Govt files lawsuit, criminal charges against Digicel over illegal use of spectrum

…company causing harmful interference to GTT, E-Networks – AG

Digicel (Guyana) is being sued by the Government of Guyana over its unauthorised use of the 700 MHz and 1800 MHz telecommunications spectrums. Legal proceedings were instituted by Attorney General Anil Nandlall, SC, and by the Telecommunications Agency, and filed at the Demerara High Court.

Nandlall is appearing on behalf of the Government, and Attorneys-at-law Devinda Kissoon and Natasha Vieira are representing the Telecommunications Agency. They are seeking damages and exemplary damages in favour of the State in an amount not less than $200,000, arising from Digicel’s unlawful conduct.
The lawyers are also asking the court for an order disgorging all revenue and profits earned by Digicel arising out of its unlawful activity, and a corresponding order that an assessment hearing be held and evidence taken to determine the amount to be awarded to the State.
Further, they want the court to declare that Digicel was and is unlawfully using spectrum in the 700 MHz and 1800 MHz frequency band, and is otherwise in breach of Sections 26(1)(e), 28(1)(a), 30(1), 31(1) (f), 48(1) and (2)(a), 67(b) and (c) and 68(1) of the Telecommunications Act of 2016, and Sections 9(4)(b)(i) and 10 of the Telecommunications (Spectrum Management) Regulations of 2020.
A permanent injunction is also being sought against the company to restrain it from using the 700 MHz frequency band without first obtaining the frequency authorisations and permissions that are required by the Act and Regulations.

Another injunction is being sought to restrain Digicel from using, transmitting, or otherwise accessing the 1800 MHz spectrum other than that portion of that band that was lawfully assigned to it by way of a frequency authorisation dated October 5, 2020, without first obtaining authorisation.

Inconsistent with APT band plan
Nandlall has said that, in 2001, Cel Star Guyana Inc., later acquired by Digicel, was issued with a cellular licence which led to the telecommunications sector developing into a duopoly, with only Digicel and GTT launching successful mobile services and competing within the market.
Nandlall said the duopoly remains in effect, and it is important to note that the Telecommunication Agency has implemented a policy decision to adopt the Asia-Pacific Telecommunity (APT) band plan to segment the 700 MHz band to enable the most efficient use and orderly assignment of the spectrum.
The band plan divides the band into contiguous blocks of frequencies that are as large as possible, considering the need to avoid interference with services in other frequency bands, comprising two large blocks of 45MHz each, one for uplink transmission in the lower part and the other for downlink transmission in the upper part, with guard bands of 5 MHz and 3 MHz at their lower and upper edges.
Accordingly, Guyana’s adoption of the APT band plan resulted in the assignment of spectrum in multiples of 5, starting from 703-748 MHz (uplink) and 758-803 MHz (downlink).

On November 5, 2020, and November 6, 2020, as part of the Telecommunication Agency’s frequency monitoring exercises, it was discovered that Digicel was unlawfully using the 700 MHz band to transmit between the frequencies of 770 MHz and 785 MHz at its Waterloo Street and Kitty, Georgetown towers.
Despite the adoption of this band plan, a fact that is known, or ought to have been known, by all telecommunications providers, Digicel proceeded to use the 700 MHz band in a manner that is inconsistent with Guyana’s adopted APT band plan, impairing the efficient usage of the spectrum, and denying the other carriers the opportunity to lawfully use their assigned spectrum within this frequency.
“Digicel’s unlawful use of spectrum encompasses approximately 717 to 732 MHz (uplink), and 770 to 787 MHz (downlink), which prevents the use of the first 15 MHz in the band (703-718 MHz), since the overlapping use causes severe interference,” the Attorney General pointed out.
As such, Nandlall disclosed, on November 23, 2020, Digicel was sent a cease-and-desist letter to cease the unauthorised use of the spectrum. Nandlall said that in response, instead of complying, Digicel, in wanton disregard of the laws of Guyana, demanded on December 2, 2020 that the letter be rescinded, stating that the unlawful use of spectrum was done in the “best interests of its customers.”
According to the lawyers, Digicel acknowledged the requirement of authorisation and the discretion of the Prime Minister by stating that “it remains Digicel’s desire to acquire the use of the spectrum on the basis of an authorisation issued by the Telecommunications Agency, which we appreciate has full and lawful control of matters related to spectrum, among others.”

Significant interference
The Government, on November 4, 2021, granted the following amendment to GTT’s frequency authorisation: 763-773 Tx/MHz 708-718 Rx/MHz. Nandlall added that both E-Networks and GTT accepted their assignments without objection. But Digicel, on August 16, 2021, filed judicial review proceedings against the Prime Minister to quash the aforesaid decision, in a veiled attempt to impel the Court and the Minister to endorse its unlawful act, being the unauthorized and previously undisclosed use of the 700 MHz spectrum, Nandlall submitted.

Digicel also commenced proceedings against the Telecommunications Agency, containing claims for similar reliefs against the parties as those against the Minister, as well as seeking to quash the cease-and-desist letter sent on September 23, 2021.
On September 9, 2021, the Chief Executive Officer of GTT wrote the Prime Minister stating that a portion of its spectrum was being used by another party in a manner that was hampering its ability to complete its preparations to transition. Several days later, E-Networks filed a similar complaint with the Telecommunications Agency, asserting that it was experiencing significant interference on its assigned spectrum in the 700 MHz bands.
In a subsequent letter, GTT said it needed to use the spectrum assigned to it, failing which it would suffer substantial losses and costs. Nandlall and lawyers for the Telecommunications Agency submit that Digicel has adopted a similarly abusive stance in its use of the 1800 MHz spectrum, attempting to stymie its assignment, despite not paying spectrum fees for use of either spectrum.
Considering this, the lawyers argued, “Digicel’s unlawful use of spectrum is preventing E-Networks and GTT from deploying of services to tens of thousands of Guyanese.
Digicel’s operations will remain unaffected if required to cease its illegal use. The public interest is harmed by [its] continuing illegal acts.”

Owes $2B in licence fees
Digicel, despite being required to pay one per cent of its gross revenue as a licence fee for its cellular licence, has never paid the Government the imposed fee, currently estimated to be more than $2 billion, the Attorney General disclosed.
Even though the company was recently invoiced for a portion of the fees, Nandlall said, the money remains outstanding.
To this end, he argues that Digicel is disrupting the Telecommunications Agency and the Government’s efforts to liberalise the sector, warranting urgent and immediate court intervention.
“It is evident that Digicel has taken an abusive opposing stance to liberalisation, seemingly to impede competition and restrict the other operators from operating in their legally assigned spectrum. Digicel has continued to utilise the 700 MHz spectrum – a service it activated post-liberalisation – despite numerous cease-and-desist letters, and it continues to defy the laws of Guyana…”
Even more egregious, Nandlall noted, is the fact that Digicel continues to use the spectrum in a manner that offends Guyana’s adopted APT band plan, and has not paid any spectrum fees for its unauthorised use of spectrum, illegally profiting thereby.
He said that Digicel is attempting to “unilaterally dictate” Government policy and usurp the decision-making process generally as it relates to the assignment of spectrum.
Moreover, Nandlall said that Digicel is currently offering services to the public and profiting, thereby being unjustly enriched. The Attorney General added that the injunctions sought are urgently warranted because the unauthorised use of spectrum by Digicel is causing harmful interference to the business of GTT, E-Networks, and the telecommunications sector, with damages being an inadequate remedy.
Also, he said the State is being deprived of tax revenue. In the circumstances, he pointed out that Digicel has assets to satisfy the sum being sought for damages.
“The company owns substantial property in Guyana valued in excess of five billion US dollars, and [Digicel] has assets which exceed US$1,000,000 by way of real estate holdings and account receivables to satisfy this undertaking.”
Chief Executive Officer (CEO) of Digicel (Guyana), Gregory Dean, has been summoned to appear at the Georgetown Magistrates’ Courts on Friday, October 22, to answer to over a dozen charges which allege that the company engaged in the unauthorised use of various telecommunications spectrums.
The charges were instituted against Dean by Prime Minister Mark Phillips, who has responsibility for Guyana’s telecommunications sector, pursuant to the Telecommunications Act of 2016. It is alleged that on a number of occasions, Digicel illegally used the 700 MHz and 1800 MHz spectrums.
Some of the offences date back to 2020.
In court documents seen by this publication, the Prime Minister contends that the unauthorised use of the spectrums is in violation of Regulations 9(4)(b) and 11 of the Telecommunications (Spectrum Management) Regulations 2020, No. 5 of 2020. (Feona Morrison)