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.