Digicel Responds To Cole Simons’ Comments

June 12, 2012

Digicel released a statement saying they wish to “clarify some matters addressed in a recent statement issued by the Shadow Minister of Telecommunications, Mr. Cole Simons, concerning Government’s approval of the Digicel/Transact International Long Distance service in September of last year.”

The Government and Digicel are presently embroiled in a dispute over Digicel’s ability to provide International Long Distance services. This dispute involves other local telecommunications providers and is currently before the Courts.

A statement from Digicel said they are “most appreciative of the interest shown in this matter by Mr. Simons and by the Opposition. However, some of the statements made by Mr. Simons appear to be based on fundamental misapprehensions that Digicel believes ought to be set straight.

“Mr. Simons stated that a letter provided to Digicel by the Department of Telecommunications on 20 October 2011 “which authorised the purchase of Transact by Digicel Limited by then Minister Walter Roban may not have been authorized”.

“Mr. Simons went on to state that “the October 20, 2011 letter was ultra vires, in that it was not authorised in accordance with the Telecommunications Act and Government’s General Orders”. Neither statement is actually correct, either in fact or in law. To see why, the context of this letter must be understood.

“The fact is that this letter of 20 October 2011 was merely the culmination of a lengthy process, which took place between July and October 2011, whereby Digicel’s purchase of Transact for the purpose of providing long distance service was expressly and unambiguously approved by Government.

“Indeed, Digicel first wrote to the Government (through the Minister of Finance) as early as 4 July 2011 and clearly set out that it was seeking Government approval to purchase Transact for the purposes of providing long distance services. Under a section in its letter entitled “Business to be carried on”, Digicel expressly stated:

“The amalgamation will enable Digicel to carry international traffic to all customers and to provide fixed DSL services alongside existing mobile data customers”

“In explicitly setting out Digicel’s plans for Transact, this letter of 4 July includes a specific section entitled “Long Distance Telecommunications Services”, which also clearly sets out that Digicel wished to provide international long distance services through Transact and provided detail as to how Digicel intended to do so if Government approval was received for ILD.

“As such, it was abundantly clear from the very outset of Digicel’s interaction with Government what Digicel was seeking approval for. It could not have been any clearer. Government knew exactly what Digicel was seeking approval for and provided its approval on that basis.

“Contrary to what has been stated by Mr. Simons, Digicel’s approval was actually provided by Government at a recorded meeting involving Digicel and the Department of Telecommunications on 16 September 2011.

“The Government was represented at this recorded meeting by Ms. Patricia DeShields; Acting Director of Telecommunications, Mr. Michael Wells of the Department of Telecommunications and Mr. Melvin Douglas, Solicitor General and legal adviser to the Government of Bermuda.

“The Government approval of Digicel’s long distance services through Transact was expressly approved by those Government representatives at that meeting and with the benefit of legal advice provided by the Solicitor General. This letter of 20 October 2011 as referenced by Mr. Simons recorded the fact that approval has been granted at that recorded meeting of 16 September. As such, the letter simply confirmed what had already happened the previous month.

“Accordingly, Mr. Simon’s views that this letter was “ultra vires” and “not authorised in accordance with the Telecommunications Act and Government’s General Orders” are manifestly inaccurate.

“It could be suggested that the impression created by Mr. Simons’ statement is that some individual Civil Servant should be blamed and held accountable for improperly writing the letter of 20 October 2011 and that this letter alone has caused the present controversy. This is simply not the case.

“It should be noted that this letter was copied on its face to the Permanent Secretary of the Ministry of Environment, Planning and Infrastructure Strategy, Dr. Derrick Binns and to the Telecommunications Commission.

“So, in fact, the following Government Representatives that were involved in the four month process in which Digicel was expressly approved to provide long distance service included (at a minimum):

  • The Minister of Finance
  • Dr. Derrick Binns; Permanent Secretary of the Ministry of Environment, Planning and Infrastructure Strategy
  • Ms. Patricia DeShields; Acting Director of Telecommunications
  • Mr. Michael Wells; Department of Telecommunications
  • Mr. Hiram Edwards; Department of Telecommunications
  • Mr. Melvin Douglas; Solicitor General

“This approval of Digicel’s long distance services through Transact was no solo run on the part of some rogue or misguided member of the Department of Telecommunications. Any efforts to blame such an individual or create a scapegoat are without merit.

“Even if this was the case (and it is not), Government would in any event be responsible for and bound by decisions taken by its Civil Servants acting in the course of their employment. The question of ultra vires does not arise.

“Accordingly, Mr. Simons views that Digicel’s legal team ought to have sensed that “the letter granted by the Ministry, was not issued in accordance with Government’s General Orders, and the Telecommunications Act” does not withstand objective scrutiny.

“Digicel’s approval of its long distance services, although amply evidenced by the letter of 20 October 2011, was actually considerably more involved and substantive than the issuing of a single letter by an individual Civil Servant. It was a process that took place over several months and was only resiled on by Government once legal action was taken in respect of Digicel’s long distance service by Digicel’s competitors.

“Mr. Simons’ comments would tend to suggest that a critical letter written by the Government of Bermuda to a major international investor concerning a critical and financially significant Government approval should somehow be dismissed out of hand.

“His comments would suggest that such letters from the Bermudian Government are not worth the paper they are written on; this simply cannot be the case. Significant investors in Bermuda are entitled to expect that when Government grants approvals, it means what it says,” concluded the statement from Digicel.

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Comments (14)

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  1. Go Digicel! says:

    This whole thing is too funny! I don’t even care whether they’re in the right or not, I just love how Digicel keeps releasing a statement to counter anything that anybody says like a real SHOTTA. Next they’re gonna release a statement, then release a statement to address that statement.

    “We at Digicel would like to address a statement just released by the Digicel Group in response to Digicel’s claim that Dicigel is Digicel.”

  2. I gotta be me says:

    exactly what I was thinking! their legal bill must be HUGE!

  3. Amazed says:

    You have to ask yourself why is Digicel trying so hard to convince the public of its case when this matter is before the courts? “Me thinks they doth protest too much” LOL

    • just because says:

      thats because he know his case is lost and needs the public vote.

  4. allcloggedup says:

    Digicel are business savy and pulled a quick shot that the ‘sleepers’ didn’t pick up on until it was too late. Somebody has got to pay. I think Hiram took the biggest hit but it shouldn’t stop there. Wells should have known better. The SG was definately asleep at the wheel. Caines is right, that department is too critical to be run by common civil servants with no formal background in regulating Telecoms. Bean’s only solution should be to allow all industry players to take the gloves off and duke it out.

  5. pebblebeach says:

    Digicel, please take a chill pill and be quiet for a hot second….try being honest with the definition of VoIP OnLy and stop trying to pursuade us the paying public that what is being offered is within the conditions of your license when you and I know it simply is not…We know the ILD service your offering simply is not VoIP….

    You jumped the gun, now take a chill pill and get back in your lane…

    We do not wish to pay for your legal costs.

    I’m Just Saying…

  6. A Visitors Perspective says:

    Pebblebeach-

    How do you know that Digicell’s ILD service isn’t offered via VoIP?

    AVP

    • allcloggedup says:

      I agree with pebbles….Digicel know now what they knew then….Digicel ILD traffic CANNOT be routed via VOIP period. They are prohibited by law to route their ILD via TBI or LINK. Those are the rules for now. DOT should just admit that they only allowed Digicel to buy a VOIP carrier, this doesn’t mean that Digicel can now bend the rules and route mobile via VOIP. Think of it like this…..just because I purchase a HA Truck, but I don’t have a license to drive, then I can’t drive my own Truck!

      • A Visitors Perspective says:

        ACU-

        The letter from Michael Wells, Acting Director of Telecommunication to Digicel responds to the question, “Is it acceptable to offer all three services of ISP/Mobile and ILD (utilizing VOIP) to customers … using our Mobile License and Transact License” by stating “Yes, if you provide an Interconnection Agreement between yourself and Transact…” and goes on to remind Digicel that it “can offer ILD over VOIP only.”

        I don’t see anything that states that Digicel ILD traffic cannot be routed via VoIP period. In fact, the letter clearly states the opposite, provided an Interconnection Agreement is provided.

        Am I mis-reading the Acting Director’s letter?

        AVP

        PS- With regard to the truck analogy, if you a had letter from TCD stating the conditions under which you could drive the truck without a license, then I think your analogue would be closer to the Digicel situation.

        • allcloggedup says:

          Digicel don’t have clean hands, and the sleepers are to be held accountable including Binns. so you think it’s ok to break the law because the sleepers overlooked Digicel’s scheme? I think Digicel knew they were asking DOT is it okay to ignore the rules, and DOT didn’t pick up on it. That is clearly the case. Once the sleepers realized their error then they have every right to review and withdraw their ‘approval’ letter.

          • A Visitors Perspective says:

            ACU-

            It sounds like your argument consists of three parts: First, that the law is clear with regard to (and at odds with) Digicel’s request; second, staff and Acting Director Wells at the Department of Telecommunications overlooked the clarity of the law when issuing approval; and third, since it is clearly an error, Government can simply withdraw its approval letter whenever it wishes.

            As to first point, if the law were so unambiguous, then I’d have to guess that none of this would have happened in the first place. If the speed limit is clearly posted at 50 km/hr, then a request to drive at 70 km/hr will be turned down. But if the rule is just “Caution- Slow”, then 5, 10 and even 20 km/hr might be acceptable. I find it hard to believe that the law is so clear, yet the Department of Telecommunications ignored that clarity and granted approval.

            Second, the application process has, according to Digicell, been going on for at least July 2011, and has involved many people from the Department of Telecommunications, as well as the Solicitor General, the Permanent Secretary of the Ministry of Environment, Planning and Infrastructure Strategy and the Minister of Finance. It appears that very specific questions relating to their intent to offer ILD services have been raised by Digicel over the course of this process, beginning with the 4 July 2011 letter. The idea that so many people could blindly ignore the clarity of the law over so long a review period doesn’t seem possible, particularly when the specific issue was called to their attention at a number of points in the process.

            Finally, almost eight months have passed since the approval letter of 20 October 2011. If a mistake were made, or the “sleepers overlooked Digicel’s scheme”, the time to correct that would be much closer to the issuance date of the letter than now. Since there has been no change in the law between then and now, and Digicel has complied with the terms of the approval letter, it has every right to rely on the letter, and so make investments and other plans based on this clear approval. If not, then no business would make an investment in Bermuda, because the risk of an arbitrary reversal of a prior approval at any time would always hang over the head of investors.

            I’m not of counsel; I don’t know if you are. But my guess is that we are each making the arguments that will be made in Court, and it will be up to the Court to reach a fair decision. I believe that Digicel’s application is actually favorable to consumers, and so hope that the Court will find in their favor.

            I also believe that the public bickering and grandstanding by Digicel, Mr. Simons, Minister Bean and others is highly inappropriate; it would have been far better for this to have been worked out behind closed doors than to have been splayed across the media. To that extent, I believe that no one has perfectly clean hands in this matter.

            AVP

      • LMAWTFO says:

        Spot on.

  7. Legal Eagle says:

    Telecommunication costs in BDA are currently among the most expensive in the world! Only completion will bring those costs down!!! It is understandable that a profit motive has Digicel’s competitors objecting, however one must ask just whoever or whatever motive is behind the Government to block competition and thereby reduce
    costs– in the best interest of the BDN PEOPLE and businesses??? Or has this Government ignored the best interest of the people for so long now, they don’t even consider it any more??

  8. monique says:

    worst phone company ever di company is so f%$k up i cant wait for lime to kick dem ass, can you imagin calling custumer care for over an hour and cant get a responce so f%$king lame cant wait to get a lime phone………..