Undoing the BTC deal
By CANDIA DAMES
Guardian News Editor
candia@nasguard.com
Could it be done?
Officials of Cable and Wireless Communications (CWC) appear to have their work cut out for them.
In addition to delivering on all they and the government promised in the months and weeks leading up to the recent controversial closing of the Bahamas Telecommunications Company (BTC) privatization process, they must convince hundreds of BTC workers that CWC is not the enemy, but a caring employer and strategic partner in every sense.
That may be a tough task, but perhaps not an impossible one.
Accepting the defeat that has been handed to them, BTC union leaders have met with CWC representatives to try to iron out the best arrangements for their jittery members.
While it may reach agreement with the previously enraged unions, what is clear is that CWC has found no friend in the Progressive Liberal Party, and if its leader, Perry Gladstone Christie, delivers on what he promises if he wins the next general election, CWC could face more problems that it bargained for.
But that’s if Christie wins, and if he follows through on his warning to undo this deal.
The former prime minister issued the threat to CWC on several occasions, most recently a week ago as the company and the government were preparing to finalize the transaction.
“This is a bad deal,” Christie said.
“The deal stinks and the PLP remains committed to regaining this asset for the Bahamian people and allow the Bahamian public to have a full and public view of the entirety of this transaction.”
But while Christie is sure he would undo the deal, he apparently has not yet settled on how it would be achieved.
Each time he threatened to change the terms of the deal, we carried the warning, but there really was never any indication about what steps he would take to deliver on this promise if he forms the next government.
So National Review decided to ask him.
Christie revealed that he would seek advice from lawyers because it would have to be done legally, of course.
“The mechanics will have to be left to the kind of advice we will get on the matter,” he told us.
“I’m not prepared to comment on those matters.”
Three PLP parliamentarians who are lawyers also told us they are not prepared to speak behind the leader.
One of them said, “We won’t get our messages mixed up on this one.”
So what really would be Christie’s options on this?
Thomas Evans, QC, was not intimately involved in the BTC deal, but has vast knowledge of the law and commercial transactions.
“Because they are the government I suppose they can do whatever they choose,” said Evans, speaking generally about governments.
Evans recalled years back when he was in the Office of the Attorney General.
He was bold enough to write to the government and advise it could not do something.
“I was very quickly rebuffed and told ‘Look, we’re the government. We can do whatever we feel like doing’. That’s true, but there are consequences for certain things that they do.”
Evans pointed out that if one party reneges on an obligation that it assumes in entering a contract, then that violates and encroaches on the other party, and that other party is entitled to sue and recover damages for whatever loss is incurred as a result of the breach.
“So, while the government could go ahead and not perform an obligation which it assumed, there are consequences,” he repeated.
PENALTIES
Another lawyer close to the PLP suggested to us that one way in which a new Christie administration could force a deal change is by reducing the three-year exclusivity period for cellular service.
“CWC would have to determine how that would affect its commercial interest because the deal may no longer be viable,” noted the lawyer who did not want to be named.
“It may give them a commercial impetus to say rather than just paying us the penalty we want out of the entire deal.”
But that would call for hefty penalties.
In its agreement with CWC, the government has agreed “to pay to the purchaser such amount as is equal to the loss, expense, damage or other liability (calculated on the same basis as would be used for determining damages for breach of contract) incurred by the purchaser which arises as a result of a second cellular license being issued prior to the third anniversary of completion, and/or a second and third cellular license being issued prior to the fifth anniversary of completion.”
Under the agreement, the government has agreed to pay CWC $100 million if one or more additional cellular licenses are issued within the next year.
It would have to pay $80 million if one or more licences are issued within the next two years and it would have to pay $40 million if it issues one or more licenses within the next three years.
If the government issues a third cellular license after the third anniversary of the closing of the sale, but prior to the fifth anniversary of completion, it would be subject to a $20 million penalty.
So it would seem unlikely that the Christie administration might want to go this route, but given that Christie has not yet received advice from lawyers, that of course remains unclear.
Evans said if the government decides to go to Cable and Wireless asking for two percent of the shares back, it would likely have great difficulty “because you’ve got a deal.”
“Once a contract has been entered into between two parties it can’t be changed unless you have the consent of both parties,” he explained.
“It can’t be altered. One person can’t unilaterally alter the terms of the contract, even if you are the government.
“So, Cable and Wireless would say ‘Look, the deal I have is a deal. I acquired 51 percent. That’s what I wanted. I am not interested in 49 percent, and I’m just not going to agree.
“I don’t know that there’s any way that the government, even though they’re the government, would be able to compel Cable and Wireless to agree to surrender their two percent.”
Evans said the fact that a new party takes over the government doesn’t change the obligations that were assumed by the previous party because the government is the government.
“A party doesn’t make the government even though the constitution says that after an election the prime minister is the person who is the leader of the party that has the majority in Parliament.
“To that extent there’s a measure of connection between the government and a political party. But the point I’m seeking to make is that the government is the government.”
TAX FRUSTRATIONS
When he spoke in the House of Assembly recently, Golden Gates MP Shane Gibson, who served as a minister in the Christie Cabinet, noted that there are all sorts of creative ways in which a PLP government could pull the rug from under CWC.
Gibson — who served as president of the Bahamas Communications and Public Officers Union (BCPOU) during initial attempts to privatize the then BaTelCo in the 1990s — expanded on those comments when he spoke with us for this piece.
“Obviously Cable and Wireless would have gotten what they consider to be an air-tight agreement from the government,” he said.
“And they are making it very difficult to introduce competition [any time soon] and they are making it difficult to have any other operator come in here, and making it difficult for a new government to be in a position to force them back to the table.
“As I said in Parliament, there are many ways that you can force a company like Cable and Wireless back to the table.
“We can tax them on certain aspects of their income; tax them on certain areas of the different services that they provide. For instance, we could put a special tax on mobile services. They’re the only one who provide mobile services in The Bahamas.
“So we tax them 15, 20 or 30 percent on mobile services, so there are many ways.”
Gibson had another idea.
“If we’re in charge of URCA (the Utilities Regulation and Competition Authority), we could have discussions with URCA and make sure that individuals at URCA, advise them, or encourage them not to allow them (CWC) to go up on rates to offset taxes that they would have on certain parts of income.”
But given that URCA is an independent regulator, that too appears unlikely.
Gibson said that at the end of the day “it is known that the Bahamian public wants nothing to do with Cable and Wireless and they want BTC back in the hands of Bahamians.”
He said Bahamians have been running BTC for decades and “at the end of the day they almost feel that we are going back 100 years”.
“Once certain members of any elite group decide that they want to purchase, whether it is a property or a company, it is very difficult to persuade them to give it back to the people that it belongs to,” Gibson said.
“So it’s important to put it back in the hands of the people.”
CONSTITUTIONAL CONSIDERATIONS
We also asked prominent attorney Brian Moree how Christie might be able to get BTC back in the hands of the people, if he is re-elected.
Moree, who had no involvement in the BTC deal, said given the very strong and very direct comments from Christie, one would assume that he has a legal basis for making those statements.
“It would be surprising that that position would be adopted unless they had the benefit of some advice to suggest that the transaction could be impeached or reversed if they were elected,” Moree said.
“Generally speaking, if you’re going to challenge a transaction of that sort retrospectively or after the event, one would have to look to see if there were any constitutional issues, which would be relevant and whether proceedings on the public law side of the court could be commenced, either by way of judicial review or some other process.”
Constitutional issues were raised by one respondent when URCA was considering the BTC/CWC deal.
That respondent asserted that the proposed exclusivity of the licensee is ultra vires the Constitution of The Bahamas.
The respondent stated that URCA cannot be party to an unconstitutional result and should require the applicants to address the question as to whether or not the exclusivity arrangement offends the Constitution.
URCA said it was aware of discussion of this issue by the Judicial Committee of the Privy Council in the Marpin Case2, a Dominican case in which the Judicial Committee held that a monopoly to control a means of communications can amount to a hindrance of freedom of expression, provided that it is proven that the restriction exceeds that which is reasonably justifiable in a democratic society.
URCA noted that the Committee in that case did not make any conclusive finding, but referred the issue back to the Dominican courts for a consideration of the particular facts in the context of the above test.
“In any event, constitutional issues, such as this, are highly complex and would properly involve significant judicial scrutiny of the facts surrounding the challenged decision. URCA is not the appropriate forum to consider matters of constitutionality of legislation in The Bahamas, and is therefore not competent to determine this point,” URCA said.
Supporters of Christie’s plan to take back a controlling interest in BTC point to similar action taken by Prime Minister of Belize Dean Barrow who in 2009 brought legislation to nationalize Belize Telemedia Limited (BTL) in the public interest.
Barrow promised “fair and proper compensation” and said the move against BTL was not “some cowboy action, but something done in the full plentitude of, and compliance with, our constitution.”
INVESTOR CONFIDENCE
Moree said a degree of responsibility must be attributed to people in public life who make statements concerning these serious matters.
“That is why I said that I assume persons have obtained legal advice to support the position which they have adopted,” he said.
“I’m not aware of that legal advice, so I would not want to speculate.”
While he did not speculate, Moree raised the issue of investor confidence.
“The Bahamas as a sovereign country [must] acknowledge that there has to be a continuity of governance regardless of which political party is in power at any point in time,” he said.
“And when persons are dealing with the Government of The Bahamas, they have to have a level of confidence that their dealings — assuming that they’re lawful and they’re proper and there has been no corruption — they need to have the confidence that if they deal with the government which happens to be the FNM one day, that their transactions aren’t going to be the subject of litigation if another party comes in...”
Gibson said the Christie government has no problem with foreign investors, but is concerned about safeguarding national assets.
“If you look around and you try to identify one single project that this FNM government would have brought to The Bahamas since coming to office in 2007, I don’t think you could do that,” Gibsons aid.
“All of the projects that they are sitting and smiling over right now were projects that were initiated under the Progressive Liberal Party administration.
“And so, we’re not anti-foreign investors. We are anti-Cable and Wireless.”
Gibson said many Bahamians would have welcomed AT&T or T-Mobile, but not as majority shareholders.
“We’re not talking about foreign investors; we’re talking about this specific deal with Cable and Wireless, which seems to be the greatest giveaway ever in the history of The Bahamas,” the MP said.
PLPs would no doubt point to the instances where the Ingraham administration, upon assuming office in 2007 undid some of the deals left in place by the Christie-led government.
The straw market deal, incidentally, which was undone by Ingraham, remains unresolved with some of the professionals who had agreements with the government still waiting to be paid.
Of course, there were no such agreements on the magnitude of the BTC deal, but those actions by the new government led to the popular ‘stop, review and cancel’ phrase tossed about by PLP politicians.
When they took over last week, CWC executives seemed unbothered by Christie’s threats.
“In terms of our operations with government, we have a number of operations with governments across the globe in which we have very successful relations with them,” said Gerard Borely, chief financial officer of LIME, CWC’s regional arm.
“And we have successful relationships with governments no matter who is in power. The reason for that is because we deliver value and service to our consumers and governments, value that they appreciate. And we expect that to continue to be [the case] here.”
4/11/2011
thenassauguardian
