CA upholds junking of NOW Telecom’s plea vs NTC over frequency row

The Court of Appeals (CA) has maintained its 2023 decision dismissing NOW Telecom Company Inc.’s petition for mandamus against the National Telecommunications Commission (NTC) concerning the telco's application for cellular mobile telephone service using specific frequency ranges.

In a four-page resolution, promulgated in February 29, 2024, the CA’s Special Ninth Division denied the motion for reconsideration filed by NOW Telecom to overturn the Appellate court’s September 2023 ruling.

In junking the telco’s plea, the CA noted that the points presented by NOW Telecom in its motion were a “mere rehash” of the arguments it raised in its earlier petition for mandamus.

“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 said in its resolution penned by Associate Justice Tita Marilyn Payoyo-Villordon and concurred in by Associate Justices Myra Garcia-Fernandez and Walter Ong.

Sought for comment, NOW managing director for Business Development Kristian Noel Pura told GMA News Online that the telco “will appeal this to the SC [Supreme Court].”

To recall, in its September 2023 decision, the CA Special Ninth Division ruled that NOW Telecom had not demonstrated a clear legal right to the frequencies it sought and that the NTC had not neglected any ministerial duty in the case. 

The CA’s 2023 decision stemmed from NOW Telecom's request to compel the NTC to comply with the resolution and order of automatic approval (OAA) issued by the Anti-Red Tape Authority (ARTA).

NOW Telecom had filed a petition for mandamus under Rule 65 of the Revised Rules of Court, seeking to compel the NTC and its then Commissioner Gamaliel Cordoba to adhere to ARTA's resolution and OAA both dated March 1, 2021.

The ARTA declared 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, was 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.

However, in a resolution dated June 17, 2022, ARTA reversed its previous decisions and formally recommended NOW Telecom's application for frequency assignment to the NTC.

NOW Telecom, in its mandamus petition, claimed a clear legal right to specific frequency ranges, alleging that the NTC had neglected its duty to assign them.

The CA, however, dismissed the petition for two key reasons.

First, NOW Telecom failed to demonstrate a clear legal right over the frequencies left unassigned by the NTC.

The CA noted that ARTA's June 17, 2022 resolution was not yet final, with an ongoing appeal before the Office of the President, indicating an unresolved dispute over NOW Telecom's entitlement to these frequencies.

Second, NOW Telecom argued that assigning the frequencies was a ministerial duty for the NTC, compelling mandamus.

However, the CA disagreed, citing the National Telecommunications Act or RA 7925, which granted the NTC discretion in implementing the law's policies and objectives.

Given the NTC's prior disqualification of NOW Telecom due to non-compliance with legal requirements, the CA asserted that ordering immediate assignment of frequencies would infringe upon the NTC's lawful discretion.

The CA said it upheld the principle that mandamus does not apply when public officers are required to exercise judgment in performing their duties.

The CA’s latest decision came on the heels of the Supreme Court’s ruling upholding the Appellate court’s 2021 ruling and 2022 resolution denying the company’s bid for issuance of an ex-parte temporary restraining order and/or writ of preliminary injunction (WPI) to prevent NTC from enforcing certain provisions of the said circular. —VAL, GMA Integrated News