OfReg loses decision on battle with Datalink

Justice Marlene Carter has ruled that the Utility Regulation and Competition Office, commonly known as OfReg, failed to follow the law in ruling that Datalink Ltd. could not charge reservation fees for future use of its power poles.

The case, filed by Datalink in August 2017, hinged on the argument that OfReg did not issue a draft decision, as required by its own regulations, before publishing its final decision on the reservation fee matter.

The dispute arose when internet provider C3 complained to OfReg that the fees it had paid to Datalink to reserve space for future fibre optic lines were not equivalent to those paid by other companies, including Flow and Logic.

Following an investigation, OfReg officials ruled that Datalink lacked the authority to charge such fees and that it should reimburse the three companies for the money they had paid.

When Datalink applied for a judicial review of the decision, it complained that it never had the opportunity to comment on OfReg’s final decision because the draft of that decision was not published.

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OfReg officials argued that a consultation it engaged in with Datalink was the same as a draft decision, since the agency had the opportunity to raise questions and arguments during that meeting.

Bur Justice Carter disagreed.

“The question for this court,” she wrote, “is whether the fairness of the consultation was sufficient to absolve the Defendant [OfReg] from having to issue a draft administrative determination”.

OfReg argued that the two components were essentially the same thing.

“I am not persuaded by the argument that this approach can provide support for the issuance of a draft administrative determination and an initial consultation as the same document,” Carter wrote.

“Accordingly, the decision is quashed and remitted back to the Defendant to comply with the letter of … the law,” she added.

Datalink officials said they were pleased with the judge’s finding.

“We welcome the decision of the judge,” company secretary Claire Stafford said in an email. “We look forward to working proactively and fruitfully with the OfReg in the future. We have no further comment at this time.”

Alee Fa’amoe, OfReg’s acting CEO and executive director of information and communications technology, declined to say if the regulator would continue to seek a prohibition on reservation fees. He did say the agency would work to promote competition.

“In essence, competition means consumer choice,” Fa’amoe said in an email. “Consumers have choice when they can select from a variety of service providers, but service providers can only offer their services if they can deploy their networks to the consumer’s business or residence.”

“For years now, the delays and costs associated with pole attachments have been the main obstacle to this objective,” he added.

He said the agency would “aggressively pursue a number of options” to address the issue, but would not specify that eliminating reservation fees were one of those.

“All options remain open,” he said.

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