Government brags about spectrum sharing deal, Digicel refuses to confirm

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By Robert A. Emmanuel

After months of public spats, litigation and finger-pointing by politicians, the Gaston Browne administration has announced reaching a settlement with Digicel over the redistribution of the 850-megahertz band and 900-megahertz spectrum, while the solution to the row between Flow and the government remains uncertain.

Yesterday, the government announced that Digicel will begin transferring two megahertz of the 850 band and nine megahertz of the 900 band.

Information Minister Melford Nicholas, while detailing the agreement at the post-Cabinet press briefing on Thursday, said the government will renew the company’s operating licenses when it expires in 2021 as part of the deal.

“Cabinet did authorize me yesterday [Wednesday] to execute a Memorandum of Understanding (MOU) between the government and Digicel, where two tracks of low frequency spectrum will be made available to APUA.

“In addition to that, the government has undertaken to grant Digicel the assurance that in 2021 when its licenses would come to expiration that there will be a very real possibility that they will be granted a fresh license.”

Nicholas believed that “good sense prevailed” in this matter, explaining how the deal was reached.

“The force of having to go before the court and the long, tedious process that would entail, brought all parties to the reality that something must be done.

“I believe even on Monday when a senior principal from Digicel met with my team from telecoms, Public Utilities Minister Sir Robin Yearwood and the Prime Minister, Minister Yearwood had insisted that they would still need to have a share of the 850 megahertz.

“The senior officials from Digicel went back, took a look, and I invited them to have another visit with the Prime Minister and they came to that agreement,” the Information Minister said.

He added that, over the next few days, lawyers from both parties will work to finalize the MOU in time to file a notice to the court of the final settlement.

OBSERVER media reached out to the Digicel Antigua and Barbuda CEO, Dwayne Tulloch, for a comment but he declined.

Since May 2019, the government and Irish-based Digicel have engaged in a legal fight over demands to share the digital spectrum allocation with the state-owned Antigua Public Utilities Authority (APUA).

During that month, Digicel filed its motion in the courts to prevent the government from redistributing the 850 MHz spectrum and giving it to APUA.

At the time, Digicel said it was forced into this legal challenge to protect its customers and services from the administration’s anti-competitive and protectionist decision on 8th May.

“The government’s confiscation of the spectrum to the sole benefit of APUA and the detriment of Digicel’s customers would result in half of Digicel’s customer base experiencing significant mobile service disruption – not to mention the broader negative impact on emergency services and other essential services like point of sale terminals and home security systems – for a period of at least 18 months, since that is the time it would take Digicel to completely rebuild its network at a cost of at least US$25 million,” the company said at the time.

Prime Minister Gaston Browne was quick to respond to Digicel, with a scathing statement aimed at Digicel and Flow – which was also asked to share some of its spectrum with APUA – accusing the two telecommunications giants of being greedy.

“No court can tell us to whom we can license our spectrum, our national asset, so we are allowing for due process, we are allowing for a period of negotiation,” Browne said then.

Following that, the rhetoric between the two parties only got worse, with Digicel accusing the government of “muddying the waters” on the issue, responding to the Public Utilities Minister’s Facebook post that pointed the blame at a former telecommunications officer in the Telecommunications Ministry – who subsequently took up employment with Digicel – over the original assignment of a separate spectrum range seven years ago.

The post highlighted a 27th September 2012 letter by former APUA Chairman Clarvis Joseph where he lambasted Clement Samuel—the then telecoms officer – over a request from APUA to re-allocate some of the spectrum which had recently been given to Digicel and not APUA.

Joseph asserted that because APUA was state owned, its commercial interest must be put before its competitors by the regulator; that it had hundreds of employees to pay; that the profits from APUA’s telecoms unit are needed to subsidize its unprofitable water and electricity production; and that the regulator should protect the interest of APUA because it is a state-owned entity.

Sir Robin sought to use the letter as proof that APUA has historically been at a disadvantage.

Digicel, in response, called Sir Robin’s post “grossly distorted”.

OBSERVER media then obtained another letter dated 12thSeptember 2012, where Samuel gave an explanation to APUA’s general, Esworth Martin, about why a request by APUA to subdivide and reallocate a class of 700-megahertz spectrum called Band 12 was denied.

The officer explained that while the re-allocation of Band 12 so that APUA could be allotted portions of the band for its usage was technically possible, Digicel had already applied for and been granted use of Band 12.

He noted that to subdivide Band 12 among operators would drastically reduce the speed and quality of 4G service which each operator could provide to its customers.

He added that Digicel was already rolling out equipment and services using Band 12 and was advanced in doing so.

Further, he informed the APUA General Manager that APUA was aware of alternatives to using Band 12, such as using frequency Bands 13 or frequency Band 4. These, he noted, were widely used in the US and Canada.

Samuel concluded that to pull back on the licence granted to Digicel to use Band 12 and restrict that company’s usage of it would likely delay the expansion of the company’s service offering and cause it to incur unforeseen costs.

If the war of words could not become worse, Prime Minister Browne threw a grenade into the conversation on June 15th where, on his private radio station, he claimed that the government would be willing to buy out one of the telecoms companies to secure APUA’s spot in the market.

“Digicel and Flow can jump high, they can jump low, but they have to share [the spectrum],” Browne said. “It is either share or leave and we make no apologies about it [because the spectrum] is our asset. It does not belong to any court either.”

The Prime Minister said he had “already sent a message to the owner of Digicel to tell him that APUA is willing to buy them, so let’s talk, if that is the way we need to resolve this”.

He continued: “If one has to go, it will not be APUA, so they better understand that. We must recognise that the telecoms space is somewhat overcrowded because the market is so small. So it really justifies a monopoly or, at best, two players. If one has to leave, it won’t be APUA. So between Digicel and Flow, they need to make up their minds.”

Digicel later denied it had received any form of offer from the Antigua and Barbuda government.

Following this, the government sought to push through a Telecommunications Bill, giving additional protection to APUA.

Dominican Senior Counsel Anthony Astaphan, who is among lawyers representing the Antigua government in the court battle, stated that he agreed with the government’s approach to “provide some level of protection for the only telecommunication company in the Eastern Caribbean not owned by foreign interests.”

“I agree with the position that there should be some protection because I have noticed coming from the Privy Council (Antigua and Barbuda’s final court) that … they accept that Parliament or the government may make decisions to ensure that private enterprises … or public enterprises that are locally owned are not wiped out by international competition, ” he said.

Astaphan noted, at the time, that the proposed legislation would allow for the authorities to make an order that “spectrum already allocated to a provider should be distributed or shared with somebody else to create an even playing field in the public interest, subject only to the condition of compensation…” The government and Digicel were due to return to court on September 23rd.

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