The Court of Appeal for the British overseas territory of Gibraltar has ruled in favour of a privately owned fibre optic broadband operator, GibFibre (ISP GibFibreSpeed), after it was rejected access to the Mount Pleasant Data Centre, which is owned by rival Gibtelecom (a wholly owned Government company), and the local regulator failed to help.
The situation began after GibFibreSpeed (GFS) began seeking an agreement that would grant them access to the data centre so that they could connect directly via fibre with the servers of potential customers and thereby provide them with its services. A similar deal had already been done between Gibtelecom and Sapphire Networks, which GFS hoped to echo.
Unfortunately Gibtelecom refused to negotiate access with GFS. The state owned operator initially claimed that it lacked the capacity to support the request, but GFS claims they later conceded the true reason was commercial. In response GFS asked the Gibraltar Regulatory Authority (GRA) to intervene and compel Gibtelecom to either enter into an agreement with GFS or at least to open negotiations in good faith.
However the GRA had other ideas and on 16th February 2017 the regulator ruled that it did not have the power to compel Gibtelecom to afford GFS access to the data centre. In response GFS opened an appeal through the Supreme Court but the court chose to uphold GRA’s decision. GFS didn’t give up and took their case to the Court of Appeal, which after a 2 year battle has this week ruled in their favour (under EU law).
Geny Sheriff, GFS Director, said:
“We have been successful in securing a positive judgement which in principal establishes that the GRA have the statutory power to compel Gibtelecom to grant a rival telecommunications operator access to an electronic services network under Article 5 of the Framework.
We wish to thank our legal team comprising Elliott Phillips and Cecile Gomez of Signature Litigation and Alan Mclean QC of Blackstones Chambers who have provided excellent representation and support to our business throughout judicial process and complex litigation over the last two years.”
In his ruling the judge noted that, “Curiously, Gibtel has chosen to take no part in the proceedings despite its obvious interest in the outcome.” As a consequence the GRA found itself with the “invidious task of defending its own decision whilst claiming to be neutral as to the outcome.”
In conclusion the judge said the GRA, “has the power to impose access in favour of GFS but only on the narrow basis that in principle there is a power under article 5 (but not article 12) to require an operator to allow access to physical infrastructure even where the relevant infrastructure could not be described as facilities associated with the network or elements of it. Whether it would be appropriate to require such access … is not for this Court to say.”
The Court of Appeal has now directed the GRA to reconsider whether it would be appropriate to order GFS access in accordance with its Judgement and the relevant law, although it remains to be seen how the GRA will respond. A local TV news report on the case can be found below.