PHL Appellate Court upholds NTC awarding of 3G licenses

The Court of Appeals (CA) has sustained the National Telecommunications Commission (NTC)’s awarding of 3G frequencies in 2005 and has dismissed the appeal filed against it by Multi-Media Telephony Inc. (MTI). In a 23-page decision penned by Associate Justice Mario L. Guariña III, the CA said the existence of substantial evidence to support the NTC’s decision “seals the ruling with finality." “Courts have afforded great respect to the interpretation by administrative agencies of their own rules and will defer to their dispositions unless there is an error of law or grave abuse of discretion which is not present here," Guariña said. This is the second CA ruling in a month which upheld the NTC’s 3G awarding process and evaluation. In a 12-page decision dated May 26, Associate Justice Franchito Diamante said the court refused to overturn two of the NTC’s decisions — the one denying AZ Communication Network’s application for a 3G license and the other on denying its motion for reconsideration. In his ruling, Guariña noted that MTI’s argument is that the NTC’s imposition of a threshold requirement of a minimum of 20 out of a maximum of 30 points in the evaluation of 3G applicants violated due process and protection against retroactivity since it was a sudden requirement that was not in the NTC’s 2005 rules. MTI also claimed that it should have been ranked fourth, instead of Cure, under the point system and that Cure should have been disqualified after its acquisition by Smart Communications. However, Guariña said “the adoption of the 20-point qualification threshold by the NTC in evaluating the credentials of the applicants is reasonable and made pursuant to its quasi-judicial powers." He added that “in none of the pleadings of MTI is the legality of the 2005 3G Rules under doubt." The CA said the NTC, under its mandate from the Public Telecommunications Policy Act of the Philippines, “possesses wide latitude in the evaluation of evidence and exercise of its adjudicative functions to grant 3G frequencies according to the standards set by statute." The NTC had adopted a point system to rank 3G applicants based on their track record, roll-out commitments, and rates it will charge consumers and users. Guariña said the NTC did not violate due process in coming out with the 20-point threshold since it was just a means to interpret the qualifications of the applicants and the applicants were informed on the results of the evaluation. He wrote that “we find merit in the view of the OSG (Office of the Solicitor General) that the adopted system was the most feasible, if not the only practical method to conduct the evaluation. For how else, it may be rhetorically asked, can the evaluation be made unless by using some sort of point system?" Guariña said “the point system provides order and objectivity to a process that would otherwise have succumbed to the unfettered discretion of the NTC, a scenario offensive to the due process of law." He added that “there is nothing objectionable or invidious to the (threshold) requirement" explaining that, without a threshold, the NTC may have to award the 3G frequency “to an applicant even with zero points as long as it is the fifth to qualify." Regarding the NTC’s ranking of MTI, Guariã upheld the NTC’s decision to give MTI only four points as a non-CMTS provider instead of 7 if it was a CMTS provider because MTI was granted a provisional authority only 77 days before its 3G application. The CA said this “was an extremely short interregnum that would make it impossible for the petitioner, if evaluated as the CMTS provider, to have complied with the minimum mandate of the rules…and it would have to be content with lower or no points at all than if it was a non-CMTS provider" since “MTI would have not track record to speak of." — Newsbytes.ph