Bill on SMS fees unconstitutional – Globe

Globe Telecom has warned that the proposed bill prohibiting telecommunications companies from imposing fees and charges short messaging service (SMS) or text messaging between subscribers of the same telco is unconstitutional and would ultimately result in telcos possibly withdrawing text service if forced to render it for free.

In its position paper on House Bill number 456, Globe emphasized that free and unlimited texting as espoused by the proposed measure is not only reasonable but is confiscatory and oppressive as it amounts not only to taking of private property without just compensation but also to deprivation of property without due process of law.

Globe senior vice president for corporate and regulatory affairs Rodolfo Salalima explained that providing text service to the public costs billions of pesos in terms of capital and operating expenses, and to require telcos to provide the service for free would be unconstitutional since it is confiscatory and amounts to an actual impairment of a property right without just compensation. 

Citing the ruling of the Supreme Court in one case, Salalima said the right to compensation for services rendered is a property right, and that the right to earn a living is not only a property right but is part of one’s right to life.

He also pointed out that HB 456 is unconstitutional since it deprives telcos of property without due process of law. Rate fixing or lowering of text rates, he said, demands that the telecommunications rates to be imposed be reasonable, neither confiscatory, nor oppressive. “And because what is reasonable is a question of fact, rate fixing or lowering text rates to absolute zero in this case is judicial in nature or, in the least, quasi-judicial. Due process- notice and hearing – is never a unilateral act,” Salalima explained. 

He added that the proposed bill violates the constitutional right to equal protection since it singles out text service providers from among many public service providers.

Salalima also warned that on-net free text without any service fee or compensation will definitely be abused, and such abuse will impair public service in that it will clog, and ultimately, crash networks because the industry’s network capacities would not and will never be sufficient to absorb abused free and unlimited texts. 

“In addition, without any incentive (because free) to providing, improving, and maintaining text service, the service will simply not be there. Free and unlimited text means no text service at all. The cheaper text service therefore as an alternative to voice telecommunications becomes unavailing to the public and, thus, the public will be compelled to use the more expense voice communications,” he added. 

HB 456, it was also pointed out, contravenes the letter and spirit of Republic Act 7925 (Public Telecommunications Act) which speaks of fair, just, and reasonable rates; economic viability of carriers; private enterprise as engine of rapid and efficient growth; the Department of Transportation and Communications as responsible for calling the national consultative forum; and the residual powers of the National Telecommunications Commission on rate regulation.