What Justice Seepersad's ruling on fixed number portability means

The finding delivered by Justice Frank Seepersad on July 28 was clear: "The court hereby declares that TSTT is legally obligated to implement FNP (fixed number portability) and the parties shall be heard on the issue of costs."

What was at stake here and what does it mean for consumers? What are the likely next steps?

The first response came from TSTT, which immediately shot back with a press release, noting that, "The court made no mandatory order against TSTT."

That might be interpreted as PR-speak for "We haven't been ordered to do anything."

TSTT's role in this judicial review of telecommunications law was as "an interested party," it noted in response to Justice Seepersad's findings.

The judge reviewed the laws governing fixed number portability – a customer's right to choose a provider while retaining their phone number that was implemented by the Telecommunications Authority (TATT) in 2017 after multiple delays.

In August 2014, after many meetings and stakeholder consultations on the matter, TATT issued Determination 2014/01 which promised fixed number portability by May 2015 to be managed by a third-party clearing-house.

Jamaica implemented number portability in June 2015 and within nine months had handled 60,000 porting cases.

When the determination was issued, a clearing-house had been appointed but not contracted to handle the project.

That wouldn't happen until March 2016 (https://technewstt.com/bd1031/), when Porting XS was announced as the clearing-house for local number portability.

The agreement on mobile number portability was signed in February 2016.

Under the system, a ported number, once disconnected, returns to the network that originated it.

Numbers requested from a carrier are supposed to be given up without coercion to win the number back.

These rules operate under a gentleman's agreement, since the regulations governing the practice of porting numbers are still a matter of mutual agreement, not law.

TATT declined to answer questions about the status of the regulations and whether they had been properly gazetted.

The complaint that Columbus Communications lodged with TATT that led to Justice Seepersad's deliberations isn't the first time that a telecommunications competitor has fretted about TSTT's approach to number portability.

In July 2020, DigicelTT announced that it had filed a court injunction against TSTT, "To stop its rejection of thousands of their subscribers wishing to port their numbers to the Digicel network."

In requesting the court's intervention, Digicel noted that, "Between January to June 14, a total of 9,274 porting requests were submitted by Digicel. There were 2,223 rejections for the six-month period."

In December 2020, the court firmly bounced the Digicel matter to TATT, when Justices of Appeal Prakash Moosai and Vasheist Kokaram upheld the decision by Justice Nadia Kangaloo to defer the issue to TATT for specialist intervention.

In that matter, as with the Seepersad ruling, the porting issue falls between the cup of TATT as regulator and the lip of enforceable legislation by which a court might decisively rule.

Columbus may have proceeded with an eye on the torturous route the Digicel injunction effort took and began its complaint process with TATT who then took the matter before the court for judicial review.

A judicial review is a learned interpretation of active law and how it affects the case or complaint under consideration.

Justice Seepersad would have been guided by the active regulations governing the contracts of telecommunications companies operating in TT and their mutual agreements.

Determination 2016/01 issued on October 31, 2016 and November 28, 2016 governs the agreements between telecommunications providers for mobile and fixed number portability.

In Justice Seepersad's findings, he noted that on November 24, 2017, "TATT notified CCTL that it would commence enforcement of its Determination 2016/01, if concessionaires failed to implement fixed number portability by 31st December, 2017."

TSTT is, according to TATT's market research, the dominant provider of fixed line telephony in TT. That also means it has the most to lose from fixed number portability.

One of the provisions of Determination 2016/01 is the authority's option to fine a telecommunications provider $50,000 per day for non-compliance with the agreement on number portability.

In considering the scope of his review of the positions of Columbus Communications, TSTT and TATT, Justice Seepersad noted the following in his ruling.

"This court must first resolve the issue as to whether TSTT is legally obligated to implement FNP."

"If the court finds that it is not, then, the applicant's claim would be devoid of merit and would have to be dismissed."

TSTT contends via its submission to the hearing that it has spent $5 million on its network and is ready to implement FNP, but cannot do so in the absence of regulations.

In response to a letter from TATT on June 13, 2019, TSTT responded in part, "The general tenor of your letter suggests that TSTT bears the singular responsibility for the implementation of fixed number portability (FNP)."

"Any such notion is soundly rejected by TSTT, and the authority is hereby put to strict proof regarding the existence of any such legal or regulatory obligation, and the particulars of its allegations of any breach thereof."

In his resolutions, Justice Seepersad noted that as a telecommunications concessionaire, TSTT was obligated to adhere to regulations laid down by TATT.

He rejected arguments by TSTT that its fixed line business was dying in the absence of any stated statistical or empirical evidence of that assertion, and further noted that TSTT was represented and present at all deliberations on the implementation of mobile and fixed number portability.

While Justice Seepersad was constrained to the affidavits and evidential documentation supplied to him in making his judgement on the procedural matters he was asked to address, there are other issues that have an impact on this matter.

For one, there is the question of the relevance of fixed line access when TSTT has set September 30, 2021 as the date for the sunset of its copper-line telephony system, a project that has been underway, in fits and starts, since September 2018.

What replaces it is a system of fixed wireless broadband using 5G technology to deliver voice over IP connectivity.

Both Columbus and Digicel provide similar telephony connectivity over their fixed cable connections to customers.

In terms of technology, what constitutes a fixed line in 2021 is dramatically different from the traditions that have defined telephony for more than a century.

Customer adaptation and preference regarding these technologies also changes the business landscape.

Last week, I requested the termination of a TSTT copper-line delivered phone number I'd used for the last three decades.

This followed a six-month period in which the line had been put into maintenance mode, remaining completely unused for the entire duration of this final test period.

A new generation of phone users will probably consider the notion of a phone attached in a fixed position on a wall or desk with the same puzzlement that might attend two tin cans on either end of a taut string.

Justice Seepersad was not asked to have an opinion on an imminent future of digitally enabled telephony and considered the market and arguments put before him.

This is what he found.

"Many citizens, corporate and private, have used the same fixed line telephone numbers for decades."

"These numbers are an integral part of their existence, and a change of number can occasion significant distress, inconvenience and expense, especially for corporate citizens whose advertisements and marketing campaigns may have to be revised."

"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."

TSTT's terse response to his findings does not suggest that the company is done with the matter and TATT really needs to consider whether it has done enough work to establish clear lines between its regulations and laws that can be clearly enforced without protracted jousting in the courts.

As it stands, the regulations agreed on by TATT and local telecommunications providers sits between agreed rules for the game and the way it is being played in practice.

TATT has declared its position as umpire and the matter now sits on the desk of the Attorney General, with whom TATT has lodged a fiat since 2019, a formal authorisation to ask the courts to force TSTT to comply with its request for FNP compliance with an injunction.

The untidiness of the situation is further complicated by the roles of the players. TATT is a state regulatory agency. TSTT is a majority owned state asset. The Attorney General's office, also an arm of state governance, must now decide what to do in the wake of the independent findings of a justice of the Judiciary.