Derek Achong
A High Court Judge has declared that majority State-owned Telecommunications Services of T&T (TSTT) is legally required to implement fixed number portability (FNP) for fixed lines.
Delivering a written judgement, yesterday, Justice Frank Seepersad partially upheld a lawsuit from Columbus Communications Trinidad Limited (CCTL) against the Telecommunication Authority of T&T (TATT), over its failure to take enforcement action against TSTT on the issue.
In the lawsuit, Seepersad had to determine whether TSTT was legally bound to implement portability, under which customers are allowed to change their service provider while maintaining their unique telephone number.
Justice Seepersad rejected TSTT’s claims that the Telecommunications Act and TATT’s associated Regulations only required that it facilitate portability, not implement it.
“TSTT’s interpretation of the proposed amendment to Regulation 9 disregards the established interpretative requirement to avoid an interpretation which is absurd and its position defies common sense, commercial logic and is devoid of practicality,” Justice Seepersad said.
He also strongly criticised TSTT’s conduct while highlighting the importance of portability.
“TSTT’s resistance to the implementation of FNP must be strongly condemned and its behaviour instilled, in the Court, a feeling that it was prepared to engage in protracted and wilful defiance so as to protect its market share,” Seepersad said.
“Citizens should not be forced, frustrated or blackmailed into staying with a telecommunications provider because of fear of inconvenience or uncertainty. TSTT’s behaviour has been callous and calculating and must be roundly rejected,” he added.
After ruling that he was resolute in his view that TSTT had a legal requirement, Seepersad had to determine what reliefs, if any, should be awarded CCTL based on its success in its judicial review lawsuit against TATT.
Seepersad noted that TATT had three options available to it based on the circumstances- suspending TSTT’s concession, taking criminal proceedings against it or obtaining a fiat (formal permission) from the Office of the Attorney General to obtain injunctive relief in the High Court.
He noted that suspension of the concession was not desirable as it would potentially impact thousands of citizens, who currently utilise TSTT.
“Such a course would be disastrous and debilitating as it could negatively impact upon society’s tenuous and evidently weakened socio-economic health,” he said, as he described the option as a last resort as it may also affect national security.
Justice Seepersad also stated that criminal proceedings could not compel TSTT to comply as, at most, it could be slapped with a one-off fine and a continuing one.
He noted that TATT had correctly gone with the third option as it wrote to the AG’s Office in 2019 to get permission, which he (Seepersad) suggested should be forthcoming based on his decision in the case.
However, he questioned TATT’s delay in taking the action.
He also questioned whether the delay was due to the State’s role as majority shareholder of TSTT and suggested that if it was, a review of the regulatory framework should be considered.
“The existence of these types of arrangements can lead to conflicts of interest, violate the tenants of good governance and compromise the public’s best interest,” Justice Seepersad said.
While he was not required to grant any reliefs besides the declaration over TSTT’s legal obligation, Justice Seepersad still ordered TATT to pay 50 per cent of CCTL’s legal costs as he ruled that the lawsuit was not devoid of merit or academic. TSTT was ordered to bear its own legal costs.
According to the evidence in the lawsuit, CCTL brought the case after it expended $5 million to facilitate FNP but TSTT failed to abide by the December 31, 2017, deadline for the start.
Justice Seepersad allowed TSTT to be joined as an interested party. TSTT appealed but the Court of Appeal upheld Justice Seepersad’s initial ruling.
CCTL’s lawsuit came as another service provider, Digicel, filed separate legal proceedings against TSTT over allegations that it engaged in anti-competitive behaviour by refusing to facilitate porting requests from over 4,000 mobile customers.
High Court Judge Nadia Kangaloo declined to deal with the dispute, which she suggested was within TATT’s remit.
Digicel appealed but the Court of Appeal upheld her handling of that case.
CCTL was represented by Steven Singh and Amanda Adinoolah, while Douglas Mendes, SC, and Gabrielle Gellineau represented TATT. Martin Daly, SC, Christopher Sieuchand and Sashi Indarsingh represented TSTT.
