CA sustains NTC grant of 3G frequencies to 4 telecom companies

MANILA, Philippines - The Court of Appeals has sustained the National Telecommunications Commission’s award of 3G (third generation of mobile communications technology) frequencies in 2005 to Smart Communications, Globe Telecom, Digital Mobile Telecommunications Inc. (operator of Sun Cellular) and Connectivity Unlimited Resources Enterprise Inc. (CURE), which is now a Smart subsidiary.

The appellate court has likewise dismissed the appeal filed against it by Multi-Media Telephony Inc. (MTI).

In a 23-page decision penned by Associate Justice Mario 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 denying its motion for reconsideration.

MTI has argued 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.

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.