THERE is now no impediment to the implementation of fixed-number portability (FNP) as a High Court judge has ruled that local telecom provider TSTT is legally obligated to allow fixed-landline customers to change their service provider without changing their number.
Already Justice Frank Seepersad’s ruling on Wednesday has been hailed by the Telecommunications Authority of TT (TATT), which was called on to defend a judicial review claim brought by Columbus Communications Trinidad Ltd (CCTL) over the FNP issue.
The authority’s CEO,Cynthia Reddock-Downes, in a telephone interview with Newsday, immediately after the ruling, said, “In our view it is important decision, a very significant one for Trinidad and Tobago, because now there is no impediment for the implementation of FNP.
“It is a victory for the public.”
Reddock-Downes said the issue of FNP was significant, but lamented that over the past four years, neither private citizens nor businesses could change service providers and keep their existing telephone numbers, because of TSTT’s insistence that it had no legal requirement to facilitate the process.
In 2016, Columbus Communications complained to TATT of TSTT’s non-compliance, calling on the regulatory body to exercise its statutory power to compel the state-owned telecoms provider to implement FNP.
It was argued that while TSTT has configured its equipment to permit FNP, it has not permitted CCTL or other operators to access its system.
In response, TATT directed TSTT to implement FNP, but TSTT insisted the regulations under the Telecommunications Act only required concessionaires to configure their networks to facilitate FNP, but there was no obligation to implement FNP.
Reddock-Downes said Wednesday’s ruling now meant that TSTT would be forced to commit to the regulations to allow customers to change service providers while keeping their existing numbers.
Although TATT came in for some criticism from the judge for its “tardiness” in taking appropriate action against TSTT, Reddock-Downes said the provider had, over those years, resisted the authority’s directions.
“We did all we could encourage TSTT to implement (FNP), which they refused to do.”
She explained the authority had to treat service providers fairly, and investigate and review all issues that arose, including TSTT’s complaints.
Reddock-Downes said despite TSTT being a majority-owned state entity, as far as the authority was concerned, “It was just another service provider.”
She said there were three avenues open to TATT to get TSTT to comply, but two would have resulted in its concession being either suspended or ending, which would have had national security implications, or instituting criminal proceedings against the company.
“We couldn’t consider those.”
Instead, TATT chose to approach the Attorney General for a fiat (formal authorisation) to approach the courts for an injunction to force TSTT to act.
Although the authority did approach the AG, it is still waiting for the fiat to be granted.
This issue was raised in the Court of Appeal in August. when TSTT resisted an early ruling by Seepersad to allow TSTT to be joined in CCTL’s lawsuit.
TATT’s attorney, Douglas Mendes, SC, had questioned why the fiat was not granted.
“Who owns TSTT, and why is the AG dragging his feet? TATT cannot come to court without a fiat from the AG, and he is not giving it,” Mendes had said.
Reddock-Downes said while TATT had not received that permission from the AG, the ruling was a “positive thing.”
“The court has now said TSTT has an obligation. We never had any doubt, in our mind TSTT was obligated, but (the decision) now settles the number-portability issue."
She said the whole protracted issue should not have happened and citizens should not have been denied the opportunity to get service at the level they wanted and should receive.
“Many people lost their numbers and a considerable portion of business had to retain their service providers.
"It took a very long time, but we are pleased with the outcome and the court’s ruling that TSTT has a legal requirement to do it (FNP.)”
In his ruling, Seepersad agreed that while TATT had the power to implement a cessation of any concession, a suspension or termination of TSTT’s licence would have led to a “monumental” fallout.
“The evidence has established that TSTT is this republic’s dominant fixed- line service provider. Consequently, the majority or at least a significant portion of the citizenry, through no fault of their own, would be deprived of their fixed-line phone service if any suspension or termination is imposed.
“Such a course may be both disastrous and debilitating as it could negatively impact upon society’s tenuous and evidently weakened socio-economic health. It may also pose as a threat to national security and so any such decision should be effected as an option of last resort.”
He also said if criminal proceedings had been taken against TSTT, if successful, this could have resulted in a one-off or continuous fine, but even on conviction, TSTT could maintain its refusal to implement FNP.
Seepersad added, “TSTT's misapprehension, whether genuine, or by convenient design, as to whether it was legally mandated to implement FNP, has been corrected.
He said TATT should have invoked the jurisdiction of the High Court sooner on whether TSTT was legally obligated to implement FNP.
“TATT is entrusted by Parliament with enforcement powers which must be exercised for the public good but it did not activate same for nearly three years.
“This inaction has instilled some disquiet in the court’s mind and it harbours a concern as to whether TATT may have factored into its extended forbearance, the fact that the Government of TT is TSTT’s majority shareholder. “
He said this case should catalyse a review of the approach by statutory bodies to regulate state entities.
“The existence of these types of arrangements can lead to conflicts of interest, violate the tenets of good governance and compromise the public’s best interest.”
Seepersad said now it has been determined that TSTT has a legal obligation to implement FNP, the court was confident TATT would be able to actively discharge its statutory obligations in the public’s interest.
“Trinidad and Tobago is a functional democracy which upholds the Rule of Law and the Court feels, with a high degree of assurance, that the Attorney General will discharge his constitutional obligation and notwithstanding Government’s shareholding interest in TSTT, the court has no reason to doubt that he will expeditiously, rationally and reasonably consider the fiat request made since 2019.”
Columbus Communications, which will receive 50 per cent of its legal costs, was represented by attorneys Stephen Singh and Amanda Adimoolah. Douglas Mendes, SC, and Gabrielle Gellineau represented TATT.
TSTT was represented by Senior Counsel Martin Daly, Christopher Sieuchand and Sashi Indarsingh.