FortisTCI Limited v Islandcom Telecommunications Limited

A spectrum licence cannot be extended by an informal amendment where the statutory scheme requires an application, compliance with the Spectrum Plan, entry in the public register and any required public notice. The licensing requirement in the TCI Telecommunications Ordinance 2004 must be read in context and does not sensibly apply to ordinary ISM devices. A large number of standalone meters, with no interconnection, is not a telecommunications network. Such meters also do not provide public telecommunications services. The appeal was allowed and the claim dismissed.

Islandcom sued Fortis after Fortis’s automatic meter-reading devices caused substantial interference with Islandcom’s mobile telecommunications operation in the 900 MHz frequencies. The trial judge found that interference occurred but held that Fortis needed neither a spectrum licence nor a carrier licence, and that Islandcom had no exclusive right to the relevant bandwidth. The claim was dismissed.

The Court of Appeal allowed Islandcom’s appeal, holding that Fortis required both licences and that Islandcom had a non-exclusive spectrum authorisation from 9 July 2008. The Privy Council considered whether Islandcom held a valid spectrum licence and whether Fortis required spectrum and carrier licences.

The appeal was allowed. The order dismissing Islandcom’s action was restored. Islandcom was ordered to pay Fortis’s costs before the Board and in the Court of Appeal, subject to any contrary submissions within the specified periods.

1. Islandcom’s spectrum allocation. The Provisional Licence initially covered only the 1800 MHz spectrum. The purported extension to the 900 MHz frequencies was invalid. There was no evidence of the application required by section 33 of the TCI Telecommunications Ordinance 2004, no entry of the allocation in the public register required by section 41, no allocation to Islandcom in the Interim Spectrum Plan, and no public notice under regulation 7(1)(a) of the Telecommunications (Frequency Management) Regulations 2005. The letter of 9 July 2008 and the suggested oral amendment therefore had no legal effect.
2. Spectrum licensing of ISM devices. Section 32 had to be construed in the context of sections 31 and 40. Applying the interpretive principle stated in R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] UKHL 20; [2003] 4 All ER 209, the Board held that Parliament could not have intended ordinary ISM devices, such as remote controls and similar equipment, to require individual spectrum licences backed by criminal sanctions. Fortis’s meters therefore did not require a spectrum licence.
3. Carrier licensing. The existence of thousands of meters did not create a telecommunications network. The meters were separate devices with no interconnection or mechanism by which they operated as a system. Further, ISM applications were expressly described as excluding telecommunications. The meters did not transmit telecommunications within the statutory definition and did not provide public telecommunications services. Section 8(1) consequently did not require Fortis to hold a carrier or service-provider licence.
4. Non-exclusive use. The Board accepted that any valid allocation to Islandcom would have remained subject to footnote 5.150 of the Interim Spectrum Plan, so that ISM users could operate in the relevant frequencies and telecommunications services had to accept harmful interference.

1. Privy Council: In [2014] UKPC 33, the appeal was allowed, the trial judge’s order was restored and the action was dismissed.
2. Court of Appeal of the Turks and Caicos Islands: On 4 October 2012, the court allowed Islandcom’s appeal and remitted the matter to the Supreme Court. It held that Fortis required spectrum and carrier licences and that Islandcom had a non-exclusive authorisation to use the 900 MHz frequencies from 9 July 2008.
3. Supreme Court of the Turks and Caicos Islands: Martin J found substantial interference but held that Fortis operated lawfully without the licences and that Islandcom had no exclusive right to the relevant bandwidth. The claim was dismissed on 8 June 2011.