The Court of Appeals (CA) has affirmed with finality its decision denying a petition filed by the NOW Telecom Company Inc. which seeks to be the country’s third major telecommunications service provider.
NOW Telecom was asking the CA to compel the National Telecommunications Commission (NTC) to comply with orders by the Anti-Red Tape Authority (ARTA) allowing the petitioner to operate a cellular telephone service facility within specific frequency ranges.
In a four-page resolution penned by Associate Justice Tita Marilyn Payoyo-Villordon, the CA’s Special Ninth Division denied the motion for reconsideration filed by Now Telecom seeking reversal of the court’s September 21, 2023 resolution.
The ruling rejected Now Telecom’s petition for mandamun against the NTC and its former commissioner now Commission on Audit chairman Gamaliel Cordoba.
The appellate court found NOW Telecom’s motion for r consideration to be a “mere rehash” of its previous arguments which has already been addressed and ruled upon by the court.
“Clearly, NOW Telecom failed to raise new issues, interpose new compelling arguments or present new credible evidence in its MR which would warrant a reconsideration or reversal of our decision,” the CA ruling stated.
This latest CA decision came after the Supreme Court upheld the denial of NOW Telecom’s petition to prevent the NTC from enforcing the provisions of its memorandum circular imposing certain qualifications and restrictions with respect to the entry of new participants in the domestic telecom industry.
Consequently, NOW Telecom was defeated by Mislatel Consortium, a partnership between Udenna Corporation and China Telecom, in the 2018 bid for new major player in the telecommunications industry.
Mislatel subsequently transformed into Dito Telecommunity Corp.
In 2023, NOW Telecom secured a US$2.15-million grant from the United States Trade and Development Agency for the development and implementation of a mobile and fixed wireless network using 5G technology.
The petition for mandamus filed before the CA centered on NOW Telecom’s plea to compel the NTC to adhere to the resolution and order of automatic approval (OAA) issued by ARTA.
The company filed the petition under Rule 65 of the Revised Rules of Court, seeking to enforce ARTA’s resolution and OAA both dated March 1, 2021.
These ARTA documents declared NOW Telecom’s application for a provisional authority to operate in the frequency range of 1970 to 1980 megahertz (MHz), paired with 2160 to 2170 MHz and 3.6 to 3.8
gigahertz, as automatically approved by the operation of Republic Act (RA) 11032, also known as the Ease of Doing Business and Efficient Government Service Delivery Act of 2018.
However, the CA maintained that the applicant failed to show that it has a “clear and legal right” over the frequencies which NTC failed to assign.
The CA explained that ARTA’s resolution and Order of Automatic Approval (OAA) issued on March 1, 2021 directing the NTC to issue a provisional authority in favor of NOW Telecom to operate within certain frequency ranges is still in dispute as ARTA, itself, set aside the subject issuances in a resolution dated June 17, 2022.
In the said resolution, ARTA endorsed anew to the NTC NOW Telecom’s application for the assignment of frequencies for prompt disposition.
NOW Telecom sought reconsideration of the June 17, 2022 resolution, which ARTA denied in its resolution dated August 22, 2022.
ARTA’s March 1, 2021 resolution and order were the basis for NOW Telecom’s filing of the petition for mandamus before the appellate court.
The appellate court likewise held that NOW Telecom “did not prove any ministerial duty on the part of [NTC] which it neglected to perform.” It pointed out that RA 7925, or the Public Telecommunications Policy Act of the Philippines, entrusted NTC with the duty to take the necessary measures to implement the law’s policies and objectives.
“As the principal administrator of the said law, the NTC found in its Consolidated Order dated 28 December 2005 that NOW Telecom is non-compliant with the requirements under the law and disqualified it from getting an allocation of 3G frequency,” the CA declared.
“Hence, to order NTC through the instant Petition to immediately assign the frequencies to NOW Telecom, would mean that the Court would arrogate upon itself the expertise and discretion to determine whether NOW Telecom is qualified, much less, the best qualified among all other applicants,” it added.
The CA also explained that “it is the policy of the courts not to interfere with the discretionary executive acts of the executive branch unless there is a clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction.”
