SC denies NOW Telecom's bid to be new major PH telco player --- By GISELLE OMBAY, GMA Integrated News

The Supreme Court (SC) has upheld a decision by the Court of Appeals (CA) denying the petition of NOW Telecom Company Inc. to stop the National Telecommunications Commission (NTC) from implementing provisions of a memorandum circular on becoming a new major player in the telecommunications industry. In a 15-page decision, the SC First Division affirmed the appellate court's 2021 ruling and 2022 resolution, denying NOW Telecom's bid for an issuance of an ex-parte temporary restraining order and/or writ of preliminary injunction (WPI) to prevent NTC from enforcing certain provisions of the circular. The 2021 CA ruling affirmed the decision of a Manila regional trial court (RTC), which dismissed NOW Telecom's prayer for the issuance of a WPI. Specifically, the telco company challenged the following provisions as void "for being excessive, confiscatory, and violative" of due process: Section 6.2(j), which requires bidders to post a Participation Security with a face value of P700 million equivalent to 0.5% of the minimum Capital and Operational Expenditure at the end of the Commitment Period; Section 11, which requires the NMP to post a Performance Security in the amount of 10% of the remaining Capital and Operational Expenditure; and Section 8, which provides for a non-refundable filing fee of P10 million for appeal to the NTC en Banc against the decisions of the Selection Committee. NOW Telecom also challenged Section 10.1 of the circular, which requires the submission of the business and roll-out plans after the NMP is determined, as circumventing the prohibition on substantial variation in bids and contracts. Likewise, it also assailed Section 3, which provides for the covered and contingent radio frequencies to be assigned to the NMP, for violating its alleged vested right to be allocated radio frequencies as holder of a legislative and administrative franchise to operate a telecommunications facility. 'Properly upheld' However, the SC has ruled that the CA "did not commit any reversible error in the assailed Decision and Resolution" and that the CA "properly upheld the RTC's denial of NOW Telecom's application for WPI." The SC said that the selection process for a new major player is essentially a bidding and awarding of a national government project, thus the circular cannot be subject to injunctive relief by the lower courts. "First, NOW Telecom failed to establish that it has a clear and unmistakable right to be protected in this case. Before a WPI may be issued, the applicant must establish the existence of the right to be protected. This right must be actual, clear, and existing, not mere contingent, abstract, or future. NOW Telecom failed to show the existence of such right," SC's decision read. "As correctly held by the CA, the grant of a legislative franchise to operate telecommunications services in NOW Telecom's favor does not necessarily carry with it a right over particular radio frequencies. Neither does NOW Telecom's franchise state that it is entitled to specific radio frequencies," it added. With this, the SC said NOW Telecom's application for injunctive relief has been rendered "moot and academic." It also noted that during the pendency of the case, Mindanao Islamic Telephone Company Inc. (Mislatel) was already selected as the new major player in the telco industry and was therefore issued a Certificate of Public Convenience and Necessity. The decision was penned by Associate Justice Rodil Zalameda and was concurred by Chief Justice Alexander Gesmundo, and Associate Justices Ramon Paul Hernando, Ricardo Rosario, and Jose Midas Marquez. GMA News Online has requested comment from NOW Telecom on the matter but the company has yet to respond as of posting time. — VDV, GMA Integrated News

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