The NOW Telecom Company Inc., eyeing to become the country’s third major telecommunications provider, faces continued misfortune as the Court of Appeals (CA) maintained its decision to dismiss the company’s mandamus petition against the National Telecommunications Commission (NTC) and former NTC Commissioner, now Commission on Audit Chairman Gamiel Cordoba.
The latest CA ruling comes shortly after the Supreme Court upheld the denial of NOW Telecom’s petition to halt the NTC from enforcing certain provisions of its memorandum circular during the 2018 selection process for the country’s third telco.
In a four-page resolution promulgated on 29 February 2024, the CA’s Special Ninth Division denied the motion filed by NOW Telecom seeking to reconsider its 21 September 2023 decision dismissing the mandamus petition.
The motion for reconsideration (MR) was found by the CA to be a “mere rehash” of NOW Telecom's previous arguments in its petition, which has already been addressed and ruled upon by the court.
“Clearly, NOW Telecom failed to raise new issues, interpose new compelling arguments or present new credible evidence in its MR which would warrant a reconsideration or reversal of Our Decision,” said in the resolution penned by Associate Justice Tita Marilyn B. Payoyo-Villordon and concurred in by Associate Justices Myra V. Garcia-Fernandez and Walter S. Ong.
The case centered on NOW Telecom’s plea to compel the NTC to adhere to the resolution and order of automatic approval (OAA) issued by the Anti-Red Tape Authority (ARTA).
The company filed a petition for mandamus under Rule 65 of the Revised Rules of Court, seeking to enforce ARTA’s resolution and OAA both dated 1 March 2021.
These ARTA documents declared NOW Telecom’s application for a provisional authority to operate in the frequency range of 1970 to 1980 megahertz (MHz), paired with 2160 to 2170 MHz and 3.6 to 3.8 gigahertz, as automatically approved by the operation of Republic Act (RA) 11032, also known as the Ease of Doing Business and Efficient Government Service Delivery Act of 2018.
The CA though ruled that NOW Telecom “failed to show that it has a clear legal right over the concomitant frequencies which NTC failed to assign.”
It also observed that the issuances upon which NOW Telecom based its claim to the requested frequencies“ have already been set aside by ARTA in its Resolutions dated 17 June 2022 and dated 2 August 2022.”
The appellate court likewise held that NOW Telecom “did not prove any ministerial duty on the part of [NTC] which it neglected to perform.”
It pointed out that RA 7925, or the Public Telecommunications Policy Act of the Philippines, entrusted NTC with the duty to take the necessary measures to implement the law's policies and objectives.
“As the principal administrator of the said law, the NTC found in its Consolidated Order dated 28 December 2005 that NOW Telecom is non-compliant with the requirements under the law and disqualified it from getting an allocation of 3G frequency,” the CA declared.
It added, “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".
The appellate court explained 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.”
The telecom company was defeated by Mislatel Consortium, a partnership between Udenna Corporation and China Telecom, in the 2018 bid for the third major player in the telecommunications industry. Mislatel subsequently transformed into Dito Telecommunity Corp.
In 2023, NOW Telecom secured a US$ 2.15 million grant from the United States Trade and Development Agency for the development and implementation of a mobile and fixed wireless network using 5G technology.