CA denies NOW Telecom’s plea to compel NTC to issue permit for mobile phone service within specific frequency ranges

The Court of Appeals (CA) has dismissed the petition filed by NOW Telecom Company, Inc. (NOW Telecom) which wanted the appellate court to compel the National Telecommunications Commission (NTC) to issue a provisional authority (PA) to operate mobile telephone service within the firm's desired frequency ranges.

In a decision promulgated on Sept. 28, 2023, the CA said that NOW Telecom failed to demonstrate a clear legal right to the PA it sought and that the NTC had not neglected any ministerial duty on the issue.

“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 pointed out.

“Accordingly, the Petition for Mandamus (filed by NOW Telecom) is dismissed,” ruled the CA in a decision written by Associate Justice Tita Marilyn B. Payoyo-Villordon with the concurrence by Associate Justices Myra V. Garcia-Fernandez and Walter S. Ong.  

NOW Telecom’s petition was based primarily on the Marh 1, 2021 resolution and order of automatic approval (OAA) issued by the Anti-red Tape Authority (ARTA).

ARTA had declared that NOW Telecom's application for PA 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, particularly Republic Act No. 11032, the Ease of Doing Business and Efficient Government Service Delivery Act of 2018.

However, on June 17, 2022, ARTA reversed its ruling and forwarded the firm’s application to the NTC.

In denying NOW Telecom’s petition, the CA said that aside from the firm’s failure to demonstrate its clear legal right, the NTC – under RA 7925, the National Telecommunications Act, is granted the discretion to implement the law’s policies and objectives.

“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 said.

At the same time, the CA said 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.”

It also stressed: “Mandamus does not lie against the legislative and executive branches or their members acting in the exercise of their official discretionary functions. This emanates from the respect accorded by the judiciary to said branches as co-equal entities under the principle of separation of powers.”

Court records show that as early as December 2005, NTC already found NOW Telecom to be non-compliant and was disqualified from the assignment of 3G frequency bands due to unpaid supervision and regulation fees (SRF) and spectrum user fees (SUF) amounting to P2.6 billion.

In January 2006, NOW Telecom was issued a PA that was not specific to 3G and was premised on the condition on the payment of its outstanding SRF and SUF obligations.

In December 2017, NOW Telecom was assigned the 20MHz contiguous bandwidth, 3520 to 3540 MHz, under the 3.5 GHz on the same condition that it should settle its outstanding SUF and SRF.

The firm’s PA was extended until September 2020, also subject to the payment of SUF and SRF.  Records were bereft on the issue involving the settlement of the unpaid fees.