile telecommunications services, including paging, under its telecommunications licence. In adopting BT's licence those responsible for the preparation of GT&T's licence, deleted the provision which prevented BT from running a mobile telephone system, but did not delete the provision which prevented the telephone company from providing mobile services, Tyndall said.
"As it is, any affected person could take appropriate action to stop GT&T from using its authorised system to provide cellular services [or other mobile telephone service]..." Tyndall said. GT&T, he said, could set up a separate company to provide cellular services as BT did, which with effective regulation of inter-company transactions, would level the playing field for all cellular operators.
He concluded that contrary to popular belief, GT&T's monopoly was rather limited and certainly not "iron clad".
"It follows, therefore, that neither GT&T nor ATN [Atlantic Tele Network, its parent company] can have any legitimate grounds for complaints about the present monopoly arrangements. Dr Luncheon's iron-clad [argument] is riddled with holes. He has thrown in the towel rather prematurely in abandonment of the interests of the Guyanese people. The Guyana Government is in a stronger position vis-a-vis GT&T than the Jamaica Government vis-a-vis Cable and Wireless," Tyndall asserted.
He disagreed with Dr Luncheon that the government of Jamaica was in a stronger legal position in its confrontation with Cable and Wireless.
"Unlike Jamaica, the Government of Guyana has both a strong legal case as well as a powerful 'moral' case, in terms of national interest and world opinion. The case of the Government of Guyana is further strengthened by the many flagrant licence breaches committed by GT&T," Tyndall said.
Citing the termination clauses in GT&T's licence, the contempt with which GT&T has treated the PUC and the government and noting that GT&T has managed to do almost everything Vitelco, a subsidiary of the original ATN Inc in the Virgin Island was prohibited from doing there, Tyndall said that it had lost ground in a claim for compensation for breaking the monopoly licence. "Dr Luncheon states that if the government breaks GT&T's monopoly, it would have to agree to a reasonable settlement. Dr Luncheon's pessimism is not justified. Any settlement would have to be balanced against GT&T's violations of its licence," said Tyndall, citing the audio text service as one of the most flagrant breaches.
Tyndall said that the first step to remove GT&T's monopoly was to put the telephone company on notice that it would be required to operate strictly within the authority of its licence and that licences would be issued to other persons to provide services in areas for which GT&T did not have a monopoly. "The absence of any provision in GT&T's licence as to whether its authorisation to run its telecommunications network is exclusive or non-exclusive, and as to the duration of the authorisation, is a big hole in GT&T's monopoly," Tyndall said. He said that this notification to GT&T would be enough to bring ATN to the negotiating table. However, he advised that the government proceed on the basis of an advisory document, prepared by an expert, defining specific detail and with necessary explanations, the nature and scope of GT&T's monopoly.
"There is still hope for the beleaguered customers," says Tyndall.
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