By Lara Climaco i FilAm Star Correspondent
In a move that could further delay the bidding for the country’s third telco slot, two lawyers based in Manila have asked the Supreme Court (SC) to stop the National Telecommunications Commission (NTC) from bidding out frequencies associated with the PHP 7 billion buyout by the PLDT Group and Globe Telecom of the telco assets of San Miguel Corp (SMC).
The 49-page petition was filed October 23 by lawyers Joseph Lemuel Baligod Baquiran and Ferdinand Tecson. It mainly questions the validity of NTC’s award of frequencies to Liberty Broadcasting Network (Liberty), which assigned its frequencies to Bell Telecommunications (BellTel), a subsidiary of Vega Telecom — the entity involved in the PHP 70 billion buyout.
Now known as Tori Spectrum Telecom, Liberty started out as a broadcast entity that was awarded the 700 MHz band for broadcasting services without the benefit of a public hearing, the petition alleged. When Liberty’s franchise was renewed in 2012, NTC should have recalled the frequencies assigned to the company because the new legislative franchise no longer authorized broadcast services, the petition said. Current law prohibits a single player from engaging in both telecommunications and broadcasting services at the same time, it pointed out. Another reason cited by the petition was Liberty’s failure to use or the underutilization of its assigned frequencies, having been a dormant company.
Despite these deficiencies, NTC allowed Liberty to hoard its assigned frequencies, thus betraying its constitutional mandate especially when the agency approved last year the duopoly’s take-over of BellTel, according to the petition. Liberty’s assignment of frequencies to BellTel was illegal as well, the petitioners asserted because the transfer had no congressional approval, as required by Liberty’s franchise. The petition also noted the presence of foreign investors in both Liberty and BellTel.
Because of all these infirmities, the petitioners urged the SC to stop PLDT/Smart and Globe “from utilizing and monopolizing the scarce public resource of 700MHz and 2540-2545MHz, 2580-2595MHz, 2535-2540 MHz and 2565-2580MHz” by issuing a temporary restraining order (TRO) against NTC and the telcos involved.
The TRO should also “restrain and enjoin respondent NTC from bidding out or awarding the frequencies supposedly returned by respondents Globe and PLDT/Smart in consideration of the approval of the co-use agreement, namely the 10MHz of the 700MHz, 850MHz, 2100MHz (3G frequencies) bands and 15MHz of the 2500MHz band to any telecommunication entity until the honorable court shall have resolved with finality the constitutional and legal issues of transcendental public importance raised in this petition in order to obviate any judgment which would be rendered in this case becoming moot and illusory,” the petition said in its concluding statements.
It pointed out that the 700 MHz spectrum is highly valuable in telco operations because it can travel long distances and penetrate building walls, elevators and underground parking lots. With these qualities, fewer cell towers are required for a network rollout, providing substantial cost savings. It was only in 2016 when the NTC re-allocated the 700 MHz from broadcast to mobile use following international covenants, it added. By then, the spectrum had already been transferred to BellTel.
The frequency range cited in the petition includes some of those slated for assignment to the New Major Player (NMP) or the third telco slot. After months of delay, bidding for the third telco slot is on-going. Submitted bids are scheduled to be opened by the NMP Selection Committee by November 7.
The Philippine Competition Commission (PCC) was also named as a respondent in the two lawyers’ lawsuit for allegedly neglecting its duty to investigate the PLDT-Globe-SMC deal.
Data from the PCC website shows, however, that the anti-trust body tried to review the duopoly’s acquisition of SMC’s telco assets but was constrained by the Court of Appeals. PCC had appealed the case before the SC in April last year.