Justice B.S. Roy on Friday denied an application by GT&T for a stay pending appeal of a historic ruling awarding damages to a former customer and declaring its monopoly illegal however the court granted a two-week interim reprieve for GT&T to challenge the decision not to grant a stay before the Court of Appeal.
On July 19, 2012, Justice Rishi Persaud had directed GT&T to pay entrepreneur James Samuels $1,000,000 in damages after his internet service was terminated over his use of Voice Over Internet Protocol. In the course of his decision Justice Persaud had also declared the monopoly held by the phone company was illegal. GT&T then moved to the Full Court to seek a stay of Justice Persaud’s ruling pending an appeal of it. This is what was denied on Friday.
On Saturday GT&T said in a press release that Justice Roy heard arguments from counsel for James Samuels and GT&T regarding procedural issues stemming from GT&T’s appeal of Justice Persaud’s decision arising from Samuels’ contract dispute with GT&T. The phone company said that Justice Roy rejected GT&T’s request for a stay pending appeal, but granted a further interim stay for two weeks to permit GT&T to appeal his decision to the Full Bench of the Court of Appeals hearing the Samuels matter.
The release said that GT&T intends to file an appeal of Justice Roy’s decision early this week and that Justice Persaud’s decision in the Samuels case will continue to be stayed for two weeks while that process unfolds.
“As a result, there has been no change at this time in the status quo regarding this matter, which is that the Samuels decision from last year has been and remains stayed. Further, nothing that occurred during (Friday’s) hearing would permit any telecommunications operator in Guyana to begin providing service without a licence. Previous efforts by another operator to provide international calling services without a license, and in violation of PUC regulations, resulted in an injunction which remains in place today. GT&T remains confident that the Guyana courts will issue a correct ruling on the matter of its licence rights, which were not directly involved in Mr. Samuels’ contract dispute with GT&T”, the phone company said.
On Friday, counsel for Samuels had issued a press release notifying of the court’s decision. It quoted Samuels as saying about the latest court move by GT&T: “It is unfortunate that GT&T continues to expend time and resources on a position that I and the courts believe to be clearly without merit. Guyana’s telecommunications sector must be immediately liberalized and I will continue to fight for the good of my fellow citizens.”
Justice Persaud had ruled in July last year that the use of an internet-based calling service by Samuels was not identified as a telecommunications service under the law and he also upheld the contention that GT&T’s telecommunications service monopoly is unlawful and in breach of the Civil Law of Guyana Act.
The ruling awarded $850,000 in damages to Samuels, who subscribed to a Voice Over Internet Protocol (VOIP) Service provided by a US company, after his GT&T internet service was installed. The VOIP service enables a subscriber to send and receive voice communication electronically over the internet by use of a personal computer.
In summarising the case, Justice Persaud noted that Samuels had written to GT&T and informed of his intention to use VOIP services. The company replied and advised that he was prohibited from utilising the DSL service for international telephone activities or for international telephony bypass, under the terms of his contract. Samuels disregarded GT&T’s advice and proceeded to use GT&T’s DSL service for VOIP activities, leading the company to block his internet access and disrupt the service to his residence. It was the company’s position that the disruption was justified, since Samuels was unlawfully operating “an unlicensed telecommunication service” in contravention of the Telecommunications Act and the company’s contract and licence with the government.
“Having carefully considered the evidence led at the trial and the respective submissions of the parties I am unable to find that the subscription to and activation of VOIP by the plaintiff constituted a telecommunication service within the Telecom-munication Act,” Persaud wrote in his decision. “I find that that the plaintiff was not in breach of the DSL Service Agreement with [GT&T] and that the unilateral termination of the Plaintiff’s DSL Service by [GT&T] was whimsical and unlawful,” he added.
In addition to damages, Samuels was granted a declaration by the court that there was a breach of contract; an injunction restraining GT&T from interfering with his use of the DSL service for VOIP activities, as an accessory to internet service available to users in Guyana and around the world; and a mandatory injunction directing GT&T to cease interfering with his DSL service for the purpose other than those for which it is lawfully authorised.
Samuels also sought $1 million in damages for breach of contract, which was awarded less $150,000 for court costs. He initially sought special damages in excess of $10 million, but this was withdrawn.
In the ruling, Justice Persaud also noted that Samuels had contended that exclusive licence and monopoly conferred on GT&T to provide telecommunication services in Guyana was unlawful and in breach of the Civil Law of Guyana Act. He noted that GT&T contended that the restriction of monopolies was not relevant to the case and that the Telecommunications Act of 1990 overrode the Civil Law Act.
Justice Persaud, however, said the court was bound by the decision of the Guyana Court of Appeal in Vieira Communications Ltd v. Attorney General of Guyana and another (2009) WIR 279, where it was found that the grant of licences of permission for broadcasting to government controlled radio stations only has created an unlawful monopoly in breach of the Civil Law Act. He noted that the court also demonstrated that apart from the provisions of the Civil Law Act, the existence of monopolies can infringe constitutionally guaranteed rights. “I accordingly uphold the plaintiff’s submission on this issue and find that the licence granting an exclusive monopoly to [GT&T] to provide telecommunications service or to control or regulate voice and data transmission on the internet is unlawful and void,” he wrote, adding that by parity of reasoning, the monopoly of radio stations extend to GT&T’s telecommunication service.
Samuels is being represented by attorneys Parmanand Mohanlal and Dave Kissoon while GT&T is being represented by Senior Counsel Miles Fitzpatrick and attorney Timothy Jonas.
