The National Telecommunications Commission (NTC) has asked the Court of Appeals (CA) to reconsider its writ of mandamus issued last month directing the agency to immediately comply with an order by the Anti-Red Tape Authority (ARTA) giving the News and Entertainment Network Corp. (Newsnet) the green light to operate and maintain interactive pay TV and multimedia services in the country.
In an 86-page motion for reconsideration, the NTC through the Office of the Solicitor General (OSG), asserted that the CA should have dismissed the petition for mandamus filed by Newsnet for being moot and for lack of merit.
The NTC headed by Commissioner Gamaliel Cordoba argued that there was no more ARTA order to implement since it has already reversed its February 12, 2020 ruling through an order issued June 17, 2022.
Newsnet sought the issuance of a writ of mandamus against the NTC by virtue of ARTA’s February 12, 2020 “Declaration of Completeness and Order of Automatic Approval in favor of Newsnet.”
But ARTA reversed its February 12, 2020 in compliance with the July 9, 2021 resolution issued by the Department of Justice (DOJ) which held that ARTA does not have the authority to issue the declaration of completeness and compel NTC to issue a Certificate of Public Convenience (CPC) including the use of frequencies.
The DOJ resolution has become final and executory as declared by the Office of the President (OP) in an order issuing an entry of judgment.
The OSG stressed that the said DOJ order has become “immutable, and may no longer be disturbed.”
“Now even assuming that the DOJ Resolution may not affect the rights of petitioner for not being a party to the proceeding for adjudication filed before the DOJ, as found by the Honorable Court, still, it is humbly submitted, however that the Honorable Court cannot close its eyes to the fact that said DOJ resolution, after it had attained finality, binds the ARTA,’ the OSG argued.
The ARTA, in view of the determination made by the DOJ, had even complied and issued its resolution dated June 17, 2022 setting aside the order dated February 12, 2022, the OSG added.
The OSG maintained that ARTA’s June 17, 2022 resolution should be considered a “supervening event” that would warrant the reversal of the CA’s decision.
The OSG further emphasized that Newsnet’s legislative franchise, R.A No. 8197 expired on August 9, 2021.
“Its failure to renew the franchise renders all its secondary authorities, permits and licenses arising from it revoked,” the OSG said.
The expiration of Newsnet’s legislative franchise, according to the NTC, legally prevents it from approving Newsnet’s application for a CPC and the use of frequencies.
Newsnet’s CATV system uses Local Multi-Point Distribution System (LMDS), a wireless service which makes use of the wireless frequency spectrum to relay its signal to its subscribers.
The NTC explained that a legislative franchise is a precondition to the issuance of authority for Newsnet to use radio frequencies under Section 1 of Republic Act No. 3846, (Radio Control Act).
The said provision stipulated; “No person, firm, company, association or corporation shall construct, install, establish, or operate a radio station within the Philippine Islands without having first obtained a franchise therefor from the Philippine Legislature.”
Since Newsnet’s 1997 Provisional Authority (PA) and the 2014 Application for PA were revoked upon the expiration of its legislative franchise, the OSG said, Newsnet can no longer use the frequencies assigned to it, or be allowed the assignment of frequencies.
In its ruling issued last month, the CA also did not give weight to NTC’s argument that Newsnet’s petition has been rendered moot and academic by the July 9, 2021 DOJ resolution.
The appellate court also dismissed NTC’s claim that due to the expiration of Newsnet’s legislative franchise on August 9, 2021, it can no longer be entitled to the issuance of a CPC to operate LMPDS.
The CA noted that the DOJ resolution was issued pursuant to the NTC’s referral of the matter under Presidential Decree 242 which prescribes the procedure for administrative settlement of disputes, claims and controversies between or among government officers.
Although the present case involves NTC and ARTA, both government agencies under the Office of the President, the CA noted that it also involves Newsnet, a private entity.
Thus, the CA said PD 242 is not applicable to the case.
With regards to the non-renewal of Newsnet’s franchise, the CA noted that the firm is not a public telecommunication entity but a cable /community antennae television (CATV) entity, thus, a franchise is not needed for it to be able to operate.
Prior to the controversy, the NTC granted Newsnet a provisional authority in January 1997 to operate and the same was extended repeatedly within the duration of its congressional franchise.
On July 2014, Newsnet filed an application before the NTC for the issuance of a CPC to install, operate and maintain a LMDS to deliver interactive pay television and multimedia services in South Luzon, North Luzon, Visayas and Mindanao in the 25.35 GHz -26.35 GHz frequency range with authority to charge rates thereto.
However, Newsnet filed a formal complaint before ARTA on December 23, 2019 against Cordova for violating the implementing rules and regulations of Republic Act No. 11032 or the Ease of Doing Business and Efficient Government Service Delivery Act of 2018.
Newsnet specifically accused Cordova of violating the provision of R.A which mandates a seven-day period for processing and approval of licenses, clearances, permits, certifications, or authorizations for the installation and operations of telecommunication facilities and services.