CA junks NOW Telecom’s mandamus case vs NTC, Cordoba

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Metro Manila (CNN Philippines, October 2) — The Court of Appeals (CA) junked the petition for mandamus filed by NOW Telecom Company Inc. (NOW Telecom) against the National Telecommunications Commission (NTC) and former NTC Commissioner, now Commission on Audit Chairman Gamaliel Cordoba, in connection with the firm’s application for a provisional authority to operate a cellular mobile telephone service within specific frequency ranges.

The CA’s Special Ninth Division ruled on Sept. 28 that NOW Telecom failed to show it had a clear legal right over the frequencies it sought; and NOW Telecom did not prove any ministerial duty on the part of NTC which it neglected to perform.

The mandamus petition sought to compel NTC and Cordoba to comply with the order of the Anti-Red Tape Authority (ARTA), which deemed automatically approved by operation of law NOW Telecom's application for a provisional authority to operate in the frequency range 1970 megahertz (Mhz) - 1980 Mhz paired with 2160 Mhz to 2170 Mhz and 3.6 gigahertz (Ghz) to 3.8 Ghz frequency ranges.

But ARTA reversed its previous decisions and formally recommended NOW Telecom's application for frequency assignment to the NTC.

The CA said NOW Telecom’s right to be issued the frequencies is still in legal limbo since the case is still pending before the Office of the President.

“It bears reiteration that the writ of mandamus may only issue if the party claiming it has a well-defined, clear, and certain legal right to the thing demanded,” the CA noted.

NOW Telecom also argued that the issuance of the frequencies is a ministerial, not a discretionary act that may be compelled by mandamus.

However, the CA disagreed, citing the National Telecommunications Act (R.A. 7925), which granted the NTC discretion in implementing the law's policies and objectives.

Given the NTC's prior disqualification of NOW Telecom due to non-compliance with legal requirements, the CA asserted that ordering immediate assignment of frequencies would infringe upon the NTC's lawful discretion.

“We should therefore refrain from intervening in the discretionary functions and prerogatives of the Executive department. Moreover, considering that NOW Telecom failed to establish that it has a clear legal right over the concomitant frequencies, this Court is powerless to grant the remedy prayed for in the petition,” the court said.