Court thwarts telco bid for TRO


NOW Telecom on Tuesday acknowledged having received a setback on its bid to acquire the license to become the third telecommunications player in the form of Regional Trial Court order denying its application for a temporary restraining order (TRO).

But the denial of its application for a TRO “does not mean NOW Telecom already lost its case before the court. A TRO is issued by the court to preserve the status quo and to preserve a party’s right and prevent further injury while the case is ongoing.”

Any finding made in relation to a TRO application is preliminary. It is not yet final. After the TRO application is decided upon, the court will still continue to try the case and receive evidence before it can issue a final decision on NOW Telecom’s complaint.

NOW Telecom filed an application for TRO to protect its rights while the case is pending.

These rights, it said, include the right to be assigned the 140MHz frequency which it has applied and waited for 11 years.

“If all of the frequencies are assigned to the third telco, NOW Telecom will be left without any frequency to pursue its legislative franchise and CMTS license,” the company said.

Its officials vowed to pursue its appeal before the Supreme Court over the contingent frequencies.

They also question and asked to be protected from the implementation of the participation security, performance security and appeal fee they consider as unreasonable, exorbitant, vague and confiscatory.

The business likewise insists that participants must submit a business and roll-out plan before the National Telecommunications Commission determines the so-called new major player or NMP.

“The NTC is mandated to seek out a qualified participant to be the New Major Player.

However, the NTC cannot determine who is qualified to be the NMP if it does not examine the business and roll-out plan because the business and roll-out plan would state the details on how the NMP would implement a nationwide fixed and mobile wireless network system that would effectively compete with the existing major players in the market,” it said.

NOW Telecom emphasizes that it does not ask the court to stop the bidding, that it wants the bidding process to continue and for the bids to be opened by 7 November this year as scheduled.

“NOW Telecom only asked the court to order the NTC to stop implementing those provisions in the Memorandum Circular that are detrimental to its rights,” it reiterated in the statement.

“When the court heard NOW Telecom’s application for TRO, it simply looked into three (3) issues: (a) Does NOW Telecom have a clear and unmistakable right? (b) Is there extreme urgency? (c) Will NOW Telecom suffer grave and irreparable injury if the court does not issue a TRO?

“A clear legal right means that a party has an actual and existing right that should be protected. This has to be proven in court with evidence.

“In NOW Telecom’s case, the court did not say that NOW Telecom has no clear and unmistakable right. The court simply observed that it was still too early to tell because only NOW Telecom presented evidence. The NTC did not present any evidence at that point in time. The court ruled that it would be best to allow both NOW Telecom and the NTC to present more evidence before it can decide on whether NOW Telecom has a clear legal right.

That is why it set the case for hearing on 23 and 24 October.

“Extreme urgency means that the party must show that the court has to act swiftly and decisively on the TRO application or else, the applicant will suffer injury and be prejudiced.

“In NOW Telecom’s case, the court observed that there was still time for it to hear and receive more evidence since the bidding is still on 7 November, or three weeks away.

“Grave and irreparable injury means that the damage suffered by a party cannot be quantified, damage that cannot be compensated with money.

“In NOW Telecom’s case, the court did not rule on whether there was grave and irreparable injury. This issue will still be taken up during the 23 and 24 October hearing.

“NOW Telecom will continue to pursue its case and present evidence during the 23 and 24 October hearing to show that there is a need for the issuance of an injunctive writ,” it said.

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