316 Supreme Court Reports Annotated: Republic vs. Express Telecommunication Co., Inc
316 Supreme Court Reports Annotated: Republic vs. Express Telecommunication Co., Inc
316 Supreme Court Reports Annotated: Republic vs. Express Telecommunication Co., Inc
_______________
12 Ibid.
* FIRST DIVISION.
317
318
319
operate the subject service and to charge the proposed rates and after due
notice and hearing, approve the instant application and grant the
corresponding certificate of public convenience and necessity.
Same; Same; Same; Archiving of Cases; Revival of Cases; The
archiving of cases is a widely accepted measure designed to shelve cases in
which no immediate action is expected but where no grounds exist for their
outright dismissal, albeit without prejudice, and there is nothing irregular in
the revival of the application after the condition therefor is fulfilled.—The
Court of Appeals also erred when it declared that the NTC’s Order archiving
Bayantel’s application was null and void. The archiving of cases is a widely
accepted measure designed to shelve cases in which no immediate action is
expected but where no grounds exist for their outright dismissal, albeit
without prejudice. It saves the petitioner or applicant from the added trouble
and expense of re-filing a dismissed case. Under this scheme, an inactive
case is kept alive but held in abeyance until the situation obtains wherein
action thereon can be taken. In the case at bar, the said application was
ordered archived because of lack of available frequencies at the time, and
made subject to reinstatement upon availability of the requisite frequency.
To be sure, there was nothing irregular in the revival of the application after
the condition therefor was fulfilled.
Same; Same; Same; Same; Same; Due Process; Where the order refers
to a simple revival of an archived application, it cannot be said that an
oppositor’s right to procedural due process was prejudiced if it was not
given an opportunity to question the motion for revival; There is no denial
of due process where full-blown adversarial proceedings are conducted
before an administrative body.—The Court of Appeals ruled that there was a
violation of the fundamental right of Extelcom to due process when it was
not afforded the opportunity to question the motion for the revival of the
application. However, it must be noted that said Order referred to a simple
revival of the archived application of Bayantel in NTC Case No. 92-426. At
this stage, it cannot be said that Extelcom’s right to procedural due process
was prejudiced. It will still have the opportunity to be heard during the full-
blown adversarial hearings that will follow. In fact, the records show that
the NTC has scheduled several hearing dates for this purpose, at which all
interested parties shall be allowed to register their opposition. We have ruled
that there is no denial of due process where fullblown adversarial
proceedings are conducted before an administrative body. With Extelcom
having fully participated in the proceedings, and indeed, given the
opportunity to file its opposition to the application, there was clearly no
denial of its right to due process.
320
321
322
323
324
325
comment to the petition or any pleading therein. The instant petition, on the
other hand, was filed under Rule 45 where no similar proscription exists.
PETITIONS for review on certiorari of a decision of the Court of
Appeals.
YNARES-SANTIAGO, J.:
_______________
326
On June 18, 1998, the NTC issued Memorandum Circular No. 5-6-
98 re-allocating five (5) megahertz (MHz) of the radio frequency
spectrum for the expansion of CMTS networks. The re-allocated 5
MHz were taken from the following bands: 1730-1732.5/1825-
5
1827.5 MHz and 1732.5-1735/1827.5-1830 MHz.
Likewise, on March 23, 1999, Memorandum Circular No. 3-3-99
was issued by the NTC re-allocating an additional five (5) MHz
frequencies for CMTS service, namely: 1735-1737.5/1830-1832.5
MHz; 1737.5-1740/1832.5-1835 MHz; 1740-1742.5/1835-1837.5
6
MHz; and 1742.5-1745/1837.5-1840 MHz.
On7 May 17, 1999, Bayantel filed an Ex-Parte Motion to Revive
Case, citing the availability of new frequency bands for CMTS
operators, as provided for under Memorandum Circular No. 3-3-99.
On February 1, 2000, the NTC granted BayanTel’s motion to
revive the latter’s application and set the case for hearings on Febru-
_______________
327
_______________
8 Id., p. 171.
9 Id., pp. 173-181.
10 Id., pp. 182-189.
328
_______________
329
to be later heard and present the merits of their respective oppositions in the
proceedings.
On the allegation that the instant application is already obsolete and
overtaken by developments, the issue is whether applicant has the legal,
financial and technical capacity to undertake the proposed project. The
determination of such capacity lies solely within the discretion of the
Commission, through its applicable rules and regulations. At any rate, the
oppositors are not precluded from showing evidence disputing such capacity
in the proceedings at hand. On the alleged non-availability of frequencies
for the proposed service in view of the pending applications for the same,
the Commission takes note that it has issued Memorandum Circular 9-3-
2000, allocating additional frequencies for CMTS. The eligibility of existing
operators who applied for additional frequencies shall be treated and
resolved in their respective applications, and are not in issue in the case at
hand.
Accordingly, the Motions for Reconsideration filed by SMARTCOM and
GLOBE TELECOMS/ISLACOM and the Motion 13
to Dismiss filed by
EXTELCOM are hereby DENIED for lack of merit.
COMMENTS:
_______________
330
CONCLUSIONS:
Extelcom filed
15
with the Court of Appeals a petition for certiorari and
prohibition, docketed as CA-G.R. SP No. 58893, seeking the
annulment of the Order reviving the application of Bayantel, the
_______________
331
_______________
332
Hence, the NTC filed the instant petition for review on certiorari,
docketed as G.R. No. 147096, raising the following issues for
resolution of this Court:
_______________
333
334
_______________
335
_______________
336
that the filing of the rules with the UP Law Center is the operative
act that gives the rules force and effect. Book VII, Chapter 2,
Section 3 thereof merely states:
Filing.—(1) Every agency shall file with the University of the Philippines
Law Center three (3) certified copes of every rule adopted by it. Rules in
force on the date of effectivity of this Code which are not filed within three
(3) months from the date shall not thereafter be the basis of any sanction
against any party or persons.
This does not imply however, that the subject Administrative Order is a
valid exercise of such quasi-legislative power. The original Administrative
Order issued on August 30, 1989, under which the respondents filed their
applications for importations, was not published in the Official Gazette or in
a newspaper of general circulation. The questioned Administrative Order,
legally, until it is published, is invalid within the context of Article 2 of
Civil Code, which reads:
“Article 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in the
Philippines), unless it is otherwise provided. x x x”
The fact that the amendments to Administrative Order No. SOCPEC 89-
08-01 were filed with, and published by the UP Law Center in the National
Administrative Register, does not cure the defect related to the effectivity of
the Administrative Order.
_______________
337
This Court, in Tañada vs. Tuvera (G.R. No. L-63915, December 29,
1986, 146 SCRA 446) stated, thus:
“We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which
shall begin fifteen days after publication unless a different effectivity is
fixed by the legislature.
Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative power or, at
present, directly conferred by the Constitution. Administrative Rules and
Regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors concerning
the rules or guidelines to be followed by their subordinates in the
performance of their duties.
xxx
We agree that the publication must be in full or it is no publication at all
since its purpose is to inform the public of the contents of the laws.”
The Administrative Order under consideration is one of those issuances
which should be published for its effectivity, since its purpose is to enforce
and implement an existing law pursuant 27
to a valid delegation, i.e., P.D.
1071, in relation to LOI 444 and EO 133.
Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper 28
of general
circulation in the Philippines, unless it is otherwise provided.
_______________
338
_______________
339
The Court of Appeals also erred when it declared that the NTC’s
Order archiving Bayantel’s application was null and void. The
archiving of cases is a widely accepted measure designed to shelve
cases in which no immediate action is expected but where no
grounds exist for their outright dismissal, albeit without prejudice. It
saves the petitioner or applicant from the added trouble and expense
of re-filing a dismissed case. Under this scheme, an inactive case is
kept alive but held in abeyance until the situation obtains wherein
action thereon can be taken.
In the case at bar, the said application was ordered archived
because of lack of available frequencies at the time, and made
subject to reinstatement upon availability of the requisite frequency.
To be sure, there was nothing irregular in the revival of the
application after the condition therefor was fulfilled.
While, as held by the Court of Appeals, there are no clear
provisions in the Rules of the NTC which expressly allow the
archiving of any application, this recourse may be justified under
Rule 1, Section 2 of the 1978 Rules, which states:
The Court of Appeals ruled that the NTC committed grave abuse of
discretion when it revived Bayantel’s application based on an ex-
parte motion. In this regard, the pertinent provisions of the NTC
Rules:
_______________
32 CA Decision, p. 5.
340
shall be acted upon by the Board only upon showing of urgent necessity 33
therefor and the right of the opposing party is not substantially impaired.
In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the
right to be heard does not only refer to the right to present verbal arguments
in court. A party may also be heard through his pleadings, where
opportunity to be heard is accorded either through oral arguments or
pleadings, there is no denial of procedural due process. As reiterated in
National Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No.
123520, June 26, 1998, 291 SCRA 348), the essence of due process is
simply an opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one’s side. Hence, in Navarro III vs.
Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hear-
_______________
341
Extelcom had already entered its appearance as a party and filed its
opposition to the application. It was neither precluded nor barred
from participating in the hearings thereon. Indeed, nothing, not even
the Order reviving the application, bars or prevents Extelcom and
the other oppositors from participating in the hearings and adducing
evidence in support of their respective oppositions. The motion to
revive could not have possibly caused prejudice to Extelcom since
the motion only sought the revival of the application. It was merely
a preliminary step towards the resumption of the hearings on the
application of Bayantel. The latter will still have to prove its
capability to undertake the proposed CMTS. Indeed, in its Order
dated February 1, 2000, the NTC set several hearing dates precisely
intended for the presentation of evidence on Bayantel’s capability
and qualification. Notice of these hearings were sent to all parties
concerned, including Extelcom.
As regards the changes in the personal circumstances of
Bayantel, the same may be ventilated at the hearings during
Bayantel’s presentation of evidence. In fact, Extelcom was able to
raise its arguments on this matter in the Opposition (With Motion to
Dismiss) anent the re-opening and reinstatement of the application
of Bayantel. Extelcom was thus heard on this particular point.
Likewise, the requirements of notice and publication of the
application is no longer necessary inasmuch as the application is a
mere revival of an application which has already been published
earlier. At any rate, the records show that all of the five (5) CMTS
operators in the country were duly notified and were allowed to raise
their respective oppositions to Bayantel’s application through the
NTC’s Order dated February 1, 2000.
It should be borne in mind that among the declared national
policies under Republic Act No. 7925, otherwise known as the
Public Telecommunications Policy Act of the Philippines, is the
healthy competition among telecommunications carriers, to wit:
_______________
342
_______________
343
As a general rule, where the law provides for the remedies against the action
of an administrative board, body or officer, relief to courts can be sought
only after exhausting all remedies provided. The reason rests upon the
presumption that the administrative body, if given the chance to correct its
mistake or error, may amend its decision on a given matter and decide it
properly. Therefore, where a remedy is available within the administrative
machinery, this should be resorted to before resort can be made to the
courts, not only to give the administrative agency the opportunity to decide
the matter by itself correctly, but also to prevent unnecessary and premature
resort to courts.
The general rule is that, in order to give the lower court the opportunity to
correct itself, a motion for reconsideration is a prerequisite to certiorari. It
also basic that petitioner must exhaust all other available
_______________
38 Social Security System Employees Association v. Bathan-Velasco, 313 SCRA 250, 252
(1999).
39 303 SCRA 448, 458 (1999).
344
This case does not fall under any of the recognized exceptions to this
rule. Although the Order of the NTC dated May 3, 2000 granting
provisional authority to Bayantel was immediately executory, it did
not preclude the filing of a motion for reconsideration. Under the
NTC Rules, a party adversely affected by a decision, order, ruling or
resolution may within fifteen (15) days file a motion for
reconsideration. That the Order of the NTC became immediately
executory does not mean that the remedy of 41
filing a motion for
reconsideration is foreclosed to the petitioner.
Furthermore, Extelcom does not enjoy the grant of any vested
interest on the right to render a public service. The Constitution is
quite emphatic that the operation of a public utility shall not be
exclusive. Thus:
_______________
345
_______________
346
At the outset, it should be noted that a petition for certiorari under Rule 65
of the Rules of Court will prosper only if there is a showing of grave abuse
of discretion or an act without or in excess of jurisdiction on the part of the
national Labor Relations Commission. It does not include an inquiry as to
the correctness of the evaluation of evidence which was the basis of the
labor official or officer in determining his conclusion. It is not for this Court
to re-examine conflicting evidence, re-evaluate the credibility of witnesses
nor substitute the findings of fact of an administrative tribunal which has
gained expertise in its special field. Considering that the findings of fact of
the labor arbiter and the NLRC are supported by evidence on record, the
same must be accorded due respect and finality.
This Court has consistently held that the courts will not interfere in
matters which are addressed to the sound discretion of the
government agency entrusted with the regulation of activities
coming under47the special and technical training and knowledge of
such agency. It has also been held that the exercise of
administrative discretion is a policy decision and a matter that can
best be discharged
48
by the government agency concerned,
49
and not by
the courts. In Villanueva v. Court of Appeals it was held that
findings of fact which are supported by evidence and the conclusion
of experts should not be disturbed. This was reiterated in Metro
Transit Organization, Inc. v. National Labor Relations Commis-
_______________
347
_______________
348
Even assuming that separate actions have been filed by two different
parties involving essentially the same subject matter, no forum
shopping was committed as the parties did not resort to multiple
judicial remedies. The Court, therefore, directed the con-
_______________
349
solidation of the two cases because they involve essentially the same
issues. It would also prevent the absurd situation wherein two
different divisions of the same court would render altogether
different rulings in the cases at bar.
We rule, likewise, that the NTC has legal standing to file and
initiate legal action in cases where it is clear that its inaction would
result in an impairment of its ability to execute and perform its
functions. Similarly, we54 have previously held in Civil Service
Commission v. Dacoycoy that the Civil Service Commission, as an
aggrieved party, may appeal the decision of the Court of Appeals to
this Court.
As correctly stated by the NTC, the rule invoked by Extelcom is
Rule 65 of the Rules of Civil Procedure, which provides that public
respondents shall not appear in or 55
file an answer or comment to the
petition or any pleading therein. The instant petition, on the other
hand, was filed under Rule 45 where no similar proscription exists.
WHEREFORE, in view of the foregoing, the consolidated
petitions are GRANTED. The Court of Appeals’ Decision dated
September 13, 2000 and Resolution dated February 9, 2001 are
REVERSED and SET ASIDE. The permanent injunction issued by
the Court of Appeals is LIFTED. The Orders of the NTC dated
February 1, 2000 and May 3, 2000 are REINSTATED. No
pronouncement as to costs.
SO ORDERED.
_______________
350
——o0o——
351