Puerto Rican Telecommunications Alliance files friend of the Court motion before the Supreme Court

By John McPhaul

jpmchaul@gmail.com

The Puerto Rican Telecommunications Alliance filed with the Supreme Court of Puerto Rico a motion requesting intervention as an amicus curiae (friend of the court) in two cases before its consideration and whose determination could have dire repercussions on the future of telecommunications service in Puerto Rico.

The cases concerned are Edwin Martínez Fernández; Alberto L. Ortiz Molina v. Office of Permit Management Case No. AC2022-0033 and QMC Telecom, and Rafael Agosto Santiago, Miriam Velázquez Velázquez and Evelyn Rodríguez Santiago v Office of Permit Management and QMC Telecom, case No. AC2022-0034.

In both cases, the Court of Appeals revoked permits for the construction of telecommunications facilities on the grofiles unds that they had been issued under the Joint Regulations for the Evaluation and Issuance of Permits Related to the Development, Use of Land and Business Operation of 2019 and 2020, which had been declared null and void by the Court.

The Court of Appeals concluded that the nullity of the Joint Regulations of 2019 and 2020 necessarily causes the automatic and retroactive nullity of any permit issued under any of them. Therefore, if this determination is confirmed by the Supreme Court, it could result in the automatic nullity of around 90,000 permits issued under both regulations, including thousands of permits for the construction and use of telecommunications structures and facilities, and in legal actions for the demolition of any structure built under permits issued under both regulations. Even at the time when the Supreme Court issued the appeal in Case No. AC2022-0034, a Court had already ordered the demolition of a telecommunications facility that was in use.

It is important to note that the retroactive nullity of a construction permit for a telecommunication facility would also entail the nullity of the permit to use the tower, and of any permit for the co-location of antennas and transmission equipment, as well as the construction permits of fiber optics, which connects the facility with the telecommunications network.

According to Luis Romero, president of the APT, the member companies of this organization and others in the industry have been during the past 5 years in a process of expansion of their networks, construction of telecommunications infrastructure and fortification of their fixed and wireless telecommunications facilities to ensure that the communications systems on the Island are capable of withstanding future atmospheric phenomena. Most of these projects required building and/or use permits, which were issued by the OGPe under the Joint Regulations of 2019 and 2020. It is even the Joint Regulations of 2020 under which all permits are still issued today.

“If the Supreme Court decides to uphold the nullity of any permit issued under the Joint Regulations 2019 and 2020, all cellular service subscribers could soon be left without service or with severely degraded service. The impact on affected individuals and businesses will be severe. Telecommunications companies would have to spend millions of dollars resubmitting permit applications for re-approval and, in the worst case, uninstalling antennas and transmission equipment, demolishing telecommunications facilities and towers, and removing all fiber optics installed between the tower and the head office. In addition, it would be sending a paralyzing message to the economic development created by the uncertainty about the legality of the permits, whose certainty is essential for the investment of capital and operation of any business in Puerto Rico. The legality of an act or the issuance of a permit under a regulation in force at the time the act was granted should not be extinguished by the subsequent nullity of said regulation,” Romero said.

The amicus curiae appeal filed by the APT is intended to foster a broader understanding of the dispute. The APT represents more than twenty telecommunications service providers, construction companies and operators of communications infrastructure networks with specialized knowledge in the management and processing of permits for the use or construction of telecommunications infrastructure.

“Our motion has the objective of being able to present to the Supreme Court a global vision of the consequences that its decision may have on our industry, the integrity of its services, consumers and the economy of the Island,” Romero said. He added that “all of us in Puerto Rico would suffer from being a country of law and order where property rights are protected and investment is encouraged. How is it possible that the one who complies with the law is punished in this way? I am confident that it will be decided correctly in this case.”

The telecommunications industry produces just over $3.75 billion annually, or about 5.4% of Puerto Rico’s Gross National Product (GNP) at current prices; and generates about 10,000 direct employees. While other sectors have decreased their investment in the economy, the telecommunications industry has invested in Puerto Rico more than $3 billion in capital for physical and technological infrastructure in the past 5 years.

“In order for telecommunications companies to continue to offer better and more advanced telecommunications services, it is vital that any ruling confirming the nullity of any of the Joint Regulations of 2019 and 2020 has no effect on the permits issued under them. The continuity of telecommunication services depends on this,” he said.

Romero called on the government to expedite, as a matter of urgency, and in compliance with the Uniform Administrative Procedure Law of the Government of Puerto Rico, the process of approving a new Joint Regulation for the Evaluation and Issuance of Permits Related to the Development, Use of Land and Operation of Businesses, in order to establish clear and precise rules that regulate the construction and issuance of permits in Puerto Rico.

“At stake is more than $100 million recently authorized by the federal government to expand broadband Internet infrastructure and wireless infrastructure in Puerto Rico, plus the hundreds of millions of additional dollars invested by private telecommunications companies. If this is not resolved soon, especially if the nullity is maintained retroactively, construction will be paralyzed until this matter is resolved,” he concluded.