It has been years since I last entered a court room to report on proceedings. My stint as a court reporter during my early journalism days back in South Africa was short-lived as the lure of chasing ambulances was far too great...
So it was with a certain amount of rustiness that I sat down on Wednesday to hear Vodafone present its case in the Auckland High Court to gain an injunction against Telecom launching its new XT mobile network.
Of course we all know the outcome of this case now, as the parties have settled out of court, and even though Vodafone got its wish to delay Telecom’s launch, it is hard to declare any winners here.
Justice Geoffrey Venning must be relieved at the settlement as making a clear judgement either way based on the cases put forward by Vodafone and Telecom would not have been an easy call.
The case did appear to tip heavily in Vodafone’s favour early on in proceedings.
Julian Miles QC took close to two hours to deliver Vodafone’s case, which raised the spectre of thousands of mobile users losing their connection the second Telecom flicked the switch on the XT network on May 13.
These claims were back up by detailed technical reports and analysis of sections the Radiocommunications Act of 1989.
Telecom, Vodafone claimed, was acting in breach of its transmission licence by allowing its signal to bleed into Vodafone’s spectrum causing harmful interference. Such spurious emissions were in breach the International Radio Regulations (IRR) which operators must comply with under the act, Vodafone stated. Therefore Telecom’s transmission was unlawful and did not comply with its spectrum licence.
Vodafone also claimed that Telecom was negligent in the way it designed and set up its new network by not taking reasonable care that it did not interfere with other networks.
This interference has caused poor call quality and dropped calls and as a result has degraded Vodafone’s service and has tarnished its reputation. The company has lost at least 300 customers since the problems began in January. Since January it experienced 154% increase in cancellations from customers dissatisfied with the reliability of its services. Formal complaints rose by 147%.
Things would only get worse post-May 13 when the network is switched to full power – it had been running on 15% to 20% power during its trial period.
As evidence that Telecom’s new network was causing interference, Miles cited an example from March and April, when Vodafone experienced interference at 10 of its sites. It asked Telecom to turn off its nearby transmitters, and it did so the interference stopped.
He said that even though the interference had become apparent Telecom brought forward the launch. It was now running an expensive advertising campaign to attract new customers, while Vodafone’s network was being degraded.
Vodafone had no difficulty competing on an even playing field, but this was knowingly and illegally being titled by Telecom, said Miles.
Therefore an injunction was needed to halt Telecom’s launch while it fixed the problem by installing filters on its network.
In its defence, Telecom’s counsel led by Pheroze Jagose went to great pains to unpick Vodafone’s interpretation of the sections in the Radiocommunications Act and IRR articles underpinning its case.
Vodafone’s interpretation was “creative and wrong”, said Jagose.
If Vodafone’s interpretation of some sections of the Act was correct, it would nullify the sections that cover how interference should be dealt with.
By Telecom’s interpretation of the act, its transmissions were lawful and therefore Vodafone had no grounds to argue the case in a court of law.
Its opening gambit was a 45 minute-long detailed analysis of a diagram depicting how radio waves transmissions inevitably spill into neighbouring frequencies. The aim was to serve a single point – interference is an inevitable part of emitting radio waves and the emissions created by Telecom’s transmissions were well within the specifications of its licence, and were therefore not unlawful.
It did not “do” for a global mobile operator like Vodafone to say it did not expect to find interference on its network.
Vodafone should have ensured its own equipment was less susceptible to interference and it was acting like a comfortable incumbent that has not been looking after its own network.
“What Vodafone is asking for is the status quo as if it held a patent on radio communications,” Jagose said.
International Radio Regulations call for operators to both limit unwanted emissions from their transmitters and reduce the susceptibility of receivers to interference. Therefore Vodafone had to take responsibility for what was happening on its own network.
Since Telecom had no visibility over what was happening on Vodafone’s network, it could not see if its transmissions were causing harmful interference.
Installing filters would only reduce interference, not eliminate it and is therefore not an appropriate blanket solution, Jagose said. They would also reduce the coverage area of the transmitters.
Telecom argued for site by site testing of Vodafone receivers to determine where any harmful interference is occurring on the network.
If Vodafone found Telecom’s transmissions caused harmful interference, arbitration clauses in the act gave it enough clout to force Telecom to address the matter – and it was therefore not necessary to bring the matter to court.
“The transmitter cannot escape arbitration,” Jagose said.
Telecom did not agree with Vodafone’ suggestion that the launch should be halted while court appointed telecommunications engineers assessed the networks. This would put a qualitative decision on wehter Telecom was complying with the law in the hands of a network engineer.
Vodafone’s suggestions that all hell would break lose on May 13 when the switch is flicked on the XT network were unsound as the network has been fully operational since March.
Telecom conceded that interference could increase as traffic and power volumes increase, but said the impact would not be as immediate from May 13 as Vodafone implied.
Meanwhile, the impact of an injunction on Telecom would be substantial as it would lose ground in a highly competitive market if its launch was delayed. It would have difficulty to recapture the position it would have had it was able to meet pent-up demand for its new service and launch on time.
By the close of proceedings, it seemed like Telecom gained the advantage, with the Vodafone legal team appearing to be squirming when Justice Venning asked it to clarify some of its interpretation of the act.
The question at the heart of the matter seemed to be: Even if Telecom’s transmissions caused harmful interference, does that mean it was in breach of its spectrum licence; and was it therefore transmitting unlawfully?
It was hard to make a clear judgement either way – even after listening to the arguments of both sides.
How the judge would have ruled will now forever remain unknown since in the end this issue was resolved where it should have been from the start – out of court, and on-site between the engineers from both companies…
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