NTC asked to dismiss case vs Sun Cellular

Gokongwei-owned Digitel Mobile Philippines Inc. (DMPI) has asked the National Telecommunications Commission (NTC) to deny for lack or merit the complaints filed by Globe’s Innove Communications and Smart’s Pilipino Telephone Inc. or Piltel against Sun Cellular’s 24/7 call and text unlimited offering.

DMPI, in its answer to Innove and Piltel’s complaints, accusing the two of not having the legal standing to complain, considering that they do not have the required franchise to operate a cellular mobile telephone system (CMTS).

Digital Telecommunications senior vice-president William Pamintuan likewise stressed that with Globe’s Touch Mobile offering its own call and text unlimited offering for P300 and with Piltel to follow suit, the issue has become moot and academic.

The NTC is scheduled to meet with representatives of Innove today (Monday) and Piltel tomorrow to hear their respective arguments, together with DMPI’s own defense, after which the commission will have to decide whether or not to grant the two complainants’ petition to have DMPI’s offering permanently enjoined due to discriminatory and unfair competition practices.

NTC deputy commissioner Jorge Sarmiento earlier told The STAR that they will also have to verify claims by Innove and Piltel that the service standards of Sun Cellular are below that required by the commission, violation of which will merit either suspension or revocation of Sun’s authority to operate.

DMPI noted that it is Isla Communications, the former subsidiary of Globe Telecom, and not Innove which has the congressional franchise. It alleged that there is no showing that Islacom secured prior congressional approval to transfer or assign its franchise to or merge with Innove.

It added that assuming that Innove was authorized by the NTC to operate a CMTS, said authority is void for having been issued to an entity that does not have the requisite congressional franchise to install, operate, and maintain telecommunications systems and services in the country.

Last Aug. 7, 2003, the NTC approved the legal transfer of Islacom’s wireless or landline business, authorizations, assets, properties, and obligations to Globe. Then on Aug. 25, 2003, Innove officially came into corporate existence as the new Islacom, DMPI claimed.

The operator of Sun Cellular likewise noted that contrary to Innove’s claim that it operates and maintains the Touch Mobile brand, the TM brand is actually owned, operated, and maintained by Globe.

"Since Innove is actually in the landline and wireline data business which is a totally different business from Sun’s mobile phone business, therefore Innove cannot possibly suffer injury from and have a cause of action for predatory pricing against Sun’s 24/7 call and text unlimited service," DMPI said.

As to charges or predatory pricing, DMPI noted that NTC did not set a minimum but only a maximum rate for allowable Digitel-to-Digitel calls and texts. "The fact that NTC did not set a floor on Digitel’s CMTS rates only shows that in its reasonable assessment, there was no threat of a monopoly or combination in restraint of trade or ruinous competition or rate distortion which would result in the public becoming adversely affected," it said.

The Gokongwei mobile unit likewise stressed that rates for CMTS are now deregulated under NTC Memorandum Circular no. 13-6-2000 with the lapse of the temporary restraining order issued by the Quezon City Regional Trial

Court and without any injunction having been subsequently issued.

It was also noted in DMPI’s answer that Innove’s complaint is a desperate attempt by the latter to muddle the real issued based on Paptelco and PT&T’s complaint against Innove’s toll-free service.

Similar arguments were raised by DMPI in relation to Piltel’s complaint, which the latter claimed are baseless.

Piltel noted that it has complied with all the regulatory requirements in order to provide mobile phone services using Smart’s GSM network.

It pointed out that Piltel’s authority to install, maintain and operate, purchase, manage, or in this case lease telecom facilities is explicitly stipulated in its legislative franchise (Sec. 16 of RA 6030).

In line with this, it said then NTC commissioner Joseph Santiago informed Piltel in his letter dated March 28, 2000 that "the NTC finds the planned implementation of the facilities service agreement (where Piltel will use a portion of Smart’s GSM network and facilities in order for Piltel to be able to offer GSM-based CMTS services) to be compliant with existing rules and regulations."

This communication was in response to Piltel’s letter of March 24, 2000 informing the NTC that Smart and Piltel entered into a facilities service agreement wherein Smart agreed to provide the necessary facilities and equipment to allow Piltel to offer GSM technology-based CMTS services.