CA dismisses telco’s appeal vs. NTC over frequency allocation

The Court of Appeals. (Photo from the Philippine Daily Inquirer)

MANILA, Philippines– The Court of Appeals (CA) has dismissed a petition filed by NOW Telecom Company Inc. (NOW Telecom) seeking to compel the National Telecommunications Commission (NTC) to abide by the order of the Anti-Red Tape Authority (ARTA) in connection with its application to operate a cellular mobile telephone service within specific frequency ranges.

ARTA, in its March 2021 resolution, said that NOW Telecom’s application for a provisional authority to operate in the frequency range 1970 Mhz – 1980 Mhz paired with 2160 Mhz to 2170 Mhz and 3.6 GHz to 3.8 GHz frequency ranges were automatically approved by operation of law, specifically Republic Act 11032, otherwise known as the Ease of Doing Business and Efficient Government Service Delivery Act of 2018.

The telecom company said despite the resolution, NTC “continue to unlawfully, unjustifiably and maliciously fail, refuse and/or neglect to faithfully comply with ARTA’s resolution and order of automatic approval, both dated 1 March 2021.”

In a 16-page decision, the CA’s Special Ninth Division, through Associate Justice Tita Marilyn Payoyo-Villordon said the telecom company was not able to show a “clear legal right” to the frequencies it sought and that there was no proof that the NTC was remiss of its ministerial duty.

“Considering that NOW Telecom failed to establish that it has a clear legal right over the concomitant frequencies, this Court is powerless to grant the remedy prayed for in the petition,” the CA said in its ruling dated September 28, 2023.

“We should, therefore, refrain from intervening in the discretionary functions and prerogatives of the Executive Department,” it said.

The CA added that the ARTA’s March 1, 2021 order remains in substantial dispute after ARTA itself issued a resolution dated June 17, 2022, reversed its previous ruling as it formally recommended the telecom company’s application for frequency assignment to the NTC.

“Undoubtedly, NOW Telecom’s right to be issued the concomitant frequencies is still in legal limbo,” the CA said as it noted of a pending appeal with the Office of the President.

The CA added that NOW Telecom failed to prove any ministerial duty on the part of the NTC, which it neglected to perform, to warrant the issuance of a mandamus.

Under the provisions of Republic Act No. 7925, also known as the “Public Telecommunications Policy Act of the Philippines,” it is NTC’s duty as the principal administrator of the said law, to take the necessary measures to implement its policies and objectives,” the CA said.

Specifically, the NTC was tasked to adopt an administrative process that would facilitate the entry of qualified service providers, among other responsibilities.

“We should therefore refrain from intervening in the discretionary functions and prerogatives of the Executive department. Moreover, considering that NOW Telecom failed to establish that it has a clear legal right over the concomitant frequencies, this Court is powerless to grant the remedy prayed for in the petition,” the CA added.

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