Cable TV firm wins case over network access rules

The First Hall of the Civil Court ruled yesterday that a 1999 legal notice violated Melita Cable's constitutional rights.

Melita Cable had sued the Attorney General and the Minister for Transport and Communications saying it was licensed to install and operate a telecommunications system including cable television services and data transmission services.

The company owned the telecommunications system and had invested millions of liri to build the system and to maintain it and upgrade it.

Between 1999 and 2003 (when the case was filed) Melita had spent Lm10 million to offer data services on its network, including internet services.

In terms of legal notice 173 of 1999, Melita was obliged, if it was established that it dominated the market, to negotiate with all internet service providers to allow access to its network.

In the event that the negotiations failed the ISP was entitled to complain to the Malta Communications Authority which could order Melita to give access to such ISP under conditions the MCA considered suitable.

In August 2003 Melita was declared to be in a dominant position and the MCA imposed a schedule that would lead to forced access to Melita's network by June 2004.

It appealed from this decision to the Telecommunications Appeals Board.

In its constitutional application, Melita claimed it could only appeal to the board on certain limited grounds and that, in terms of the legal notice, it could subsequently appeal to the Court of Appeal on points of law only.

Melita claimed the imposition of interconnection and access to its network, as provided in legal notice 173, was in violation of its right to protection from forced deprivation of property without fair compensation.

The company added that its rights had been violated as it was not given access to an independent and impartial court or tribunal and that its right of appeal to the Court of Appeal was limited.

Mr Justice Lino Farrugia Sacco declared in yesterday's judgment that the authorities had pleaded that the court ought to decline to hear Melita's case as the company had other remedies available to it at law.

However, the court found that the ordinary remedies available to Melita in this case were insufficient to obtain the remedy requested by the company.

Melita's right of appeal to the Telecommunications Appeals Board was limited in the sense that the company could only appeal from a decision of the authority when there was a material error in the facts or some material error in procedure.

The company could also appeal if there was an error in the law or some material illegality.

Melita's subsequent right of appeal to the Court of Appeal was limited to points of law only.

The First Hall of the Civil Court therefore concluded that there were no other procedures available to Melita Cable and it therefore accepted jurisdiction to hear and decide the case.

When examining Melita's claim that it was being forcibly deprived of its property the court said this was the case, although this was in conformity with the general principle of law that no company could have a dominant market position.

The Constitution did not absolutely prohibit the forced taking of property but stipulated that such deprivation had to be accompanied by suitable compensation.

It resulted that Melita had spent Lm7 million in improving its system in the four years preceding the filing of the case and it was entitled to compensation.

The legal notice provided for compensation to be established by the Telecommunications Appeals Board. It was therefore clear that so far there was no violation of Melita's rights.

Mr Justice Farrugia Sacco added that the Constitution stipulated that any person claiming compensation for property was entitled to access to an independent and impartial court or tribunal established by law which had to establish the amount of compensation.

It resulted that Melita's access was to a tribunal appointed by the Minister for Transport and Communications for a fixed period.

The tribunal was composed of three members who enjoyed security of tenure and who could only be removed from their posts for particular reasons mentioned at law. However, the members' security of tenure was limited to a three-year period.

After referring extensively to both foreign and Maltese case law on the matter, Mr Justice Farrugia Sacco declared that the Telecommunications Appeal Board was entitled to give rulings and not merely to make recommendations.

The tribunal was not a court in the classic sense of the word but was entitled to deliver decisions that were binding.

The parties before the board were entitled to produce evidence and the board's decisions were subject to change by the Court of Appeal, but only on points of law.

The independence of the Telecommunications Appeals Board from the executive branch of government was limited as its members were nominated by the minister and had a limited security of tenure.

Mr Justice Farrugia Sacco declared that these points were fundamentally important in this case.

The Constitution stipulated that a person deprived of property had the right to seek compensation from an independent and impartial court or tribunal established by law. In this case Melita had no access to the Court of Appeal, save for points of law.

Mr Justice Farrugia Sacco declared he was aware of the enormous implications that this judgment could have and also of the negative comments that might be passed but he felt that a judge was in duty bound to protect the rights of the citizen in every case.

The court therefore concluded that Melita's right of access to an independent and impartial tribunal had been violated and it therefore declared that legal notice 173 of 1999 was in violation of article 37 of the Constitution and ought to be amended so as to provide a right of appeal from all decisions of the Telecommunications Appeals Board to the courts.