Notes on the Fair Trading Commission v Digicel Jamaica decision

The Judicial Committee of the Privy Council (the “Board”) recently rendered a high profile decision in Fair Trading Commission v Digicel (mirror) where it confirmed the far reaching power of the Fair Trading Commission to intervene in proposed mergers of telecommunications providers. The decision will likely give telecommunications providers further cause for pause in future bids to takeover or merge with competitor firms in the Commonwealth Caribbean.

Background

The Fair Trading Commission (the “FTC”) is empowered by the Fair Competition Act (the “FCA”) to serve as the competition authority responsible for regulating uncompetitive market practices in Jamaica.

The Board’s decision arose against the background of a 2011 merger of two of Jamaica’s three mobile voice and text providers, at the time: Digicel  and Claro. Following a complaint by the third competitor in the telecoms space – LIME (now, Flow) the FTC launched an investigation and concluded that the proposed merger would lessen competition and, ultimately, consumer choice would suffer. Importantly, the FTC also found that the benefits arising from the merger would not offset the anti-competitive effects.

Following the publication of its findings, the FTC launched  proceedings in the Jamaican Courts seeking an injunction to prevent the merger from going forward, the imposition of financial penalties and a declaration that the merger was anti-competitive.

The FTC, in approaching the courts, was, in effect, moving to enforce section 17 of the FCA which prohibit actors in a market from entering into an agreement with the effect of lessening competition.

Digicel and Claro took the position that their merger fell outside of the ambit of the FCA as they were telecoms operators and so, only the Telecommunications Act applied to their dealings. They also took the view that section 17 of the FCA did not specifically deal with mergers and so the FTC could not proceed on that basis.

The court dispute could, therefore, be reduced to three specific issues:

  1. Does the FTC have jurisdiction to intervene in the market for telecommunications services?
  2. Does section 17 of the FCA  apply to mergers at all?
  3. Does section 17 of the FCA apply to transactions approved by the Minister under section 17 of the Telecommunications Act?

On point 1, the High Court found (pdf) that the two regimes of the FCA and the Telecommunications act, acted in parallel. The Court of Appeal (pdf), in a decision authored by Harris JA, agreed. On point 2, the Court of Appeal disagreed with the High Court’s finding that section 17 of the FCA was not limited to anti-competitive conduct effected between independent entities and extended to those resulting in the elimination of a competitor in a market. On the third point, the Court of Appeal also reversed the High Court judge’s decision that section 17 of the FCA also applied, even though the relevant government minister had given his permission pursuant to section 17 of the Telecommunications Act.

Privy Council Decision

Before the Board, Digicel argued that they were governed, primarily by the ambit of the Telecommunications Act and not the Fair Competition Act and so, in the absence of a reference under section 5 of the Telecommunications Act, no jurisdiction resided in the FTC to review the decision of Digicel to merge with CLARO. They further argued that section 17 of the FCA did not, in any event, apply to mergers. Digicel also argued that the consent of the relevant government minister with authority for telecommunications was sufficient to prevent the intervention of the FTC.

The Board disagreed with Digicel and found favour with the arguments of the FTC on all three points.

Jurisdiction of the FTC
Firstly, it considered that although the Telecommunications Act was specific and the FCA was a general act, in order to prove that the specific act applied, Digicel would have to demonstrate incompatibility between both frameworks. In the view of the Board, although both acts had their own competition mechanisms, the two acts were not in fact at odds with each other but were, in fact, complementary. The Board also considered the reference mechanism in section 5 of the Telecommunications Act and deemed this confirmation of the fact that both acts operated in parallel to each other. The Board, on this basis, concluded that the jurisdiction of the FTC, pursuant to the FCA, did extend to the telecommunications market.

Applicability of section 17 of the Fair Competition Act

In respect of the argument that the scope of section 17 of the FCA did not apply to the merger between Digicel and Claro, the Board found that it did apply. The Board considered that section 17 of the FCA serves to forbid any agreements which contain provisions that have as their purpose the substantial lessening of competition, or have or are likely to have the effect of substantially lessening competition in a market.

Digicel and Claro made a novel argument: upon merging, both companies would become part of one enterprise and, therefore, could not be guilty of concerted conduct with itself. The Board took the view that section 17 of the FCA did not only apply to concerted conduct *after* the agreement was entered into between the parties. Rather, at the point when the agreement to merge is contemplated, so long as the effect falls within section 17, it is open to review by the FCA.

Importantly, also, the Board, inline with case law from the European Union, reasoned that section 17 of the FCA, despite not mentioning mergers expressly, did, in fact, apply to mergers.

 

Effect of Minister’s approval of a licence under the Telecommunications Act

Finally, Digicel argued that to the extent that section 17 of the Telecommunications Act was the only provision in either act that expressly dealt with mergers, once Digicel had complied with that provision, there was no scope for the FTC, which was operating under the ambit of the FCA to intervene in the merger. Unsurprisingly, given its reasoning on prior issues in its decision, the Board found that the minister’s approval under the Telecommunications Act did not operate in isolation and compliance with the FCA’s regime was also a necessary prerequisite to approval of its merger activities.

Final Thoughts

Following the decision, Digicel has already taken the view that the merger was not anti-competitive and so, it has no case to answer.

By confirming that the FCA operates in parallel with the Telecommunications Act, the Board’s decision necessarily means that, going forward, operators in the telecommunications space in Jamaica must be mindful of the contents of both statutory schemes when potential mergers and acquisitions are being contemplated.

More broadly, the decision is valuable for confirming the broad-based authority of competition authorities, with similarly broad statutory backing to Jamaica’s FCA. If a merger agreement is being contemplated between significant actors in a market, that agreement can lawfully come within the purview of the competition authority, even if the relevant statutory framework does not expressly provide for this power.

In essence, regardless of market, all firms operating in the jurisdiction are bound by the same competition framework.

It may be argued that the Board has taken a broad, purposive reading of the FCA and, in doing so, ascribed to the FTC, powers over mergers which it did not expressly have before. Even if true, this would only serve to bring Jamaica inline with the modern, accepted approach in developed market-driven jurisdictions  to the interpretation of similar statute.  This is a hard position for most to argue against.

CANTO Code of Practice and Net Neutrality in the Caribbean

image

A voluntary code titled: Voluntary Code on Safeguarding the Open Internet" (”the Code”) was publicly unveiled at the recently held Caribbean Association of National Telecommunication Organizations (“CANTO”) meeting in San Juan, Puerto Rico. The Code’s stated objective indicates that:

“The Code is in response to concerns brought forward by operators about consumer rights in accessing content over the internet. The Code seeks to balance consumer rights and responsibilities with the availability of flexible network management tools for operators. The wider objective of the Code is to provide a framework for operators across the Caribbean Region to collectively address the issue of Net Neutrality. ”

Net neutrality can be defined as the principle that all internet traffic should be treated equally. Where internet traffic passing through a network is not treated equally by the operator of that network, this amounts to data discrimination. 

Barack Obama, the United States President (who has an entire section of the White House website dedicated to Net neutrality) had this to say on the virtues of an open internet:

An open Internet is essential to the American economy, and increasingly to our very way of life. By lowering the cost of launching a new idea, igniting new political movements, and bringing communities closer together, it has been one of the most significant democratizing influences the world has ever known.

“Net neutrality” has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted. We cannot allow (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas…

[source]

Within the past 4 years, the notion has gained increased importance globally and has even seen some countries including Chile, Slovenia, the Netherlands, Brazil and Guyana passing legislation to protect end-users against breaches of the principle by Internet service providers (ISPs). 

 Against this backdrop, the fact that ISPs in the region have voluntarily sought to observe a code in support of net neutrality is laudable.

Already, a number of ISPs operating in the region have signed on to the Code which has at its core, the following policy statement:

“CANTO and its members support the concept of the open internet and the general principle that legal content, applications and services, should not be blocked. ”

The Code’s objective is to secure the open internet by observing net neutrality. This is a rather noble ideal, especially when expressed by a collective of ISPs – the very parties most likely to breach net neutrality principles. 

While supporting net neutrality is admirable, CANTO’s approach to achieving this end will likely see a divergence of views on the acceptability of the Code in its current form. Members of the business community and civil society actors in the region may have pause to be suspicious of the intent of the Code, when the details of the Code are brought into sharper focus .

Lawful and Legal

The Code repeatedly refers, throughout its three pages, to “lawful” or “legal” content, applications and services as a precursor to its signatories’ observation of net neutrality. However, the words are not defined in the document. This raises two sets of challenges for correctly understanding the placement of the phrases in the Code.

In the first instance, the potential implications of a repeated assertion that your obligation as an internet provider is to only allow ‘legal’ or ‘lawful’ content to be accessed in an unfettered manner are: 1. as an internet provider, you do not intend to allow unlawful content to be accessed via your connection and/or 2. You will allow unlawful content to be accessed, but, in a fettered manner.

The second challenge, which follows from the first is that an internet provider’s assertion that its net neutrality obligations are limited to allowing ‘legal’ or ‘lawful’ content to be accessed in an unfettered manner is that it begs the questions: Who gets to determine what is ‘legal’? What is that party’s definition of ‘legal’? In any event, how will a determination of lawfulness/legality be made?

This feature has been picked up by other observers as well. For e.g. ICT-Pulse notes:

“First, throughout the document it is continually emphasised that legal, lawful content, applications and services should not be blocked. However, should an operator be of the view that a particular service (for example) is illegal, does it go ahead and block it, or should that matter be first decided by a third party, such as the local telecoms regulator or the courts?”

In fairness to the regional ISPs, another side to this aspect of the debate does exist. It could be argued, with some merit, that the Code’s preoccupation with lawful content is merely reflective of existing globally accepted standards.

Consider the following two examples:

  • The FCC’s Open Internet Order at Appendix A, p203 reads: “A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
  • The NetMundial Statement is widely regarded as the only statement of principles in respect of the internet which has, to date, received widespread acceptance from different stakeholders in the global internet community. Upon closer scrutiny, the NetMundial Statement also adopts language that accords a differentiated status to ‘lawful’ content. The relevant section of that statement reads: “[The] Internet should continue to be a globally coherent, interconnected, stable, unfragmented, scalable and accessible network-of-networks, based on a common set of unique identifiers and that allows data packets/information to flow freely end-to-end regardless of the lawful content.

Notably, in neither of the two examples is the phrase “lawful content” defined. Accordingly, it would not be without merit for the signatories to the CANTO Code to argue that qualifying their commitment to net neutrality by the insertion of references to ‘lawful/legal content’ in the Code is neither without precedent or unfounded in the current prevailing global context.

The Code doesn’t cover the full scope of net neutrality ills

The Code’s policy objective is directed at the internet service providers’ abstention from blocking content. On the face of it, this seems to be a deficient objective since the principle of net neutrality is not only breached when an internet provider blocks content. The neutrality of a network can also be eroded by any act of a network intermediary that distorts or impacts the integrity of the data passing between the provider of information on the internet and the end-user wishing to access it. So for instance, when data passing through the network is throttled or, where the network operator opts to implement some form of paid prioritisation of traffic, the principle of net neutrality will have been breached.

To the extent that the Code does not explicitly address other well-known means of interfering with net neutrality as a policy objective, it is open to reasonable interpretation that the exclusion of other means of interference with net neutrality was an oversight on the part of the framers of the Code. Alternatively, it may be interpreted that the Code was expressly crafted to allow ISPs in the Caribbean free rein to, for example, throttle their networks as they see fit.

If the exclusion of other forms of impinging on the neutrality of networks was an oversight, then clearly, the deficiency needs to be addressed. However, if the latter interpretation is accurate and the exclusion was deliberate, then from the perspective of tech entrepreneurs with web-based offerings, this may be a legitimate basis for concern.

If, for instance, a telecoms provider decides to throttle data associated with the service offerings of those entrepreneurs then this grey area may be problematic. Equally, if the ISPs decide to implement a paid prioritisation scheme, it then means that early stage “techtrepreneurs”, without significant funding. will probably not be in a position to effectively compete with more entrenched competitors who can afford to pay to have their data transmitted to regional end users. This could potentially have a strangling effect on the development of a thriving technology-focused entrepreneurial environment in the region.

For the purpose of clarity, the stated objective of the Code may require some revising.

Safeguarding the Internet on whose behalf?

The Code positions itself as an attempt by the signatories to safeguard the open internet. The open internet, by definition, is a neutral network. Therefore, in teleological terms, a code in support of the ideals of net neutrality which seeks to place terms and conditions on the manner in which a party embraces net neutrality is, inherently, antithetical to the notion of net neutrality itself. I would therefore not be surprised if astute civil society advocates zeroed in on this fact.

Civil society actors in the region will not be the only ones viewing this latest move with some consternation. The code of practice may also give pause to technology-focused business interests whose products may compete with value added offerings of signatories to the Code. Such fears would not be without foundation in recent experiences. The clear example: the blocking of over the top (”OTT”) VOIP traffic by several internet providers [link]. This has implications for the supra-national OTT services who probably would not care too much but more importantly, indigenous developers of web apps who stand to suffer a similar fate.

Arguably, the Code’s reference in the title to “safeguarding the internet” is therefore, really not an expression of a broad-based desire to secure the internet with the interests of all the relevant various stakeholders in mind.  

Endgame

One potential outcome of the CANTO Code might be what amounts to a de-facto legitimisation of future efforts of the regional ISPs to stamp out OTT competitors to their own product offerings. It is one thing to take a course of action perceived to be draconian (such as taking a unilateral decision to block Viber, Skype and other OTT VOIP applications). Its quite another to justify that same course of action against an objective framework such as the Code. In this way, the Code could serve to remove the sense of ultimate responsibility of any one regional internet provider for any of their future actions in response to the perceived threat of OTT applications – in its stead, a cloak of collective responsibility that spreads across all the signatories to the Code.

Also, it would appear that net neutrality is becoming more of a meaningful consideration for Caribbean society – certainly at the governmental level. This is borne out by the slew of recent legislative and policy activity throughout the region which expressly addresses the open internet. Some examples include the proposed

Eastern Caribbean Telecommunications Authority (ECTEL) regulations; the recent passage of the Telecommunications Act in Guyana; and the Jamaican Government’s stated support for net neutrality.

If these movements are signalling the beginning of larger region-wide move towards legislating for the protection of net neutrality, this could translate into a scenario where, as in the case of ECTEL, civil society and other actors may have inputs into the drafting of regulations. Consequently, it could also mean that more enforcement mechanisms with teeth may result and, certainly, more genuinely rights-respecting provisions may be put in place. Such a restricting regulatory environment is not ideal for ISPs looking to benefit from the lack of restrictions on their ability to take appropriate actions to protect their investments.

In this prevailing context,  the Code may be viewed as a preemptive strike against the imposition of further regulatory constraints by regulators in the region.  If the ISPs, especially in a unified manner, can point to the existence of a pre-existing means of self-regulation via soft law that fills the erstwhile vacuum, it may lessen the impetus of regional regulators to step into the fray.

Endnote

From the perspective of legislators in the region, it may be necessary to begin questioning whether the self-imposed code by ISPs is sufficient to protect the rights of netizens in the West Indies.

More broadly, there seems to be sufficient scope for a larger discussion of what, if anything, net neutrality actually means to us in the Caribbean and what our collective response, irrespective of our stakeholder grouping, ought to be.

This response must take into consideration that a completely neutral network is, perhaps, more grounded in an ideal than in reality. As exemplified by the FCC Order, even the most pro-net neutrality regulatory agencies, when attempting to regulate net neutrality, have

expressly recognised that exceptions must exist. 

In the Caribbean, it may be that too much of the debate surrounding net neutrality has progressed on false parameters – those adopted from first world countries who based the debate on their circumstances. In other words, are we, in the tradition of V.S. Naipaul, being mimic men in respect of how we are even framing this conversation? After, all, low per capita income and low rates of internet penetration are not issues that, say, most Western European or North American states have to factor when considering net neutrality. Accordingly, how we in the Caribbean conceive of regimes to deal with net neutrality may have to differ from those examples as well.

A good example of a nuanced approach to legislating for net neutrality, while taking into account the country’s particular circumstances, is the Marco Civil in Brazil [mirror]. In the Marco Civil, only two exceptions to net neutrality are allowed: technical requirements essential to the adequate provision of services and applications; and prioritization of emergency services. In a first world state with predominantly high speed fibre optic connections to the network and multiple, overlapping networks for data to flow on, there may well be no need to prioritise the network traffic of emergency services. However, in a developing world context where the quality of networks and available speeds are a live issue, this would clearly be a relevant basis for legislating an exception to the rule. 

It would seem that the key consideration is: when legislative or policy positions are being adopted in the Caribbean, what exceptions to the net neutrality principles should we be willing to collectively accept as valid input considerations, given the particular country’s circumstances? 

When framed in this way, the Code may be viewed as the ISPs placing their view on the table as a

constituency grouping. In keeping with the multi-stakeholder model which has been the bedrock of global internet policy and governance decision making, it may now be time for end-users, civil society, regional NGOS, the business constituency and individual Caribbean Governments to share their vision of what net neutrality in a Caribbean context should look like. 

ECTEL proposes net neutrality language in draft regulations to complement revised Electronic Communications bill

The Eastern Caribbean Telecommunications Authority (ECTEL) is the regional, multi-state telecoms regulator for the Eastern Caribbean.  Recently, ECTEL put forward a slew of recommendations on various regulatory instruments to be enacted in the Eastern Caribbean. The regulations would go hand-in-hand with the proposed revisions to the Electronic Communications bill.

The proposed regulations cover: infrastructure sharing; submarine cables; market assessment; retail pricing regulation; and consumer protection

From an end-user perspective, the Consumer Protection regulations are clearly the most notable. Within those regulations are provisions which, interestingly, tackle net neutrality, protection of consumer data as well as privacy. 

In my estimation, the inclusion of net neutrality is the most impressive aspect of this proposed regulation. In a global context, only Brazil, Chile, the Netherlands and the United States have already expressly put in place substantive net neutrality legislation.

If passed, the Eastern Caribbean would, therefore, join an exclusive club of forward looking nations who have already explicitly enshrined net neutrality in legislative enactments. Pretty heady stuff.

On review, the Electronic Communications bill itself merely defines net neutrality and includes it as an object of the act. Curiously, the bill itself does not enshrine the right per se. Rather, the heavy lifting is left for the proposed consumer protection regulation. This is concerning for two reasons: 

  1. by placing it in the consumer protection regulation, it presumes that net neutrality is primarily about protecting end-users. Indeed, the language used, confirms that this seems to be the aim. This is problematic since it only covers half of the parties who are potentially negatively impacted by interferences with the delivery of content over the internet’s infrastructure. The reality is, it is also digital service providers who’s ability to deliver content over the internet who lose when an ISP decides to intervene.
  2. if it is a substantive right then surely the appropriate place to secure it is in substantive legislation which, at the very least, would require the rigour of two houses of parliament to interfere with in future. With mere subsidiary statutory instruments, it is much easier to amend without rigorous scrutiny. Therefore, it stands to reason that it could easily be amended in future. 

To be sure, I have, in the past, argued that the most effective manner for a country’s legislature to handle changes in technology is to have subsidiary legislation bear the brunt of the particular legislative innovation. Therefore my view here may appear contradictory. However, net neutrality isn’t a fad concept or technology that requires a state to grapple with its shelf life as a consideration in determining the legislative rigour necessary to usher it into society. In 37 years netizens will still argue back and forth about protection of net neutrality as a fundamental internet-related right. It is an enduring principle and its rightful protection mechanism, therefore, is in substantive legislation.

The consultation period for the proposed legislation initially expired on March 11, 2016 but has since been extended to May 12, 2016, so there is time to review and make any comments.

Link: Full Proposed Regulations. (pdf)

Link: Proposed revised Electronic Communications Bill for the Eastern Caribbean (pdf)

Link: Announcement on the ECTEL website.

Cyber security Report on Latin America and the Caribbean

Last Month, the Inter-American Development Bank, in association with the Organisation of American States, launched a publication titled: 

Cybersecurity: Are We Ready in Latin America and the Caribbean

image

According to the blurb on the website: 

The 2016 Cybersecurity Report is the result of the collaboration between the Inter-American Development Bank (IDB), the Organization of American States (OAS), and the Global Cyber Security Capacity Centre (GCSCC) at the University of Oxford. The report presents a complete picture and update on the status of cybersecurity (risks, challenges, and opportunities) of Latin America and the Caribbean countries.

Importantly, the report was the result of self-assessments by key stakeholders within each jurisdiction under review.

In respect of the key findings, a good summary comes from the preface by the current IADB President, Luis Alberto Moreno, who notes that:

The analysis of its 49 indicators shows that several countries in the region are vulnerable to potentially
devastating cyberattacks. Four out of five countries do not have cybersecurity strategies or critical infrastructure
protection plans. Two out of three do not count on command centers and cybersecurity control. The vast
majority of prosecutors lack the legal capacity to pursue cybercrime actions.

 

Among the more interesting aspects of the report is the model developed to assess the state of cybersecurity in LAC. The report applies what they describe as a “Cybersecurity Capability Maturity Model” (CMM). The CMM is based on a model developed by the

Global Cyber
Security Capacity Centre
at Oxford University and has five designations: startup; formative; established; strategic; and dyamic.  After analysing each country’s situation, that country is graded using the CMM designations in respect of 49 specific indicators. In turn, the 59 indicators were grouped into five broad categories:  

  1. National Cybersecurity Policy
    and Strategy (Policy and Strategy); 
  2. Cyber Culture and Society
    (Culture and Society); 
  3. Cybersecurity Education, Training and
    Skills (Education); 
  4. Legal and Regulatory Frameworks (Legal
    Frameworks); and 
  5. Standards, Organizations and Technologies
    (Technologies).
image

From a Caribbean perspective, the report is very comprehensive. All 12 Commonwealth Caribbean Countries and 14 CARICOM-party states overall (Haiti and Suriname are also included) are covered in the report. For context, 32 Latin America and Caribbean countries were surveyed in total.

To my mind, the biggest value of this report for Caribbean states is the quick diagnosis it provides of the weak area(s) in various states. This understanding should significantly assist in determining which areas should be prioritised by governments in the region and, by extension, where scarce state resources should be directed. Similarly, it should also be useful to civil society actors and organisations in determining which cybersecurity and ICT issues need flagging and actioning the most in their respective territories.

Implicit in the foregoing, is another important purpose that this report serves: it underscored the nuanced challenges we face from jurisdiction to jurisdiction in respect of not just cybersecurity but ICT issues generally. By extension, the findings confirm that the one-size-fits-all-in-the-region approach to analysing and addressing challenges is woefully outdated.

You can directly download the report as a pdf (English | Español

Also, I should mention that the IADB has shared the dataset that was mined to create the report. If you are interested in sifting through the data yourself

(and have the time), you can grab it here.