CA junks plea asking NTC to clear up SMS-VAS issue

The Court of Appeals has denied the petition for mandamus filed last year by former Senator John Osmeña seeking to compel the National Telecommunications Commission to issue a memorandum categorically defining the short message system (SMS) as a value-added service (VAS) of telephone service providers. In a 15-page decision penned by Associate Justice Celia Librea-Lealogo, the CA 17th Division ruled that although Osmeña has sufficiently proven his legal standing in filing the case, he has failed to exhaust all possible legal and administrative remedies available to him before seeking the intervention of the courts last March 2007. Mandamus is defined as a writ commanding a tribunal, corporation, board or person to do the act required to be done when it or he unlawfully neglects the performance of an act. According to the CA, the extraordinary remedy of mandamus may be resorted only when there is “no other plain, available, speedy and adequate remedy in the course of law." Osmeña, the author of Republic Act 7925 or the Public Telecommunications Policy Act of 1995, asked the CA to compel the NTC to comply with the July 26, 2004 decision of the Supreme Court in Globe v. NTC and to issue a memorandum circular defining SMS, or more popularly known as “texting." The former senator also asked the CA to order the government body to comply with RA 7925 requiring no cross subsidies between a telephone company and a value-added service provider. He said the NTC has not responded to finally settle the issue. In his petition, Osmeña said that there should be no cross-subsidies between a telephone company and a VAS provider and that when the telephone company is also a VAS provider, there should be separate books of accounts. Otherwise, there will be a virtual monopoly or cartel controlling the SMS business. “If the SMS is a value added service or enhanced service under NTC memorandum circular no. 8-9-95, the same requires the approval of the Commission before the same may be offered. On the other hand, if SMS is a deregulated special feature under NTC memorandum circular no. 14-11-97, offering the same does not require the approval of the Commission," Osmeña said in his petition. Likewise, Osmeña said, if the SMS is to be considered a VAS, then there is no need for a prior legislative franchise for a business entity to provide the service to its customers and small businesses will have the opportunity to enter the market. On the other hand, if the SMS is to be considered a deregulated special feature, then only those business entities with a legislative franchise to engage in the telecommunication industry may provide the service, he said. Osmeña argued that if SMS is to be treated as a value added service, the big companies currently offering SMS to their subscribers will have to interconnect with small companies also offering SMS to their subscribers. If SMS is, however, treated as a deregulated special feature, there will be no need for interconnection and the small companies will not be able to offer SMS unless they obtain a legislative franchise. The confusion over the nature of SMS started in June 1999 when Smart Telecommunications Inc. filed a complaint against Globe Telecom Inc. before the NTC. Smart alleged that Globe Telecom refused to interconnect its network with it and it sought to compel Globe Telecom to interconnect their respective networks. The NTC then issued the usual show cause order informing Globe about its alleged refusal to interconnect. On July 19, 1999, the NTC issued an order declaring both companies “equally blameworthy" for their failure to interconnect. The Commission also held that SMS is a value added service or enhanced service under NTC memorandum circular no. 8-9-95, and that both companies were providing SMS without authority from the Commission. The NTC also held that since SMS was a VAS or enhanced service, interconnection was mandatory under Executive Order no. 59. - GMANews.TV 1. Sumilao farmers to march to Palace again Monday 2. Senate to subpoena 3 of 4 members of ‘greedy gang’ 3. Cayetano ‘reluctant’ to call probe into SouthRail project 4. ATO starts probe into Plaridel plane crash 5. Ginobili boosts Spurs to 8th straight victory