PNG COURT REJECTS BID TO QUASH TELECOM COMPETITOR

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PORT MORESBY, Papua New Guinea (PNG Post-Courier, July 5) - The public mobile telecommunication license issued to mobile company Digicel (PNG) Limited by the Independent Consumer and Competition Commission has been confirmed by the National Court in Waigani.

ICCC commissioner and chief executive officer Thomas Abe said the court decision means the National Executive Council decision made in 2005 to introduce mobile competition in the mobile telephony market was valid, and the licenses issued by ICCC to Digicel and GreenCom were valid and effective.

And the June 21 NEC decision to recall the ICCC’s issuing of licenses to Digicel and GreenCom may be [still before the court] as the matter was still before the court when the NEC made its decision, said presiding judge Justice Ambeng Kandakasi yesterday.

He said, however, that was a matter for counsel representing Telikom PNG Limited, ICCC and Digicel to think about.

The court dismissed proceedings by Telikom seeking orders to quash the licenses. Telikom had filed three proceedings before the court, all on the same license issue. The court dismissed the proceeding on the basis the same key issues raised in the National Court were brought to the ICCC Appeals Panel and that amounted to an abuse of the process of the court.

Secondly, Telikom abused the court process through a writ of summons seeking mainly a declaration and consequent relieves against the decision of the ICCC, which is a public body. The matter should have come to court by way of originating summons. The court said the key issues raised in these proceedings had been finally determined by the appeals panel at the instances of Telikom while these proceedings were afoot. "Principles of res judicata (court or panel of competent jurisdiction) apply to preclude Telikom from re-lighting the issues that have already been determined (by the appeals panel)," the court said.

Meanwhile, that panel on May 24 had dismissed Telikom’s application and confirmed the licences. ICCC’s decision to declare license conditions under section 63(1)(c) of the Telecommunications Act 1996 was made on March 23 while it issued licenses on March 27.

Telikom had argued before the panel the ICCC was in breach of section 65 of the Telecommunications Act in that it did not engage in sufficient consultation and that the declaration imposed in the license conditions was inconsistent with the regulatory contract and consequently was of no effect. It also argued that the issuing of licenses was inconsistent with the regulatory contract and contravened section 55 of Telecommunications Act.

The panel, headed by international arbitrator Rodney F Shogren, said the issuing of licenses before October 17 did not permit operations until October 17 and was not inconsistent with the unamended regulatory contract.

"In my view the intent of Clause 10.1 was to prohibit competition before October 17. Issuing a license before that date so that a new operator could take preparatory actions with a view to commencing operations on that date is reasonable and consistent with the objectives set out in section 5 of the ICCC Act," he said.

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