TSTT wins appeal over TATT’s failure to consult on price caps

Derek Achong

Se­nior Re­porter

[email protected]

Ma­jor­i­ty State-owned telecom­mu­ni­ca­tion provider Telecom­mu­ni­ca­tions Ser­vices of Trinidad and To­ba­go (TSTT) has won its ap­peal over the fail­ure of the Telecom­mu­ni­ca­tions Au­thor­i­ty of Trinidad and To­ba­go (TATT) to con­sult be­fore is­su­ing price caps for in­ter­con­nec­tion ser­vices be­tween ser­vice providers.

De­liv­er­ing a judg­ment last week, Ap­pel­late Judges Pe­ter Ra­jku­mar, Ge­of­frey Hen­der­son and Ricky Rahim par­tial­ly up­held an ap­peal from TSTT over the dis­missal of its case over the is­sue.

While the ap­peal pan­el found that TATT had the ju­ris­dic­tion to set the price caps based on in­ter­na­tion­al cost­ing bench­marks, it ruled that the TATT failed in its du­ty to con­sult with TSTT and oth­er ser­vice providers be­fore im­ple­ment­ing such.

The case re­lat­ed to a de­ter­mi­na­tion is­sued by TATT in March 2021, un­der which it stat­ed that all con­ces­sion­aires in­clud­ing TSTT, shall of­fer in­ter­na­tion­al ter­mi­na­tion rates for fixed and mo­bile in­ter­con­nec­tion ser­vices to oth­er lo­cal op­er­a­tors.

The de­ter­mi­na­tion was based on an In­ter­con­nec­tion Bench­mark­ing Study (IBS) in the lo­cal telecom­mu­ni­ca­tions sec­tor pub­lished around the time it (the de­ter­mi­na­tion) was is­sued.

TSTT filed the law­suit as it claimed that the TATT breached its du­ty to con­sult un­der the Telecom­mu­ni­ca­tions Act.

In de­ter­min­ing the ap­peal, Jus­tice Ra­jku­mar, who wrote the judg­ment, stat­ed that while the au­thor­i­ty con­sult­ed prop­er­ly for bench­mark­ing stud­ies pre­pared in 2017 and 2019, it did not seek to do so for the de­ter­mi­na­tion that was to ap­ply be­tween 2021 and 2024.

Jus­tice Ra­jku­mar not­ed that con­sul­ta­tion was not re­quired for the cost­ing method­ol­o­gy used in the study, as there was ad­e­quate con­sul­ta­tion in pre­vi­ous stud­ies and it (the method­ol­o­gy) re­mained un­changed.

How­ev­er, he not­ed that there were ma­te­r­i­al charges to the pric­ing in the most re­cent study that was not dis­cussed by the par­ties be­fore the de­ter­mi­na­tion was is­sued.

“While TSTT may have had the op­por­tu­ni­ty to com­ment on the pre­vi­ous con­sul­ta­tions about the method­ol­o­gy of bench­marks and price max­i­ma, it was nev­er pro­vid­ed with an op­por­tu­ni­ty to com­ment as to how spe­cif­ic rates for the spe­cif­ic ad­di­tion­al pe­ri­ods based on bench­marks, which in­clud­ed dif­fer­ent ju­ris­dic­tions, could have im­pact­ed it,” Jus­tice Ra­jku­mar said.

“The con­creti­sa­tion of those pro­posed rates re­quired at least an op­por­tu­ni­ty for con­sul­ta­tion as to whether or not they would al­low TSTT to cov­er its own costs, or to in­di­cate whether those rates re­quired in­ter­con­nec­tion to be pro­vid­ed by it with the re­cov­er­able costs of do­ing so be­low TSTT’s own costs,” he added.

De­spite the find­ing, Jus­tice Ra­jku­mar dis­missed TSTT’s claim that the de­ter­mi­na­tion un­der­mined the pol­i­cy of the leg­is­la­tion that es­tab­lished the au­thor­i­ty.

“It was in fact en­tire­ly con­sis­tent with TATT’s per­for­mance of its role as reg­u­la­tor, and its statu­to­ri­ly man­dat­ed func­tion un­der the Act to guide the trans­for­ma­tion of the telecom­mu­ni­ca­tions sec­tor from vir­tu­al mo­nop­oly to a com­pet­i­tive en­vi­ron­ment, and pro­vide the con­di­tions for an open mar­ket, and the fa­cil­i­ta­tion of the or­der­ly de­vel­op­ment of the sec­tor,” Jus­tice Ra­jku­mar said.

He said that the de­ter­mi­na­tion and study was not il­le­gal or un­law­ful.

“There was noth­ing ir­ra­tional, un­rea­son­able or un­fair in the use of in­ter­na­tion­al cost­ing bench­marks,” he said.

How­ev­er, due to the lack of con­sul­ta­tion, he grant­ed an or­der quash­ing the de­ter­mi­na­tion.

He di­rect­ed that the au­thor­i­ty pub­lish the 2021 IBS and a draft de­ter­mi­na­tion for con­sul­ta­tion in ac­cor­dance with its con­sul­ta­tion pro­ce­dures and time­lines.

TSTT was rep­re­sent­ed by Ja­son Mootoo, Tama­ra Toolsie and Sashi In­dars­ingh.

TATT was rep­re­sent­ed by Deb­o­rah Peake, Ravi Heffes-Doon and Sav­it­ri Sookraj-Be­har­ry.