Tangled Webs and High Light Bills

Submitted by Observing

The good thing about having wall flies as friends and white rum bottles as magnifying glasses is that sometimes the random story pops out. Last night under the moon in the glare of a pint was one of those nights.

Barbados woke up to the appointment of an Acting Registrar by the name of SD. Congrats SD!!!

But, does the average Bajan know the intertwinnings, interwranglings and woven webs that may have an impact on their lives and cost of living?

Let the rabbit hole begin.

SD according to LinkedIn is the substantive Chief Legal Officer in the Ministry of Housing.

Recently she was the Acting Public Counsel for the Ministry of Energy and Business Development.

Continue reading

FTC Chairman Tammy Bryan Moves Out of the Way

The following has been circulating on social media for a few weeks. It seems relevant with the press announcement Chairman of the Fair Trading Commission (FTC) Tammy Bryan has recused herself from taking further part in the Barbados Light & Power (BL&P) rate process – Blogmaster


 

As a child I liked to play those little games found in magazines called “connect the dots” and “follow the trail”. While following the trail sometimes led to a dead-end, connecting the dots often created an image one would not ordinarily see with the naked eye. Although things like magazines are passe and the world wide web is now en vogue I have kept up with my childhood passion of connecting dots and following trails. 

 

 

One day whilst doodling around on a local online newspaper the recent Barbados Light & Power application for a rate hike caught my eye, especially the various actors involved and once again my childhood passion kicked in and I started connecting dots and following trails. 

 

 

I kept hearing the name Barbados Light & Power and some name Emera used in the same breath. I wondered what it was and started my trail at the Corporate Affairs website. I discovered an Emera Inc on the external company register as being domiciled and registered in Halifax, Cananda and its mailing address locally was “suite 205-207, Dowell House, Roebuck & Palmetto Streets, Bridgetown, Barbados”. 

 

 

Of course, I googled that address where a whole set of hits came up which all identified a law firm called George Walton Payne & Co. as being located at that address. I may be wrong but Emera is probably a client of that law firm. My childhood inquisitiveness continued and of course I wanted to know who were the people in this law firm and I quickly checked the Barbados Bar Association website and names like an Andrew Vanroy Thornhill, Q.C, a Tammy Lavone Bryan and a Mr. George Walton Payne, Q.C, all came up.

 

 

That last name triggered something in my head and then I remembered why the name of that law firm sounded familiar. If I not mistaken is that not the law firm where the Attorney General Mr. Dale D. Marshall, Q.C was a managing partner? He supposed to have some flagship piece of law called Integrity in Public Life that he can’t seem to breathe life into. I didn’t see his name on the Bar Association website but I sure he still got friends in there.   

 

 

That trail led to a dead end, but still not satisfied I went back to the Corporate Affairs website and typed in Emera in various forms only to discover that there are two Emera (Caribbean) Incorporated, one listed on the Amalgamation (Domestic) Register as company 40270 and the other on the Domestic Register as company 14327. There is yet another, Emera Caribbean Holdings Limited on the International Business Company as company number 40616. All of that was gobbledy-gook to me except that one name kept cropping up. That of Andrew V. Thornhill, and I wondered if this person could possibly be Andrew Vanroy Thornhill, Q.C? I must admit that I cheated on this one and got some help from a little birdy who had access to the people database but it confirmed that they are the same person. Not only is he a partner in that fancy law firm but he is a managing partner if you please. Apparently it was he who managed that big fish of Emera buying the shares of the BL&P! Now I understand why people call the two names together. Emera owns Light & Power. My little exercise didn’t lead me anywhere though. I heard it isn’t unusual for lawyers to sit on the boards of their client companies who they represent legally. I had run into a dead-end again so I started on a new track.

 

 

I started at the website of the Fair Trading Commission because it is that government entity who is to determine the principles, rates and standards of service for places like Light & Power. Their values are supposed to include acting with integrity, fostering the respect and trust of staff and the public, and demonstrating impartiality. This FTC place is headed by a board of Commissioners under the chairmanship of a Mrs. Tammy Bryan. Something there again rang a bell, that name sounded awfully familiar. Is this Mrs. Tammy Bryan, Chairman of the FTC and the Tammy Lavone Bryan of George Walton Payne & Co. the legal firm that represents Emera one and the same person? Again, I had to cheat on this one and look at the back of the book for the answers, and again my suspicions were confirmed. Not only is she a partner together with Andrew Vanroy Thornhill Q.C, one of the Emera Directors, but is junior to him. The people work in the same place with their offices separated by a veneer thin piece of Chinese see-though paper for a wall! They probably borrow pens, papers, chit-chat about how wifey, hubby or the children doing and bounce things off each other. 

 

 

I don’t know, but would a managing partner not be senior to an ordinary partner and have a certain level of influence on them? Don’t Chairman of anything still have a certain level of influence on the other members? I know sometimes they have a deciding vote on things. 

 

 

I’m ignorant to how these things work, but I began to wonder if the law firm George Walton Payne & Co. was working for its client Emera in advising on the current application before the FTC panel for an order for a confidentiality hearing and for rate increases backdate to November last year. If this is so, would the law firm of George Walton Payne & Co. not stand to make a profit in some form or fashion from that application of its client Emera to the FTC under the chairmanship of one of its partners? This picture looking really ugly though.

 

 

Again I am ignorant to these things but does a partner in a law firm not equate to that of a director in a company even if by another name? Does a partner in a law firm not have a duty to the firm and to look out for its best interest? I would have to consult with a lawyer on that one but it makes me wonder who the missy that is Partner/Chairman/Commissioner batting for.

 

 

 

I also wonder about the FTC Commissioners, are they not “Directors” of that entity as well, even if by another name and owe a duty to that entity and as their value statement” said to act with integrity and demonstrate impartiality? I remembered years ago in a business law class somewhere that directors have a duty not to make a secret profit. I also remembered in that same class some talk about disclosure, conflict of interest and the whole nine yards. 

 

 

I must admit though that I’ve never had these two games combined into one, where following a track connected dots along the way.In the end, I seem to be no wiser in my little online follow the track and connect the dots game for what I’ve ended up with looks more like one of those things oletime things called a cesspit. It used to have in a lot of nasty worms and creepers and it looked like it was living. God forbid if you ever disturbed it and it belched. The whole place was stink for miles around.

 

 

 

I must see if any of the intervenors at the FTC, BL&P rate hearing can help me to identify what I just ended up with. In the meantime I moving on to the next game called follow the trail and find Ian Carrington.

Sunday Musings – Where We Going?

Two items of news reported in traditional media in the last 48 hours attracted the attention of the blogmaster. The first report in the Nation newspaper with the title – ‘Strong Concerns’ about BL&P call – highlighted a concern by lawyer Tricia Watson about the BL&P asking for a rate increase and accused them of hiding information from the public according to the news report.

The blogmaster has no issue with Watson and her recent prosecution of the BL&P on the airwaves about the request for a rate increase. In fact we need more public spirited citizens getting involved to advocate on the many issues that affect us. It is after all a key element to ensuring a healthy democracy.

However, of interest after listening to Tricia Watson on VOB’s Brasstacks and reading the newspaper report, a question came to mind. Why did Watson think it necessary to come to the public to air concerns? The law governing a rate review hearing must be a public affair and all sides will have an opportunity to present positions under the oversight of the Fair Trading Commission (FTC), the regulator. Notwithstanding there is always the opportunity to educate a public about a highly technical matter – the blogmaster’s concern stands.

An explanation of the role of the FTC posted to the website mandates the Financial Services Commission Act (2010) assures John public the FTC has a duty to fairly weigh positions presented by the company (BL&P) and intervenors (Tricia Watson is an intervenor) with the support of subject matter of experts. The verbal darts being exchanged in public raises the unsubstantiated view held by the blogmaster that there is an element of distrust in the system by those representing the people.

The other news item of interest addressed declining car sales on the island. The official in the Barbados Today article titled – Car sales continue to be a struggle says senior executive – lamented car sales were beginning to pick up until the Russia/Ukraine conflict intervened to forestall.

Barbados is a country struggling with a bad economy that has not recovered from the 2008 global financial crisis. In recent years it has been hammered by Hurricane Elsa, volcanic ash from Mount Soufriere, Covid 19 to name the ‘biggies’. Why in heavens name is the leadership of the country doing nothing to restructure and make the transportation system more efficient? Is the blogmaster wrong in thinking what exists is unsustainable?

The importation of food and fuel are responsible for soaking up significant amount of scarce foreign exchange. Citizens continue to be afflicted with excuses from government regarding the pace at which electric vehicles are being introduced to the market. Daily NEW fossil burning vehicles bearing ML plates (government owned vehicles) are seen bouncing around the island. Why are we letting another crisis to go to waste? 

Where there is No Vision, There is no Hope

George Washington Carver

In summary, we need to ensure agencies responsible for representing citizens do so in a matter that nurtures trust between all actors in civil society. The blogmaster is reminded of the sudden resignation without explanation to the people of former minister Ronald Toppin. With well over 130,000 vehicles on the roads, where they hell are we going?

Fair Trading Commission (FTC) to Fight SOL High Court Filing Against the BNTCL Acquisition

In the interest of fair play BU shares an interesting interview hosted by Jeremy Stephen with SOL principal Ezra Prescod. The purpose of the interview is meant to give balance to other interviews carried by Jeremy Stephen in the past with the RUBIS principal. Local economist Jeremy regularly post to the Facebook medium to share concerns with his followers. The interview in our non technical view was a little contrived but welcomed nevertheless to support demystifying the contentious issue of the BNTCL sale by government to SOL and the subsequent challenge by RUBIS.

This transaction is obviously driven by government’s thirst for forex, one wonders if  the government retains control of BNOC i.e. importations of fossil fuel, why not retain control of the distribution which is an easy earning opportunity based on applying a markup on the distribution of product. Why does SOL want to buy BNTCL if the government is committed to a green economy sometime in the near future and if realized will reduce throughput to BNTCL and therefore revenues?

Hopefully members of the BU intelligentsia will probe this matter in areas Jeremy failed to tread.

Chairman of the Fair Trading Commission (FTC) Jeff Cumberbatch Responds to Minister Chris Sinckler

Chris Sinckler, Minister of Finance

In response to Minister of Finance Chris Sinckler’s criticism about the length of time the Far Trading Commission (FTC) has taken to deliver its final decision on the application for SOl to acquire BNTCL, Chairman of the FTC Jeff Cumberbatch shared the following press statement [16 November 2017]. The final decision on the matter is to be made on November 23, 2017. It is interesting to note that the FTC held in-camera sessions as recent as 23 October 2017 pursuant to 26 (2) of the Fair Trading Act, AND, Minister Sinckler launched his criticism on the 10 November 2017.

The Barbados government is desperate to bolster its foreign exchange reserves which based on recent reports has fallen to an uncomfortable low of 9 weeks cover. It is a pity the country finds itself in a place where profitable state assets have to be dumped to support consumption spending by the country.

Justifying BNTCL Sale to SOL

Submitted by Tony E. Gibbs (Energy Commentator)

The promotion and maintenance of fair competition requires that business activities and trading practices be closely monitored and scrutinized to ensure that consumers’ welfare is protected and their interests served through competitive markets. This requirement seems particularly appropriate in the proposed sale of BNTCL to SOL, an agreement that appears difficult to justify.

Anti-competitive market behavior and concentrated market power can be justified if based on public interest grounds, and if such actions promote economic progress and real efficiencies of which consumers can share. Consumer welfare is therefore paramount. It is considered the key driver of fair competition policy, but also it brings with it, to center stage, the important concept of market power. The nexus of consumer welfare and market power is well established. Dominant firms have the ability to use their market power to either raise prices above competitive levels or restrict their rivals’ output. Such actions contribute to the detriment of consumers by reducing their welfare and by transferring wealth to producers.

Fair competition deliberations that attempt to determine the extent of a firm’s market power must begin with a clear definition of the relevant market. This is a necessary first step in arriving at an entity’s market share, which in turn is a proxy measurement for market power and dominance. In our jurisdiction, the threshold of excessive market power in merger investigations is a 40 percent market share.

Since this threshold has been exceeded in the proposed merger, regulators are now required by law to examine the legality of this agreement. To do so, they need to weigh certain factors. First, they must look at the structure of the market likely to be affected by the merger; second, they must determine the degree of market power and control that will be exercised by the enterprise concerned; third, they must determine whether this merger is likely to serve as a detriment to competition; and fourth, they must evaluate the likely impact of this merger on consumers and on the economy.

In analyzing the market structure for petroleum products, one will immediately recognize that there are two relevant markets to be considered in this merger; one upstream and the other downstream. The upstream market is currently dominated by BNTCL, an unregulated public monopoly, which offers, at a minimum rate of return, services that relate to the bulk receipt, storage, and delivery of petroleum products. The ownership and operations of this entity, post acquisition, will change to that of a regulated private monopoly that enjoys a guaranteed utility rate of return.

The downstream market is made up of two segments, one regulated and the other unregulated. In both of these markets segments BNOCL is the sole importer of petroleum products, except for LGP, aviation fuel and marine fuel. The regulated segment is one in which the Division of Energy controls the retail pump prices of gasoline, diesel and kerosene products, and which represents 48 percent of local throughput volumes. SOL already controls 70 percent of this segment.

The retail pump price in this segment is built-up from several sources that include government taxes (V.A.T. and excise) and a CESS of 22 cents per litre on gasoline and diesel. The CESS was introduced in 2009 as part of a loss recovery pricing mechanism, designed to halt the losses on the sale of gasoline and diesel, and to facilitate the recovery of earlier losses brought about by subsidies. The CESS currently generates 46 million dollars in revenue based on a yearly throughput of 1,242 million barrels of these fuels. Technically, the CESS component in the retail pump price should be discontinued when these prior year subsidy losses are recovered. But to use the CESS in the manner now chosen, so as to guarantee investor’s profits and returns, harms consumers and is a detriment to their welfare.

The unregulated downstream market segment is made up primarily of the heavy fuel oil (HFO) and to a lesser extent aviation fuel, two products used locally in the production of electricity. This segment is currently valued around $300 million at retail prices and represents 52% percent of the domestic throughput volumes. However, these throughput volumes and their associated revenues that accrue to BNTCL will continue their steady decline with the emergence of the green economy, and as BL&P makes more changes to its fuel usage and mix and retires large ageing generation plant.

The purchase of BNTCL puts SOL in a dominant position to capture in its entirety this large unregulated market segment. BNTCL currently owns and controls the pipelines which carry heavy fuel oil (HFO) from Holborn to BL&P generation plant at Spring Garden. This is part of a $140 million infrastructural investment it made by BNTCL in 2005. SOL, on the other hand, through its purchase of ESSO owns the HFO storage tanks. By combining these two entities, potentially gives SOL the complete control of the storage, delivery and ultimately the importation of all HFO entering the island.

The HFO market is characterized by a single supplier (BNOCL) and a single buyer (BL&P). SOL has had exclusive access to this market prior to 2005, through their purchase of Shell. But they lost it to BNOCL as a result of a controversial and contested Cabinet decision taken at the time, a decision that essentially denied them access to pipelines from Holborn to Spring Garden. The court ultimately ruled in SOL’s favour. SOL, naturally, would very much like to recover this market when BNOCL’s current contract with BL&P comes up for renewal in 2018 and this acquisition puts them in an unassailable position to do so. It will come, however, at an increase cost to consumers of electricity in terms of increased fuel charges, since the returns on capital will be higher than that of BNOCL.

BNTCL is an organization that is in steady decline. Apart from falling throughput volumes, revenues and profits, it has a debt overhang of $ 80 million owed to Republic Finance & Trust that will immediately become due as soon as this sale is completed. A financial makeover therefore was necessary to make this deal attractive to any private investor. First, it was deemed necessary to declare BNTCL an essential facility as a matter of public policy for at least the next 15 years. This means that no permission will be given for the duplication of these resources, even if it were feasible to do so. And second, it was necessary to shore up revenues and profits to achieve an acceptable utility rate-of-return. To do this, it was necessary to raise throughput fees across the board by 32 percent before completion of the sales and purchase agreement (SPA). This increase in fees contributes an additional 10 million dollars in profits and allows for a guaranteed risk free return-on- equity of around six percent. It also signals government’s imminent departure from the oil importing business. Notwithstanding assurances given, government can no longer offer value in the new supply chain and, consequently, would be unable to justify importing, storing and reselling oil products.

There are the many assurances being given to make this merger acceptable to the public and to regulators. These assurances are built around the central concept that nothing changes with this merger and that the transfer of ownership from public to private will be seamless. We are also assured that this merger will not harm consumers, change the market structure, or concentrate the market power of any given competitor.

It is now left to the regulators, through the enforcement of fair competition law, to verify these claims and ensure that consumers’ welfare is well protected.

However, to the average observe there can be no doubt that this proposed merger, if successful, will bring about a degree of concentrated market power and dominance that will be a detriment to competition and will reduce the opportunity for others to participate equitably. At face value, this merger is difficult to justify. But, there may be other mitigating factors that the regulators may consider to be in the best interest of the consumers and the economy, the effect of which may very well result in SOL being asked to give up part of the combined

BIM "Open Letter" Email Response to the FTC

Submitted by Barbados Integrity Movement (BIM)

Dear Ms. Sealy,

Having previously noted receipt of your correspondence of earlier today in reply to our (BIM) Open Letter to the FTC on several matters, one of grave concern being the redacted documents for the Public perusal at the offices of the FTC as well as lack of pertinent details in the thirteen (13) page “Summary Document”.

We note that this is the eve of the FTC’s stipulated date (March 8th, 2017) to receive public comments or submissions regarding the subject of the proposed sale of the BNTCL to the SOL Group a single potential purchaser of the sole National Petroleum product storage facility in the country.

In our letter we outlined and expressed our concerns that the FTC has not made the following information available to the Barbadian public:

  • The BNTCL sale to the SOL Group Summary Document MUST be a document prepared by the FTC after careful evaluation and perusal of the facts and information provided by the two entities (BNTCL and SOL Group) involved in the proposed sale and NOT that of the vendor the SOL Group having a vested interest in the purchase of the BNTCL!
  • Proposed “Agreed Sale Price” between the BNTCL and the SOL Group, please provide to the public.
  • Existing “Throughput Rate” being earned by the BNTCL as a Government owned entity, please provide to the public.
  • “Agreed Increase Throughput Rate” between the SOL Group and the Government of Barbados after the BNTCL Sale, please provide to the public.
  • Is the “Agreed Throughput Rate” fixed or floating for the “15 year Protection Period” that the Government has agreed to grant the SOL Group against other competition in the storage of Petroleum products in Barbados?
  • What mechanism was utilized to arrive at the “Agreed Increase in Throughput Rates” to the SOL Group?
  • Since the “Protection Period” agreed on behalf of the SOL Group is 15 years, what will be the estimated earnings of the SOL Group in throughput Rates over and above those of the current BNTCL  with an estimated annual profit of BD$80 MILLION (Est BD$ 1.2 BILLION over 15 years) in the scenario that the sale had not occurred?

In the absence of the above listed queries and against the backdrop that such information is pertinent to ALL Barbadians weighing in on this matter of National interest and concern in that the BNTCL remains until sold an “Asset” owned by the People of Barbados; and until such time as the FTC makes such information a Public Document, there can be NO closure to this matter!

What is the FTC evaluating and against what information?

What informed decision can the People of Barbados make in the absence of FACTS?

We the People of Barbados herein demand that the information requested above be presented to the public domain through the FTC for our edification and discussion with no less than four (4) Town Hall Meetings being held to discuss the effects of such a sale to a single party thereby creating a “MONOPOLY” and unfair competition in the Barbados Petroleum Market which will redound to increased pricing of the said petroleum products to Barbadians.

In this regard, we demand that the FTC acts with alacrity to address the stated concerns with clarity and equity  in the remit of the FTC Act mandating the powers of the FTC to represent the interest of the People of Barbados.

We look forward to your providing the People of Barbados and Electorate with the stated information requested herein within the next seven (7) days of today’s date.

Any divergence from the above will be a miscarriage of justice and at best failure to inform and protect the very populace for which the FTC was mandated and legislated through an ACT of the Parliament of Barbados.

We attach a copy of our Open Letter along with our evaluation of the “Summary Document” for your careful consideration with our many queries and concerns thereto attached!

Respectfully

Neil a. Holder

POLITICAL LEADER

"OPEN LETTER" to the Fair Trading Commission on the Proposed Sale/Merger of BNTCL

Submitted by David Comissiong, President,Clement Payne Chambers

ftc

CLEMENT   PAYNE   MOVEMENT

CLEMENT   PAYNE   CULTURAL   CENTRE

CRUMPTON  STREET

BRIDGETOWN

BARBADOS

25 January 2017

Ms Sandra Sealy

Chief Executive Officer

Fair Trading Commission

Green Hill

St. Michael

Dear Madam

Re: Proposed Sale of the Barbados National Terminal Company Limited and its proposed merger with the SOL Group of companies

I write this “Open Letter” to you as a Citizen and taxpayer of Barbados, and also in my capacity as President of the Clement Payne Movement of Barbados.

Over the past fortnight I have been approached by many individual citizens and residents of Barbados, and – in a more organized manner – by members of the Barbados Integrity Movement (BIM), expressing great concern about the proposed sale of the Barbados National Terminal Company Ltd (BNTCL), and its proposed merger with the Kyffin Simpson-owned SOL Group of companies. (I would also like to note for the  record that the BIM provided me with much valuable information about the proposed sale/merger.)

As you are aware, the statutory agency that you lead – the Fair Trading Commission – was established by the Government of Barbados in the year 2002, and was given a mandate to promote, maintain and encourage commercial competition in Barbados for the benefit of the Barbadian people. In addition, your agency was mandated to prohibit and prevent the restriction of competition and the abuse by large monopolistic enterprises of any dominant positions that they may acquire in any particular area of trade or commerce in our country.

It is also important to note that the other statutory agency with which we are concerned here – the Barbados National Terminal Company Ltd (BNTCL) – was established a mere four years earlier (in 1998) on the identical anti-monopoly principles of free and fair competition.

Indeed, the BNTCL was incorporated by the Government of the day following the closure of the Mobil Oil Refinery, and was designed to be a governmental corporation that would manage the storage and distribution of all gasoline, diesel, heavy fuel oil, kerosene, and aviation (jet) fuel imported into Barbados. And, as a governmental entity, BNTCL was required to relate to and service ALL of the private fuel and gasoline retail companies operating in Barbados on a basis of absolute fairness and equality.

Furthermore, the existence of the Government-owned BNTCL definitely benefitted the people of Barbados, in that the rate of return that BNTCL set for itself was a mere one-half of one percent, as against the previous rate of 12 per cent that Mobil charged when it ran the fuel storage facility! Thus, the state-owned BNTCL was not motivated by mere profit-making considerations, and instead set out to ensure that Barbadian consumers got the best prices possible for fuel products.

And so, over the past 18 years Barbados has consciously pursued a distinct state moderated anti-monopoly policy in the fuel distribution and retail sector of our economy, and this policy has worked well for our nation and people.

Now, however, there are signs that the “monster” of  private sector, profit driven, monopoly is rearing its ugly head in this sector of our economy.

At present, the fuel retail market in our country is controlled by a mere two companies – Rubis Caribbean which controls 30 per cent of the market, and the SOL Group which controls a massive 70 per cent of the market.

Now, this level of monopoly or oligopoly is extremely disturbing as it is: but, to make matters worse, we have recently learnt that the present Government – which was reelected to office in 2013 on a distinctly anti-privatisation platform – has entered into an agreement to sell the BNTCL (the company that owns and operates our nation’s only oil terminal) to the Kyffin Simpson-owned SOL Group, and to thereby bring about a “Merger” between the SOL Group of companies and BNTCL.

It is against this background that the Clement Payne Movement now hereby makes an official request that the Fair Trading Commission carry out a comprehensive investigation into this proposed sale of BNTCL to the SOL Group, with a view to exploring all of the possible “anti competition” and monopolistic implications of the said sale.

Indeed, we wish to remind the Fair Trading Commission that under Section 5 (I) (e) (III) of the Fair Competition Act, Chapter 326 C of the Laws of Barbados, the Fair Trading Commission possesses the power (and is bound by a statutory duty) to take such action as it considers necessary to prevent mergers that are detrimental to the principles that the Commission is mandated to uphold.

The Clement Payne Movement has paid very close attention to Section 20 of the Fair Competition Act, and we believe that this section of the Act provides your Commission with an excellent framework for analyzing the relevant facts and for ultimately determining that the incestuous sale of BNTCL to SOL must not be permitted to be consummated.

The relevant portions of Section 20 are as follows :-

(1)  From the commencement of this Act, all mergers by an enterprise that by itself controls not less than 40 percent of any market are prohibited unless permitted by the Commission in accordance with this section.

(Thus, in light of the fact that SOL already controls a massive 70 per cent of the market, a “prima facie” case already exists for prohibiting its merger with BNTCL ! Indeed, the Commission is obligated to begin the process with a preliminary decision in favour of prohibiting the merger – a decision that may only be reversed if there are really compelling reasons to do so!)

(2)  The Commission shall conduct an investigation into the proposed merger in order to satisfy itself that the proposed merger would not affect competition adversely.

(Mr Mauricio Nicholls, the CEO of Rubis Caribbean, has already publicly pointed out that competition will be adversely affected in that Rubis’ business in Barbados is dependent on the operations of the country’s only fuel terminal, and that with the proposed merger the said fuel terminal will be exclusively in the hands of Rubis’ sole competitor. One therefore cannot want any more  direct or compelling evidence of an adverse effect on competition than this!)

(3)  The Commission shall conduct an investigation into whether the proposed merger would be detrimental to consumers.

(SOL is a private sector company that operates on a profit maximizing principle, and that has to answer to its profit-demanding shareholders. No doubt, it will be driven by the desire to recoup the tens of millions of dollars it will have spent on acquiring BNTCL and by the additional desire to make a profit on its investment. Thus, only a purblind idiot would believe that such a sale and merger would not bring in its train  increases in retail fuel prices to the Barbadian consumer!)

(4)  The Commission shall conduct an investigation into whether the proposed merger will be detrimental to the economy.

(In the six years between 2011 and 2017 Rubis Caribbean purchased Chevron Texaco’s Barbados operations; invested an additional US $50 Million in Barbados; increased its number of service stations from 12 to 17; and is in the process of constructing its Caribbean headquarters building in Barbados. But, Mr Mauricio Nicholls, Rubis’ CEO, has publicly warned that if Rubis’ sole competitor – the SOL Group – is given the distinct and unassailable competitive advantage of owning the country’s only fuel terminal, that Rubis will have to reconsider remaining in Barbados. Therefore, the clear answer to the question is:- yes, the proposed merger would be detrimental to the Barbados economy!)

It should also be further noted that none of the factors specified in Section 21 of the Fair Competition Act for permitting a merger apply to this case. These factors are as follows:-

1.  A merger may be permitted if the parties establish that the merger is likely to bring gains in real efficiencies that are greater than the effects of the limitation on competition that are likely to result from the merger.

(It is difficult – if not impossible – to conceive of a more efficient arrangement than the one that exists now, with the state-owned entity fairly and even – handedly servicing all of the private sector retail companies, and at the same time looking out for the consumer by settling for a rate of return that is extremely modest and yet still sizeable enough to enable the enterprise to make a more than reasonable profit for the Government and people of Barbados. Thus, one CANNOT argue that the proposed merger will bring any gains in efficiencies, much less any gains that would be capable of off-setting the obvious ill effects of the limitation on competition that the merger would cause.)

2.  A merger may be permitted if one of the parties to the merger is faced with actual or imminent financial failure, and the merger represents the least anti-competitive alternative uses for the assets of the failing business.

(This is a total non-factor! Not only is SOL one of the richest, most powerful and most stable companies of Barbados, but no less an authority than Sir Frank Alleyne, Government’s former Chief Economic Adviser, has publicly described BNTCL as the “Crown Jewel” of all Government enterprises! Thus, neither one of these profitable and stable companies requires this proposed merger in order to survive!)

It is against this background therefore that we now call upon the Fair Trading Commission to do its duty and to protect Barbados and Barbadians from the spectre of unhealthy monopoly and the unholy restriction or distortion of competition that this proposed sale and merger portends.

We also remind the Fair Trading Commission that it is an INDEPENDENT entity that is governed by its own Act of Parliament, and that it not beholden to any particular Minister of Government or partisan political Administration.

We trust that the professionalism and objectivity of the Fair Trading Commission will shine through all of its dealings with this matter, and that there will be no need for recourse to the ultimate Review role that the Supreme Court of Barbados always reserves for itself in matters of this nature, particularly where duties are imposed and procedures stipulated by an Act of Parliament.

We now look forward to hearing from the Fair Trading Commission as soon as possible.

Yours faithfully

DAVID A. COMISSIONG

PRESIDENT

 

FLOW and DIGICEL Are SELF Regulating Entities

Digicel charging point

Digicel charging point

There is a new initiative in the market. Digicel has partnered with Adopt a Stop to provide charging points at bus shelters across Barbados – read about it Bus shelters getting charging points. The first thought was how long does one expect to be at a bus stop to be able to appreciate the value in charging a mobile device? Then reality struck with the realization that this is Barbados where we continue to struggle with public transportation. Recently the matter was robustly discussed in a forum with some of Barbados’ finest in the IT field and it resulted in some interesting information coming to the fore.

Every day Barbadians are inundated with messages from the mobile companies –the bigger faster network, the network with the fastest broadband speed, 3G,4G,4G LTE. To many Barbadians this is all greek, however, they are willing to part with their hard earned cash because it is fashionable to go with the FLOW these days.

There was agreement among some of the IT specialist in the discussion that Digicel and FLOW should allocate a chunk of their marketing dollars to improving customer service and infrastructure. We know this to be wishful thinking. Why do it if the penetration and usage rates in Barbados continue to increase?

The concern David (BU) raised in the forum was to question the role of the regulator (FTC) to independently certify that the two mobile networks are delivering on promises to consumers. Are the two networks delivering 4G services or 4G LTE for that matter? Does the FTC have a system in place to perform periodic quality assurance? How can consumers test that there is truth in the advertising by DIGICEL and FLOW.

Here is an interesting point made by one of the IT specialist:

Niel Harper David King, we would expect FTC to have a system for providing said quality assurance. As far back as 2011, both LIME and Digicel claimed to be delivering 4G services but were not. They did two things to trick an unsuspecting public:

  1. They used a weak loophole that the ITU permits whereby any organization that has deployed 3G+ and shows intent to move to 4G can claim that their network was 4G-ready for developmental purposes.
  2. They flashed the phones they sold to artificially display a 4G signal when they received a 3G+ signal.

So for almost 4 years, Bajans were told that both providers had 4G networks when they didn’t. And now the companies are really investing in 4G networks, and no one saw it fit to cite this as false advertisement back in 2011. Our regulators and government officials allowed this to happen.

David (BU) asked the IT specialist to unpack the above statement so that the non technical among us are able to understand:

The FTC or Telecoms Unit don’t employ independent assessors to validate the technology or speed of the network. Regulation is supposed to be technology neutral. That being said, a 3G network cannot crank up to 4G (it’s not technically possible). They are two different technologies; 3G is generally HSPA and 4G is LTE. 3G speeds go up to 168 Mb and 4G speeds go up to 300 Mb. And those numbers are theoretical because you will seldom get those speeds on a network you’re sharing with many users and is not sufficiently tuned or optimized. What they did is straight up fraudulent advertising.

In the same way there is a lack of financial reporting expertise in the traditional media the same applies to technology matters. The average Bajan does not know how to test for download/upload speed to keep the networks honest based on their package. The vast majority are happy to pay the bill and complain abut the service to the neighbour or work colleague.

Telecom operators generate millions of dollars annually off the backs of Barbadians. The least we expect is for our government to regulate the market with eyes wide open not wide shut. We have not forgotten the decision by the FTC to allow FLOW and C&W to merge therefore monopolizing the data segment of the market. In fact the market is still in chaos with many subscribers having to manage a two bill payment system because ostensibly FLOW continues to manage separate platforms while freely advertising as the single entity that is FLOW. We will observe if SOL is allowed to do the same to the petroleum market in Barbados given the recent sale of BNTLC. to SOL pending FTC approval –Sir Kyffin Simpson.

Many of the popular media practitioners have been co-opted by FLOW and DIGICEL to promote their products. And the media houses received significant advertising dollars from DIGICEL and FLOW.

What is the regulator doing to protect the consumer!

Follow the Facebook conversation with the IT professionals.

BL&P Denied!

ftcIt is with great interest BU read the decision handed down by the Fair Trading Commission to DENY the application by the Barbados Light & Power Company Limited (BL&P)  to apply the results and costs of Fuel Hedging to the Fuel Clause Adjustment (FCA). Some will argue that this is a pyrrhic victory given a prior decision by Barbadians to surrender the BL&P -a strategic national asset-  to the Canadian company EMERA.

We understand why a company like BL&P utilizes hedging to protect its revenue position given the volatility that exist in the oil market. What we do not understand is why BL&P would want to pass the cost of hedging and associated gains or losses onto the consumers of Barbados. Surely in the case of a company like BL&P hedging is considered a core strategy for managing the business. The application to pass the cost of hedging to the Barbadian consumer should be regarded as an insult to our level of intelligence.

Can one expect with BL&P’s application being declined that a fallback strategy will unfold? Many of us are acutely aware the Spring Garden generators are old as one example. We need our local INDEPENDENT analyst to share views on the state of the power supply and generation in Barbados. It is too important a matter to allow foreign interest to dictate.

On a tangential note we find the list of FTC Commissioners interesting read Andrew Willoughby and Kendrid Sargeant.

Here is the decision to deny the application of BL&P by the Fair Trading Commission of Barbados:

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DECISION

THE BARBADOS LIGHT & POWER COMPANY LIMITED’S

APPLICATION TO APPLY THE RESULTS AND COSTS OF FUEL HEDGING TO THE FCA

The Fair Trading Commission, having reviewed the Barbados Light & Power Company Limited’s (BL&P) Application to apply the results and costs of Fuel Hedging to the Fuel Clause Adjustment (FCA), has moved to deny said Application.

The Commission has determined that:

I. Due to the risks associated with fuel hedging, the BL&P should not be allowed to pass the cost of hedging and associated gains or losses onto the consumers of Barbados.

II. The Applicant has not provided enough evidence to suggest that the Barbadian public is willing to pay for the reduced volatility in fuel prices.

Following receipt of the Application on March 29, 2016, the Commission invited written submissions from interested parties, in accordance with Rule 37 of the Utilities Regulation (Procedural) Rules, 2003 (S.I. 2003 No. 104) (URPR). Five parties, who were granted intervenor status to participate in the process, considered the Application. Several issues of concern were raised by the intervenors, including hedging risk and strategy, related administrative costs and the efficiency of BL&P’s plant.

The Commission reviewed these submissions and also undertook a detailed analysis of the issues involved. This included a review of regional and international fuel hedging case studies, a simulation of fuel hedging within the local market and technical considerations related to the BL&P’s overall plant efficiency.

The findings illustrate that while the implementation of a hedging strategy could reduce the volatility of fuel prices, this potential reduction is often accompanied by a high risk of hedge losses. Also of concern to the Commission was BL&P’s lack of vital evidence to support its Application, such as a detailed hedging strategy and proof that the average Barbadian consumer would be willing to bear the costs associated with a reduction in volatility.

The Decision may be accessed here or obtained from the Fair Trading Commission, Good Hope, Green Hill, St. Michael, Monday to Friday, between 9:00 a.m. and 4:00 p.m.

December 29, 2016

Nekaelia Hutchinson-Holder
Information Specialist
Fair Trading Commission
Good Hope, Green Hill,
St. Michael
E-mail: info@ftc.gov.bb
Tel.: 424-0260

The Teacher: O to be Worthy

Ronald Jones, Minister of Education promised 3,000 bursaries...

Ronald Jones, Minister of Education promised 3,000 bursaries…

BU wishes to express disappointment no Barbadian teacher was nominated to be considered for the 2016 Global Teacher Prize. Thousands of nominations, with a capital T, were submitted from 148 countries.

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LIME FLOW and DAVID

Submitted by David Weekes

Dear Mrs. Sealy,
I write with reference to your response to my matter at caption – your reference #  4/14/20 (447). The reason that I have written is because i am so absolutely disappointed by your findings.

Miss Emily Ronalds, the Abbey School circa 1965 taught using the Royal Reader series (You should know it well, you attended that institution) She once told our class a story of “The Fox who was guarding the chickens” and these many years hence I am unfortunately reminded of this anecdote.

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Barbados Renewable Energy Program–A Case of the Tail Wagging the Dog

Senator Darcy Boyce, Minister of Energy

Senator Darcy Boyce, Minister of Energy

The Fair Trading Commission (FTC) recently ruled on the motion for review of the billing arrangement and metering option of the Renewable Energy Rider  (RER) – see FTC Order and Decision . The RER is a mechanism established by government to facilitate the sale of surplus electricity to the grid supplied by customers with Renewable Energy (RE)  systems.

The government of Barbados has committed to facilitate the RE sector as part of sustaining a new economy not overly dependent on traditional economic drivers. The growing energy bill of Barbados and dependence on fossil fuel is a concern. An important strategy therefore is to ensure the legislative and regulatory framework is expertly (sensibly) designed to encourage enthusiastic adoption of RE solutions. Key to a successful RE penetration is aggressive participation by RE providers and confidence by end consumers to embrace RE as a top of mind solution to satisfy energy needs.

For those who have been following the emergence of the local RE sector still at a nascent stage of development, several concerns have been raised by the early adopters.  The most recent FTC hearing attracted submissions from CARITEL, Sir Allan Fields, Dick Stoute, Williams Industries, Solar Watt Systems and John Haywards. Visibly absent from the process was a consumer organization.  Unfortunately the iterations embedded in the RER ‘decisioning’ process is bound up in technical language which the average Barbadian is inclined to leave to the experts to unravel. There is however a basic level of interest and participation all Barbadians should show as it pertains to the development of a national RE program.  We are after all described as an educated and literate group of people.

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FTC: Managing Energy Cost

It is estimated that the cost of electricity has doubled in Barbados since 2008. We are curious about the process of sourcing Bunker C to fuel Barbados Light & Power (BL&P) generators. How are the generators which use Bunker C integrated into the distribution of electricity to the benefit of the consumer? How has the price of Bunker C trended since 2008 and have Barbadians consumers benefited?

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Fair Trading Commission (FTC) Must Play Leadership Role Transitioning Barbados to RE

Hallam Hope - Managing Director of CARITEL

Hallam Hope – Managing Director of CARITEL

There is nothing surprising about a monopoly, namely EMERA, seeking to protect its commercial monopoly interests. That essentially is what the Renewable Energy Rider (RER) consultation paper is about. At issue though is whether the desired regulatory approval that serves a monopoly’s interest should be allowed to undermine the interest in the liberalisation and economic safeguards of a sovereign state. There is little doubt in my mind that based on the research and very small team assembled by my consultancy CARITEL that we do have the intellectual resources in Barbados to take the emerging Renewable Energy (RE) sector forward.

The Fair Trading Commission (FTC) clearly has its challenges or it would have done two things. Rather than pass the buck. It would have addressed the RER holistically meaning Fuel Clause Adjustment (FCA), RER etc as one issue and secondly, it would have come up with its own researched positions rather than tender an EMERA document for public comment.

This is a national issue of some significance not a request for a rate adjustment. We have the usual confusing mix of excellent information, disinformation and unresearched prattle.