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COUP FILES ANOTHER CLASS SUIT - September 22, 2009
The Cellphone Owners and Users of the Philippines (COUP) filed today another class suit for and in behalf of the more than 70 million subscribers that use Short Message Service (SMS) or “texting" and voice calls, both local and overseas, that will be taxed additionally in the event that a pending un-numbered consolidated House Bill is finally passed in the Lower House. This is the second class suit filed by COUP in its attempts to keep the cost of the cellphone service within reasonable level.
In July, 2009, COUP filed a case with the National Telecommunications Commission (NTC) against the three large mobile phone service providers, namely: GLOBE, SMART and SUN Cellular (TELCOS) for “vanishing loads, dropped calls, spam, delayed SMS, defective and erroneous billings, illegal charges of one-minute per pulse and other consumer related complaints."
The class action was filed in response to complaints which were brought to the attention of the Senate Committee on Trade and Industry on the existence of such practices by the TELCOS. COUP took up the cudgels for the millions of cellphone subscribers who continuously experience the same malpractices of the TELCOS as claimed by no less than the Senate President Juan Ponce Enrile and Vice President Noli de Castro.
After the filing of the initial class suit, the House of Representatives Ways and Means Committee approved on third reading the un-numbered consolidated House Bill proposing an excise tax on every Short Message Service (SMS), Message Service (MS), Multi-Media Service (MMS) sent from mobile phones and on every overseas dispatch, message or conversation originating from the Philippines which consumers found convenient as they provide them connectivity with their friends and family for personal and business communication needs.
The filing of the present class suit is premised on the existence of an issue of “primordial, transcendental and paramount importance to all members of the class plaintiffs" which has been considered by the Courts in some cases as enough reason for it to set aside standing requirements and allow a suit to prosper. “Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others’ acts, this Court nevertheless resolves to take cognizance of the instant petitions."
Named as defendants in the class suit are: Rep. EXEQUIEL B. JAVIER, Chairman of the Committee on Ways and Means of the House of Representatives, Rep. DANILO E. SUAREZ, and Rep. ERIC D. SINGSON, both members of the same Committee.
COUP Chairman Rod Domingo, Jr. said that it has decided not just to fight the malpractices of the TELCOS but also the proposed tax imposition which could place the service beyond what the ordinary subscribers can afford. It vows to take several courses of action to forestall imposition of tax on text.
The organization has not had the opportunity of presenting its stand on the proposed tax as it was never invited to do so. Though uninvited, COUP will endeavour to present the side of the cellphone users in both houses of Congress and their individual members.
COUP will be conducting a nation-wide signature campaign where existing SMS subscribers may register their opposition to the tax on text. During the campaign, COUP would be emphasizing to the text tax oppositors to remind their Congressmen that their vote on the measure will reflect the sentiments of their constituents, Domingo further announced.
The class suit is filed in order to prevent temporarily, and later on permanently, the illegal, prohibitive and unconstitutional imposition of an excise tax on SMS and overseas calls. The tax could make the cost of the service prohibitive since the total amount of additional taxes will eventually have to be passed on to the consumers. Also, it being an excise tax, it will add to the cost of producing or making the service available to the public. Inescapably, the amount of value added tax (VAT) levied will increase and be passed on the consumers as well.
If necessary, COUP will mount peaceful protest actions in key cities of the Philippines in order to dramatize further the unpopularity and opposition to the excise tax on text.
The National Telecommunications Commission (NTC) has been described by the former Secretary General of the NEDA as an agency long beseiged by the entities it was supposed to regulate. Under the 1987 Philippine Constitution "The State shall protect consumers from trade malpractices" but Mr. Neri, when he was still Secretary General of the NEDA was reported by the PDI as having made the following observation on the state of "regulatory capture" of regulatory agencies in the Philippines.
"In a rare display of candor, the government's main economic policy-maker yesterday said state regulatory agencies have been "captured"" by big business and working largely to benefit the latter instead of protecting the interest of the people.
"That's the problem. The interests of business have been very influential with the regulators," said Economic Planning Secretary Romulo Neri.
This is why people pay higher prices for goods and services offered by businesses that are supposed to be regulated by these state agencies, he said.
"The people are losing because they have to pay higher prices," said Neri who heads the National Economic and Development Authority."
Findings of a Senate Committee that conducted an investigation into "vanishing loads" have dredged solid evidence that the telecommunications watchdog has been rendered inutile by an injunction that has tied its hands over the last eight years rendering it unable to implement new rules that would have promoted the welfare of the consumers and supported just and fair rates of telecommunications service.
Some Senators have gone further by hinting that the ineffectivity of the NTC as a regulator supposed to carry out the State Policies provided by the 1987 Constitution points to collusion amon the regulators and the industry players. If Senator Enrile was not victimized by the "vanishing load" from his cellphone, this callous violation of consumers' property rights would have remained a silent agony of the small consumers who have been suffering this form of "digital robbery" since the mobile phones became a popular gadget in the Philippines. For indeed, why would the small consumers complain about small vanishing loads if they have to spend more money simply to complain to the authorities. And who would care to pursue such a minuscule or pennyante crime when multi-million scams in government transactions remain unpunished or simply sweeped under a rug.
With the current attention these telecom anomalies are getting from the media, it is about time that someone did something with the situation and litigate actionable issues against the telecoms regulator and the three major players.
The Cellphone Owners & Users of the Philippines, Inc. (COUP) which was organized and registered with the SEC in 200? will file a case against the NTC and other telcos based on the testimonies of various witnesses during the Senate Telco Hearings. Other cellphone owners that have experienced unfair treatment from the telcos similar to those experience by Senator Juan Ponce Enrile and Vice-President Noli de Castro are enjoined to submit their affidavits to support the Class Suit that will be filed by COUP for and in behalf of the consumers that have been subjected to unfair trade practices resulting from the collusion between the NTC and the three major telcos, Smart, Globe and Sun.
The Class Suit will be filed by Atty. Rod C. Domingo who has specialized in the prosecution of class suits. The most famous class suit where he participated in its litigation was the case of the Marcos Human Rights victims where he was one of the Filipino counsels representing the 1081 Claimants.
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