Next Mobile asks appellate court to reconsider decision on 3G issue

MANILA, Philippines - Telecommunications company Next Mobile Inc. (NMI) has asked the Court of Appeals to reconsider its decision that virtually ordered the National Telecommunications Commission (NTC) to grant to Lopez-owned Bayan Telecommunications the last remaining third generation (3G) mobile communications technology frequency.

In its motion for reconsideration and for leave to intervene in the case between Bayan and the NTC decided by the CA last March 22, Next Mobile noted that the CA decision is confusing since while it declared the formula adopted by the NTC in determining the 3G grantees as null and void, the court used the same formula to conclude that Bayan deserved the fifth and last 3G slot.

The NTC, in an order dated Dec. 28, 2005, granted the applications filed by Smart Communications, Globe Telecom, Digitel Mobile Philippines, and CURE for 3G frequencies but disqualified other applicants, including NMI and Bayantel, leaving one 3G slot unassigned.

NMI sought a reconsideration of the NTC decision but was denied. The company then filed with the CA a petition for certiorari on the grounds of grave abuse of discretion by the NTC, but was again rebuked. A motion for reconsideration of the CA decision was similarly denied. NMI then filed a petition for review with the Supreme Court which is still pending.

For its part, BayanTel filed a motion for reconsideration of the NTC decision but was also denied. The company then challenged the Dec. 28 order as well as the denial of its motion with the CA, which was initially dismissed by the appellate court.

BayanTel’s attempt for the CA to reconsider its denial proved successful when on March 22, the court declared that the NTC’s adoption of a rating system was illegal for non-publication but at the same time ruled that “if, arguendo, the NTC’s 30 point rating system was validly adopted, the NTC had no legal basis to deny BayanTel a slot in the five vacancies.”

The CA added that again assuming for the sake of argument that NTC’s ‘rating system’ was validly applied, BayanTel could not possibly be outranked by CURE, much less disqualified in the assignment of 3G frequency bands.

NMI said in its motion that because the CA concluded that the NTC went beyond its rule-making power when it utilized the rating system without the necessary requirement of publication, the award of 3G frequencies to Smart, Globe, Digitel and CURE is void.

It added that the CA erred when it said that what is principally at issue in Bayantel’s petition is not whether NTC erred in granting the four other applicants’ petition for 3G frequency bands but whether or not the NTC erred in denying BayanTel’s similar application, and that granting BayanTel’s application as a fifth assignee will definitely not affect the interests of the four other 3G frequency assignees.

NMI stressed that when the CA declared the assailed NTC order as null and void, it could not have awarded the fifth slot to BayanTel because of the finding that the entire process using the 30-point rating system was found to be contrary to law.

It also noted that courts have no power to arrogate unto themselves the power to allocate or assign radio frequencies, this power pertaining solely to the NTC.

NMI pointed out that while the CA has the power to examine if there has been a grave abuse of discretion in the exercise of a right or power, it does not have the expertise to dwell or decide on technical matters, as what it did in this case when it attempted to score BayanTel on the basis of the technical criteria fashioned by the NTC.

The company added that any such award of a 3G frequency to BayanTel violates the former’s right to due process, since neither NMI or any other party which appealed or challenged the assailed NTC order were impleaded in BayanTel’s petition nor given the opportunity to present their case before the CA.

It will be recalled that while one division of the CA granted BayanTel’s petition, another division ruled in a case filed by Multimedia Telephony Inc. (MTI) that the NTC cannot assign the last 3G slot to any applicant.