THE Court of Appeals (CA) has granted the plea of telecom giant Smart Communications Inc. for the issuance of a temporary restraining order (TRO) enjoining the National Telecommunications Commission (NTC) from enforcing its order to refund its subscribers amounting to more than P7 billion for overpriced text-message rates.
In a five-page resolution penned by Associate Justice Priscilla Baltazar-Padilla, the CA’s Sixth Division held that Smart is entitled to a TRO under the equal protection of laws doctrine.
The CA noted that the appellate court has already issued the same in favor of Digitel Philippines Inc. and Globe Telecom Inc., which are also questioning the NTC order.
“We find that Smart, which is similarly situated as the two other telecommunications companies, is also entitled to such injunctive writ,” the CA ruled.
Like in its ruling in the case of Digitel, the CA said the recovery of the amount to be disbursed by Smart in favor of its subscribers might be impossible in the event that the NTC decision and resolution are set aside.
“To our minds, justice would be better served if the implementation of the NTC decision is restrained at this stage of the proceeding, especially that those who recently intervened in the case, had already moved for the issuance of a writ of execution,” the CA said.
“To prevent any irreparable injury that Smart may sustain in view of the enforcement of the impugned decision, it is more judicious to preserve the status quo, pending determination of the propriety of the issuance of the questioned judgment,” it added.
It agreed with the contention of Smart that there is no means to efficiently implement the order since it would be very difficult to determine the identities of the prepaid users.
In seeking the issuance of a TRO, Smart argued that it would suffer a considerable loss if the NTC order is not enjoined as it has to refund billions of pesos directly to its million subscribers.
It added that it will also take some time to produce the data and record for its SMS services, citing the volume of data going through the network.
The process, according to Smart, will compel it to make individual computations of every amount due per subscriber based on the number of regular SMS they sent to other networks starting December 1, 2011, up to present, including the determination of whether or not they availed of existing promos or bucket rates.
The TRO, will be in effect for a period of 60 days and upon payment of the amount of P500,000 cash bond.
Earlier, the appellate court granted the same relief in favor of Globe and Digitel.
It can be recalled that the NTC issued separate orders on November 20, 2012, directing mobile phone companies to immediately refund and cut text-messaging charges to P0.80 from P1.
Covered by the order were Globe Telecom, Smart Communications Inc. and Digitel Philippines Inc., which operates Sun Cellular.
The NTC also ordered the three telco companies to refund or reimburse their subscribers these excess charge of P0.20 per off-net SMS from the effectivity of the memorandum circular until fully settled, by crediting the load of prepaid subscribers or effecting the refund through the respective bills for postpaid subscribers.
In its petition, Globe questioned how the NTC order can be effectively implemented.
“To whom will the P0.20 refund per text be given, when the identities of the prepaid users are unknown, and the great overwhelming majority of the prepaid market have long been using and continue to use unlimited [instead of piso-per-text] services?” Globe asked.
It added that the company is also uncertain on how much should be given to each prepaid subscriber considering that neither Globe nor the other cellular mobile telephone service providers have any way of knowing how much each of the million subscribers had consumed in prepaid loads in the past.
Globe added that the NTC’s order is putting into jeopardy the financial viability of the entire telecommunications industry and the public will likely suffer if it is not enjoined.