NTC bucks bid to halt BWA frequency reallocation

MANILA, Philippines - The National Telecommunications Commission (NTC) has opposed the bid of Voice of Manila (VOM) Broadcasting Corp. for a temporary restraining order to stop the NTC from reallocating certain frequency bands for broadband wireless access (BWA) technology.

In a filing with the Pasig Regional Trial Court, VOM sought the issuance of a TRO to stop the NTC from enforcing and implementing memorandum circular (MC) 06-08-2005 reallocating certain frequency bands in recognition of the need for the NTC to support the development and deployment of telecommunications networks and services in favor of BWA.

The NTC said in its opposition that the petition is weak and must be dismissed for VOM’s failure to implead other telecommunications companies covered by the disputed MC which was issued.

According to the commission, other companies using the frequencies under the MC “have already rolled out and put in place, all over the archipelago, billions of pesos worth of telecommunications infrastructure for their respective frequencies.”

The NTC further argued that restraining the implementation of the MC will adversely affect the other telecommunications companies and the industry as a whole.

“Thus, petitioner’s failure to implead the other telecommunications companies is fatal because a person who was not impleaded in a case could not be bound by the decision rendered by the court,” the NTC said.

The MC covers more than 40 other telecommunications companies operating all over the country, including the industry’s biggest players.

The NTC also said the petition must be dismissed for VOM’s failure to exhaust administrative remedies. It explained that filing of the petition is premature since the petitioner did not exhaust all possible administrative remedies under another memorandum circular, MC 3-3-96’s Rule 603 which states that the NTC shall extend all necessary assistance to all users affected in transferring radio frequencies.

VOM claimed in its petition that the NTC unilaterally issued MC 06-08-2005, without any notice or public hearing. The NTC, however, said that it presented evidence that the issuance of the memorandum circular went through the normal process of publication of the draft, public consultation and publication of the circular.

The regulator pointed out that it cannot be said that VOM was not given due process since MC 06-08-05 had been published in a newspaper of general circulation as required for its effectivity. It added that a public hearing was also conducted on July 12, 2005 prior to the issuance of the MC in its final form. In that public hearing, almost 100 representatives of different stakeholders attended. In addition, 25 groups also submitted their positions papers on the matter after the hearing, the NTC said.

NTC also emphasized that the radio frequency spectrum is a limited and valuable resource used for all forms of wireless communications, including radio and television broadcast, cellular telephony, telephone radio relay, aeronautical and marine navigation, and satellite command, control, and communications.

With the growth of telecommunications and information services, it said there is an ever-increasing demand for spectrum among competing businesses, government agencies, and other groups. Thus, as a public resource, radio spectrum must be managed by governments to ensure that it is shared equitably to promote the public interest, convenience, or necessity, NTC noted.

NTC added that VOM failed to make use of its frequency and that it took some time for VOM to raise the issues in its petition. VOM filed its motion to extend its provisional authority (PA) to use its frequency in September 2003, but it only filed its urgent motion to resolve the same in September 2009, or only six years later.

“In the end, the period of time that has elapsed and the failure to operate under the assigned frequencies for a considerable length of time has left the frequencies to non-use. This is the biggest reason why VOM’s frequency was recalled aside from violations of the conditions for their provisional authority,” NTC argued.

VOM has alleged that the reallocation of any frequency is “equivalent of a death sentence to this company.”  However, the NTC pointed out that VOM has been “sleeping on its interests” all these past years and has not complied with its commitments and undertakings under its provisional authority.

The NTC said, the facts of the case only show that it is VOM who is guilty of inaction. “The petitioner has consistently not complied with its undertakings and commitments. Petitioner has not operated all these years and has neglected to assert its interests for some time,” the commission told the court.

In his affidavit,  NTC deputy commissioner Douglas Mallillin said VOM did not even attach in its petition the company’s annual income tax returns for 2006, 2007 and 2008 that categorically state that VOM “has no commercial operations.”

NTC added that per VOM’s independent auditor’s report, as of December 31, 2008, the company has not started commercial operations pending the successful negotiation of international funding for infrastructure development and the release of government permits and licenses.