Bayantel wins 3G dispute with NTC at appellate court

Bayan Telecommunications, Inc. (Bayantel) has scored a victory at the Court of Appeals, which favored the Lopez-led company in its battle with the regulator to secure the country’s fifth and last third-generation or 3G mobile network license. The appellate court, voting 4 to 1, said the National Telecommunications Commission (NTC) should have awarded the spot to Bayantel five years ago. "The NTC, no doubt, gravely abused its discretion," the court said about the regulator’s decision to disqualify Bayantel. A 3G license allows a telecommunication firm to offer high-value services such as wireless broadband Internet. The court criticized the NTC’s bidding system, which it likened to a "beauty contest," used in 2005 to award the four 3G frequencies to Bayantel rivals Smart Communications, Connectivity Unlimited Resource Enterprise (Cure), Globe Telecom, Inc. and Digitel Mobile Philippines, Inc. The system used a 30-point grading system that evaluated companies based on track record, financial capability and technical know-how. The appellate court noted that Bayantel had been disqualified even if the NTC had never disputed its qualifications. The court said the grading system followed by the regulator under its own circular was only meant to determine the five most deserving companies for the 3G slots. Since Bayantel was in the top five, it should never have been disqualified and denied its 3G slot, it added. “[The NTC circular] is clear on this matter. The NTC shall evaluate all the applications and determine the best qualified applicants for the assignment of the 3G radio frequency," the court said. Sought for comment, the NTC said it would refer the case to the Solicitor General, which will act as its lawyer. "The NTC will abide by the honorable court’s decision on the matter," the agency said. Earlier this month, the NTC released the bidding rules for the last 3G license, allowing all market players to bid amid protests from Bayantel. In a new circular, the regulator said companies seeking to bid for the “spectrum fee" of the last 3G slot must send applications to determine eligibility. The 3G frequency band, it said, would be given to the most qualified bidder who will use it efficiently and effectively to meet public demand for telecommunication service, ensure universal coverage and foster a competitive environment. It added that it would consider the applicant’s track record, rollout plan and financial soundness. The minimum bid price for the annual spectrum user fee was set at P65 million. No deadline was set by the NTC for the applications. — NPA, GMANews.TV