The Court of Appeals (CA) has declared final its 2023 decision that dismissed the petition filed by NOW Telecom Company, Inc. 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 its Sept. 21, 2023 decision, the CA declared 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.

In dismissing the petition filed against the NTC and its former commissioner now Commission on Audit Chairperson Gamaliel A. Cordova, the CA ruled: “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.”

NOW Telecom filed a motion for reconsideration. In a resolution issued on Feb. 29, 2024, the CA denied the motion with a ruling that the motion was “a mere rehash” from its previous argument in the petition which had been addressed and ruled upon.

“Clearly, NOW Telecom failed to raise new issues, interpose new compelling arguments or present new credible evidence in its MR (motion for reconsideration) which would warrant a reconsideration or reversal of our decision,” the CA ruled.

The resolution was written by Associate Justice Tita Marilyn B. Payoyo-Villordon with the concurrence by Associate Justices Myra V. Garcia-Fernandez and Walter S. Ong.  The three associate justices also issued the Sept. 21, 2023 decision.

Earlier, the Supreme Court (SC) had denied NOW Telecom’s petition challenging the circular issued by NTC on the qualifications and restrictions on the entry of a new major player (NMP) in the country’s telecommunications industry.

With the denial, NOW Telecom’s bid as NMP had been effectively foreclosed, particularly since the NMP had been awarded to Mindanao Islamic Telephone Company, Inc. (MISLATEL), now DITO Telecommunity Corporation.

NOW Telecom’s petition before the CA was based primarily on the March 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.”