SPECIAL FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated 05 AUG 2002.

G.R. No. 147096 (Republic of the Philippines, etc. vs. Express Telecommunications Co., Inc., et al.);

G.R. No. 147210 (Bayan Telecommunications, Inc. vs. Express Telecommunications Co., Inc.)

Before the Court is the Motion for Reconsideration and Clarification filed by respondent Express Telecommunications Co., Inc. in the consolidated cases at bar. The Motion assails the Court’s Decision dated January 15, 2002, which reinstated the orders of the National Telecommunications Commission to grant Bayan Telecommunications, Inc. a provisional authority to operate a nationwide cellular mobile telephone system (CMTS).

In fine, respondent-movant Extelcom argues that the NTC erred in applying its 1978, rather than its 1993, rules of practice and procedure in granting the provisional authority to Bayantel; that respondent was justified in filing the petition for certiorari with the Court of Appeals without first seeking the reconsideration of the assailed NTC orders, considering the patent error therein and the purely legal issues raised; and that the grant by the NTC of a provisional authority to Bayantel was without legal and procedural basis.

The Motion advances no new and substantial arguments which have not already been raised by respondent and passed upon by this Court in the assailed Decision. There is, therefore, no compelling reason for us to set aside and reconsider the same.

The issue of which set of rules the NTC should have applied was extensively discussed in the Decision. This notwithstanding, respondent has again brought up this issue in its effort to show procedural error on the part of NTC for supposedly issuing the provisional authority to Bayantel on its own initiative. This question, however, has lost its relevance because, as we stated in our Decision, there is on record an application from Bayantel for the said provisional authority, thereby belying the claim that the NTC issued the same motu propio.

Respondent maintains that the NTC committed error in granting the provisional authority, invoking both procedural and substantive grounds. Its contention that it was denied due process when NTC revived Bayantel’s application, however, still fails to convince. As we pointed out in our Decision, Bayantel’s application was archived because there were then no available frequencies. When the said frequencies became available, the NTC revived the application and set hearings therefor. Respondent and all other interested parties were notified of said hearings. Hence, respondent can not be heard to complain that it was deprived due process. Clearly, the NTC issued the provisional authority after notice and hearing.

Respondent also argues that the requirements for the issuance of the provisional authority, such as the existence of an urgent public need, were not met. In this connection, it is well to reproduce the pertinent findings of the NTC which formed the bases for the provisional authority, viz:

COMMENTS:

1. Due to the operational mergers between Smart Communications, Inc. and Pilipino Telephone Corporation (Piltel) and between Globe Telecom, Inc. (Globe) and Isla Communications, Inc. (Islacom), free and effective competition in the CMTS market is threatened. The fifth operator, Extelcom, cannot provide good competition in as much as it provides service using the analog AMPS. The GSM system dominates the market.

2. There are at present two applicants for the assignment of the frequencies in the 1.7 Ghz and 1.8 Ghz allocated to CMTS, namely Globe and Extelcom. Based on the number of subscribers Extelcom has, there appears to be no congestion in its network - a condition that is necessary for an applicant to be assigned additional frequencies. Globe has yet to prove that there is congestion in its network considering its operational merger with Islacom.

3. Based on the reports submitted to the Commission, 48% of the total number of cities and municipalities are still without telephone service despite the more than 3 million installed lines waiting to be subscribed.

CONCLUSIONS:

1. To ensure effective competition in the CMTS market considering the operational merger of some of the CMTS operators, new CMTS operators must be allowed to provide the service.

2. The re-allocated frequencies for CMTS of 3 blocks of 5 Mhz x 2 is sufficient for the number of applicants should the applicants be qualified.

3. There is a need to provide service to some or all of the remaining cities and municipalities without telephone service.

4. The submitted documents are sufficient to determine compliance to the technical requirements. The applicant can be directed to submit details such as channeling plans, exact locations of cell sites, etc; as the project implementation progresses, actual area coverage ascertained and traffic data are made available. Applicant appears to be technically qualified to undertake the proposed project and offer the proposed service.

IN VIEW OF THE FOREGOING and considering that there is prima facie evidence to show that Applicant is legally, technically and financially qualified and that the proposed service is technically feasible and economically viable, in the interest of public service, and in order to facilitate the development of telecommunications services in all areas of the country, as well as to ensure healthy competition among authorized CMTS providers, let a PROVISIONAL AUTHORITY (P.A.) be issued to Applicant BAYAN TELECOMMUNICATIONS, INC. authorizing it to construct, install, operate and maintain a Nationwide Cellular Mobile Telephone Systems (CMTS), subject to the following terms and conditions without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority, in accordance with Section 3, Rule 15, Part IV of the Commission’s Rules of Practice and Procedure. xxx (Rollo, G.R. No. 147096, pp. 224-226).

The above observations, to our mind, provide more than sufficient grounds for the grant of the provisional authority. They clearly demonstrate not only the urgent public need for additional telephone service, but also the capacity of the applicant, Bayantel, to provide the necessary additional

CMTS.

On the whole, respondent has shown no cogent ground to interfere with the exercise by the NTC of its discretion and prerogative. It is elementary in administrative law that courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies (AKBAYAN-Youth, et al. v. COMELEC, G.R. Nos. 147066 and 147079, March 26, 2001). Indeed, the specialized capabilities accumulated by the NTC in the performance of its functions have enabled it to arrive at an independent, conscientious, competent and informed expert opinion on the technical matters brought before it.

Considering that the respondent’s Motion has failed to present any matter of substantial importance to warrant the reversal of our Decision, we see no need to discuss the remaining arguments which relate to procedural matters. These, too, have already been extensively discussed and passed upon in our Decision.

ACCORDINGLY, the Motion for Reconsideration and Clarification filed by respondent Express Telecommunications Co., Inc. in these

consolidated cases is DENIED with FINALITY.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court