Court of Appeals lets Extelcom oppose MTI bid for 3G frequency

MANILA, Philippines - The Court of Appeals has allowed Express Telecommunications Co. Inc. (Extelcom) to intervene and oppose a petition filed by Multi-Media Telephony Inc. (MTI) to force the National Telecommunications Commission (NTC) to grant it the last 3G frequency.

MTI is challenging the NTC’s decision in 2005 to award only four of the five 3G frequencies and to hold on the last one rather than give it to non-qualifying applicants which included MTI.

The NTC awarded the first four 3G frequencies to Smart Communications, Globe Telecom, Digital Mobile Telephone Inc., and Connectivity Unlimited Resources Enterprise (CURE), a company later acquired by Smart.

The CA earlier granted a petition filed by MTI to prevent the NTC from awarding the last 3G slot. Another division of the appellate court said the NTC’s use of a point system to determine who are qualified is null and void, adding that assuming the said point system is valid, the last 3G slot should be granted to Bayan Telecommunications.

In its resolution, the CA decided to grant Extelcom’s motion for leave to intervene “considering the logic in the claim of Extelcom that any disposition that we might make affecting the NTC disposition under the 2005 rules will prejudice its legal right to apply for the last remaining bandwidth under the 2010 rules.”

The CA said granting the intervention is also in the interest of a speedy administration of justice to hear and determine in one proceeding all conflicting claims on the subject and prevent a multiplicity of suits.

In its motion, Extelcom said it is an applicant for the assignment of the last 3G frequency under Memorandum Circular 01-03-2010 promulgated by the NTC last March.

Therefore, any action by the Court to abort the evaluation process conducted by the NTC under the earlier MC 07-08-2005 and award the last remaining 3G frequency to the petitioner (MTI) will invariably affect its legal standing to participate in the award process under MC 01-03-2010, thus defeating its rights under the issuance,” Extelcom said.

In granting Extelcom’s motion, the CA brushed aside MTI’s opposition to the intervention on the ground that Extelcom has no legal interest under MC 07-08-2005 which is the subject matter of the case but in MC 01-03-2010 which involves an entirely different matter.

Meanwhile, the CA also pointed out that the 60-day temporary restraining order it issued against the NTC, to keep it from proceeding with the qualification process for awarding the last 3G frequency, has already expired.

In its opposition to the MTI petition, Extelcom said there is no legal basis to nullify the 2005 awarding of 3G frequencies as the NTC properly exercised its discretion and prerogative to adopt a 30-point system in the evaluation of the applicants based on a reasonable standard previously made known to all parties.

It pointed out that the 30-point system is a reasonable interpretation of the NTC’s own rules and is not arbitrary, whimsical or capricious while the imposition of the 20-point qualification threshold was neither arbitrary nor illegal and was thus valid and legal.

The firm added that the NTC correctly evaluated MTI‘s qualifications based on its track record and roll-out plan and rightfully declared that MTI failed to meet the minimum criteria of 20 points.

Extelcom also pointed out that MTI can no longer demand that it be given the last 3G frequency despite claims that it is now qualified, since the 2005 MC does not allow a reassessment of qualifications of applicants as it was a one-time evaluation process and since the NTC has already declared the MC to have exhausted its power.