Bayan to appeal court ruling

MANILA, Philippines - Lopez-owned Bayan Telecommunications will ask the Court of Appeals to reconsider its recent ruling dismissing the company’s petition that questioned the National Telecommunications Commission (NTC) decision not to award it a 3G (third generation mobile communications technology) license.

Bayan said it will exhaust all legal remedies in its claim to be one of those that should have been awarded with a 3G license considering its track record and its commitment to roll out the service. It has until Sept. 1 to file a motion for reconsideration with the CA.

Company chief executive consultant Tunde Fafunwa noted that in the last two years, they have demonstrated their capability to roll out a 3G-compliant network with their CDMA-based wireless landline service which disrupted and transformed the voice-calling market today.

Bayan wants to invalidate what it claims to be a flawed selection process by the NTC for granting 3G licenses.

In its suit against the NTC, Bayan had opposed the selection process, including the points-scoring system for applicants, in the awarding of 3G frequencies, arguing that the NTC had denied Bayan due process and such denial led to its loss in the selection process.

The NTC had awarded 3G licenses to Smart Communications, Globe Telecom, Digital Telecommunications (Digitel) and Connectivity Unlimited Resources Enterprise (CURE). There is one more 3G license available that has not been awarded to date.

However, Bayan said it will oppose any action by the NTC to award the fifth 3G frequency license.

In its petition, Bayan claims that the faulty scoring system, resulted in an award of a 3G license to CURE, a new entity with no track record. CURE has been recently acquired by Smart.

However, the CA said Bayan’s petition is infirm since no party was impleaded as respondent. The court pointed out that Bayan should have impleaded the NTC and the four telecom firms granted 3G licenses. “Simply stated, no respondent, no case,” it pointed out.

It added that Bayan’s petition for lack of substance, noting that the NTC has sufficient authority to interpret its own rules on the qualifications of applicants and adopt a point system it deems best suited for the evaluation process.

Since the NTC publicly posted draft circulars and actively consulted industry players, the CA said it had complied with all the procedural requirements for the valid issuance of the memorandum circular on the issuance of 3G licenses.

The appellate court added that “the point system that the NTC eventually adopted was reasonable and germane to the declared purpose of determining the best qualified applicants.”

The CA observed that the point system was equally employed by the NTC to all qualified applicants, adding that Bayan did not deserve to get high points for its roll out plan since it pales in comparison to that of Smart, Globe or Digitel.