The NTC, in an interlocutory order dated May 24, allowed cellular companies to set their own minimum service quality standards on their "innovative price plans" (including call and text unlimited plans) which shall be submitted to the commission prior to offering and shall be disclosed to the public through publication.
The order in effect amended NTC memorandum circular 07-06-2002 which required a seven percent grade of service (GOS) and a five percent drop call rate (DCR). This means that not more than seven out of every 100 calls shall fail on the first attempt and not more than five out 100 calls shall be prematurely and involuntarily terminated.
NTC commissioner Ronald Solis earlier explained that the new guidelines were prompted by the need to immediately address the network congestion brought about by the advent of unlimited service promos. He, however, clarified that for regular text and call services, the service standards under MC 07-06-2002 will still apply.
In its motion for reconsideration, Innove assailed the May 24 order as null and void as it maintained that the NTC invalidly and irregularly exercised rule-making powers and violated due process.
Piltel, in its earlier motion for reconsideration and clarification noted that the May 24 order is ambiguous, unconstitutional being violative of the right to equal protection, and violative of due process.
Innove added that the order violates the equal protection clause of the constitution since cellular mobile telephone service (CMTS) operators similarly situated like Extelcom, Globe Telecom, and Smart Communications are not covered by the new rules as they are not parties to the case.
The interlocutory order was issued by the NTC pending final resolution of an administrative case filed by Piltel and Innove against Digital Mobile Philippines Inc. (DMPI) which owns and operates the Sun Cellular brand. Piltel and Innove questioned DMPI’s 24/7 call and text unlimited offering since it adversely affected Sun’s service quality to below the minimum standards required by MC 07-06-2002.
Innove said that instead of deciding on the rights and duties of the complainants and respondent DMPI in the main case, the NTC issued a new set of rules which "are totally alien to and contrary to the facts and evidence submitted and in the arguments and discussions in the hearings simply to favor the complainant."
"Indeed, in one stroke, the commission effectively repealed/modified NTC MC 07-06-2002 in utter violation of the rules prescribing the valid exercise of its rule making powers," the company noted.
Innove claimed that the NTC violated due process when it issued the new set of rules last May 24 without prior notice to the public and affected parties, and when it failed to set hearings where the public should have been invited and allowed to participate in its deliberation. It added that the new rules should also be published before becoming effective for the people to be officially informed of its contents.
In its motion, Innove likewise pointed out that the new rule violated the constitutional guarantee on equal protection since it effect absolved Digitel of its violation of the old MC on service performance standards while the rest of the CMTS operators were not.
"Why would then Digitel be tolerated not to upgrade and expand its network just like the others to comply with MC 07-06-2002 and comply to provide the quality standards to its customers,"it said.
It likewise stressed that contrary to its pretensions that the May 24 is an interlocutory order, said order leaves the NTC nothing more to do in a span of two years when operators must meet NTC’s mandated standard of seven percent GOS and DCR of five percent. "In fact, there is no more expected action from the commission or from the litigants even after the two-year period. Indeed, this order is for all intents and purposes a final determination and adjudication on the merits of the case," Innove maintained.
An interlocutory order is defined as one that does not terminate or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. Innove claims that the said order in effect disposed of its case and that of Piltel against DMPI and is in effect a judgment or final order.
If indeed it is a final order, Innove said that said interlocutory order did not meet the requirements of procedural due process since it has no law or rule to support itself, nor is it based on the evidence presented.
Piltel, in its earlier motion, said that the said May 24 order which purports to be an interlocutory order adjudicates an issue which is not merely incidental but germane to the controversy between the parties.