Digicel loses second round of porting dispute with TSTT

DIGICEL has lost round two of its legal battle against its main competitor, TSTT, over a complaint that TSTT was rejecting its subscribers who want to port (switch) their numbers to the Digicel network.

On Thursday last week, two appellate court judges upheld a judge’s ruling to stay Digicel’s complaint and refer the dispute to the Telecommunications Authority (TATT).

Justices of Appeal Prakash Moosai and Vasheist Kokaram on Thursday held that Justice Nadia Kangaloo was “not plainly wrong” when she stayed Digicel's complaint and referred the dispute the regulator for resolution.

In an oral decision delivered at a virtual hearing, Kokaram said the judge had a wide discretion and was entitled to take into account that TATT was a specialist body with skill and knowledge.

“There is no reason why the regulator cannot provide final or interim relief,” Kokaram said as he dismissed Digicel’s appeal of Kangaloo’s decision in July in which she stayed its complaint to allow TATT to mediate between the concessionaires.

Kokaram said under the Telecommunications Act, there was a requirement to refer disputes to the regulator.

He also said Kangaloo was entitled to take into account that TATT was a specialist body with skill and knowledge to resolve disputes.

“Number portability is one critical element of an open telecommunications market. Customers enjoy the convenience of service and equal access between operators through interconnected networks. It also enables customers to retain their unique telephone numbers on changing providers,” he said.

In her ruling, Kangaloo said it cannot be disputed that it was a dispute between “two titans in the local telecoms industry” and that TATT had a role to play in the matter. In analysing Digicel’s complaint, she said to determine if the conduct complained of amounted to an act of unfair competition, required an analysis of evidence “which was not an exercise the court has the luxury to embark on, to deliver appropriate remedies to the dispute.”

She pointed out that she was being asked to make findings on issues which would have an impact on all operators and to delve into these issues, would be to usurp the function of the TATT, which is mandated to monitor and regulate the telecoms industry and prevent anti-competitive actions.

“The evidence presented to this court in support of Digicel’s application for interim relief descends into world of codes and reasons. The court is being asked to interpret these codes and cross-reference them with such reasons and to make findings which this courts says will not only impact the parties hereto but all operators. There are other operators who have not had say in these proceedings,” she added.

Kangaloo said TATT, in letters to both operators, confirmed it is willing to facilitate meetings between the parties to resolve the dispute and ensure compliance with obligations under the concessions, legislation and regulations. She ordered the court proceedings stayed until such time as TATT exhausts its dispute resolution process.

Digicel had asked the court to restrain TSTT from “rejecting customer requests to port their mobile telephone numbers from TSTT to Digicel TT” for reasons other than what is contained in a February 2016 contract between mobile providers in TT.

Digicel also asked for an order to prevent TSTT from trying to dissuade its customers from looking to port to Digicel and also offered incentives of enhanced packages so they would stay. The application says TATT made it mandatory for mobile phone operators to facilitate portability.

The application said there was an “unprecedented increase in rejections by TSTT” during a six month period between January to June 14. It said a total of 9,274 porting requests were submitted by Digicel. There were 2,223 rejections for the six-month period.

Digicel alleged it suffered loss and damage by TSTT’s “unilateral decision” in May to suspend porting, saying it was a breach of TSTT’s contractual obligations under the supplier contract and was also in contravention of the Protection Against Unfair Competition Act (PAUCA).

TSTT’s position was that the court had no jurisdiction to determine the matters raised by Digicel and it sought an order that the court take no action. It also asked that the claim be stayed permanently and Digicel’s claim struck out.

At the appeal, Digicel’s attorney Jason Mootoo maintained TATT did not have the jurisdiction to hear the company’s complaint brought under PAUCA and breach of contract. He said even if Digicel’s argument was wrong, and TATT did have concurrent jurisdiction, the judge still erred by sending the complaint to a tribunal appointed by the authority and should have heard the claim before her.

Kangaloo was also faulted for not granting the injunction and for staying the proceedings. Mootoo also pointed out that TATT had no regulations on porting which only required concessionaires to configure their networks to facilitate portability when required to do so.

He said if the Telecommunications Act intended to deprive concessionaires of their unimpeded access to the courts, its statutory rights and its rights under PAUCA, then it needed to say so clearly but would produce “an absurd result.”

In his rebuttal, TSTT’s lead attorney, Martin Daly, SC, argued that TATT did have the powers to deal with the dispute, adding that it was “the prudent thing to do.”

“It is mandatory to have interconnection issues to go to resolution by TATT,” he said, adding that to send it to the regulatory authority was not “cutting down” Digicel’s right of access to the courts.

Kokaram said Digicel’s PAUCA’s claims did not deprive TATT from deal with the dispute of portability between concessionaires. He said TATT could consider the effect it had on concessions.

Digicel was ordered to pay TSTT's legal costs.

Also appearing for TSTT was attorney Christopher Sieuchand. Senior Counsel Deborah Peake represented TATT.