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Thursday, June 21, 2018

The legality of charging ‘frequency fees’ by BT&P

By Pieter Soons , filed under: Administrative

In Sint Maarten, a concession is required to operate and install telecommunication infrastructure.

Furthermore, certain companies are eligible to receive a license/authorization (“in Dutch: “een machtiging”) to operate a fixed cable network or a transmission and receiver installation, which allows those companies to operate telecommunication infrastructure without a concession. So, there are two kinds of telecommunication companies: concession holders and license holders.

The Government charges a fee to telecommunication companies to cover the costs of granting the concession and supervision and enforcement of the law. It can furthermore charge a fee to license holders for the costs of granting the license, supervision of the license conditions and costs associated with preventing and solving interference issues.

These fees for license holders have been set by law in the Ministerial Decree on Telecommunication Tariffs. Based on this decree, license holders are charged a so-called “frequency fee”, which is connected to the use of a frequency by a license holder.

On April 4th, 2016 the court gave an interesting judgment. It ruled that the law does not give a legal basis for charging these so-called ‘frequency fees’ to license holders. The law only gives a basis for charging a fee to cover specific costs, that are explicitly mentioned in the law. The frequency fee has no relation to those costs, and the Ministerial Decree on Telecommunication Tariffs is thus (partly) non-binding. Any decisions given based on the non-binding section of this decree, such as invoices for frequency fees, will be declared invalid, provided a timely appeal is filed against such a decision.

This means that, based on this court decision, license holders can (successfully) file an appeal against any invoice by which Government is charging a ‘frequency fee’. This should be done within six weeks after receipt of the invoice. If you have any questions about the above-mentioned subject, please don’t hesitate to contact me.

Pieter Soons

Partner at BZSE Attorneys at Law | Tax Advisers