NTC’s Interesting (but Useless) Legal Interpretation

INQ7 reports that the NTC has adopted a legal interpretation of the term “valued added services” (VAS) as it is defined in the Public Telecommuncations Policy Act (RA 7925).  This is important to VoIP advocates because the NTC’s position would characterize VoIP services as VAS thereby dispensing with the expensive and time-consuming licensing process telcos had to go through to offer voice services.  At the center of the controversy is the phrase in the law which requres VAS to be an “enhanced service not ordinarily offered” by the telcos.  The Telcos claim that they already offer VoIP today and therefore, since they are “ordinarily offering” it to the public, then it cannot be VAS.

Well, the NTC through Dep. Comm. Jorge Sarmiento has put forward the proposition that services “ordinarily offered” by the telcos should be determined as of the time RA 7925 was passed in the mid-90’s.  The NTC reasoning goes like this: “Since none of the telcos were offering VoIP at that time, then it’s VAS today.”

Well, if we take that interpretation to the extreme can we can claim that any communications technology developed after the enactment of RA7925 can be characterized as VAS.  This would include new switching technology, MMS, GPRS and a whole range of emerging technologies.  Does NTC need to be so far-reaching in interpreting the law?  I don’t think so.

Moreover, engaging the telcos in a debate about interpretations of RA7925 is a trap that the NTC should avoid falling into.  The telcos have made it abundantly clear they will delay this issue in the courts by citing Constitutional grounds for opposing an open and competitive VoIP market.  By debating the legal minutiae with the telcos, the NTC is allowing the telcos to set the agenda for the fight.  I say avoid it and change the issue on the telcos.  I say the telcos are not entitled to stop the effectivity of any NTC order implementing market reforms because they suffer no irreparable injury thereby.  In court, a party is entitled to restraining order or injunction in cases where he will suffer irreparable injury.  But the telcos are merely exercising a privilege granted by the State.  In that sense, they have no property rights to their franchise and any changes made thereto by the State either by law or regulation does not give rise to any injury that the courts are duty-bound to protect.  This is the fight the NTC should take to the courts against the telcos.  And if they do, I think they’ll win.