EN BANC
G.R. No. 205875, June 30, 2015
LIBERTY BROADCASTING NETWORK, INC., NOW KNOWN AS WI-TRIBE TELECOMS, INC., Petitioner, v. ATLOCOM WIRELESS SYSTEM, INC., Respondent.
[G.R. No. 208916]
NATIONAL TELECOMMUNICATIONS COMMISSION, Petitioner, v. ATLOCOM WIRELESS SYSTEM, INC., Respondent.
D E C I S I O N
VILLARAMA, JR., J.:
WHEREFORE, it appearing that applicant is financially and technically capable of undertaking the proposed project and that the operation thereof will promote the interest of the people in Metro Manila, in a proper and suitable manner, the Commission hereby grants to herein applicant ATLOCOM WIRELESS SYSTEM, INC. a Provisional Authority (PA) to install, operate and maintain a Multi-Point Multi-Channel Distribution System [MMDS] in METRO MANILA, subject to the assignment of frequency by the Frequency Management Division of this Commission and to the following -As stated in the above order, the PA shall be valid for a period of eighteen (18) months, or until April 8, 2005. In a letter7 dated April 5, 2004, Atlocom thru its counsel requested for "an extension of time of the allocation of the above-enumerated frequencies and for the period for the construction and installation of the radio stations in the condition no. 2 of the Order." Earlier, Atlocom filed an Application for Permit to Import8 the necessary equipment. Atlocom followed up its application for extension of PA through a letter9 dated June 2, 2005 addressed to Deputy Commissioner Jorge V. Sarmiento. Subsequently, Atlocom filed a Motion for Extension of Provisional Authority10 in NTC Case No. 98-158 on March 3, 2005.CONDITIONS
x x x x6
C3 2572 - 2578 MhzOn December 9, 2010, the RTC, after due hearing, issued an Order denying Atlocom's application for a writ of preliminary prohibitory or mandatory injunction. Atlocom filed a motion for reconsideration but it was likewise denied by the RTC under Order dated March 21, 2011.
D3 2578 - 2584 Mhz
C4 2584 - 2590 Mhz
D4 2590 - 2596 Mhz
WHEREFORE, premises considered, the petition is GRANTED. The assailed Orders dated December 9, 2010 and March 21, 2011 of the Regional Trial Court (RTC) of Quezon City, Branch 95 are hereby REVERSED and SET ASIDE. The plea for the issuance of a Preliminary Prohibitory Injunction is GRANTED. Let therefore a writ of preliminary prohibitory injunction issue enjoining Respondent NTC from implementing Memorandum Circular No. 06-08-2005, insofar as the frequencies ranging from 2572-2596 Mhz are concerned and for its Co-Respondent LBNI from using the said frequencies during the pendency of Civil Case No. Q-09-65566 pending before Branch 95 of the Regional Trial Court of Quezon City upon the posting of a bond in the amount of Php 200,000.00 to answer for all damages which they may sustain by reason of the injunction if the RTC should finally decide that petitioner is not entitled thereto. The alternative plea for a writ of Preliminary Mandatory Injunction is DENIED.LBNI filed a Motion for Reconsideration with Ad Cautelam Offer to File Counter-Bond and Addendum to Motion for Reconsideration with Ad Cautelam Offer to File Counter-Bond. NTC also filed a Motion for Reconsideration and Supplemental Motion for Reconsideration. The CA denied these motions.
SO ORDERED.16
SEC. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established:ChanRoblesVirtualawlibraryThe following requisites must be proved before a writ of preliminary injunction will issue: (1) The applicant must have a clear and unmistakable right to be protected, that is, a right in esse; (2) There is a material and substantial invasion of such right; (3) There is an urgent need for the writ to prevent irreparable injury to the applicant; and (4) No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.20chanrobleslaw
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.chanroblesvirtuallawlibrary
In deciding whether to grant an injunction, a court must consider established principles of equity and all the circumstances of the test for issuing an injunction is whether the facts show a necessity for the intervention of equity in order to protect rights cognizable in equity. Here, there are factual and legal justification for issuance of the writ of injunction. To reiterate to the point of being pedantic, petitioner's right to its frequencies is covered by a provisional authority. The provisional authority was withdrawn by MC No. 06-08-2005 without the Respondent NTC acting on petitioner's plea for previous extensions. The propriety for the issuance of MC No. 06-08-2005 is placed in issue on the ground of fairness. Petitioner as the rightful grantee thereof has the right, in the meantime, to enjoin its implementation.The CA explained that since it is only through a frequency that Atlocom can provide adequate broadcast service to the public, the withdrawal of frequency assignment without observance of due process defeats its legislative grant and reduces Atlocom to a mere repository of transmitters and equipment devoid of any purpose or value. It cited the following provisions of R.A. No. 8605:chanRoblesvirtualLawlibrary
We are not unaware of Our Resolution promulgated on August 12, 2011 denying petitioner's plea for the ancillary remedy of both prohibitory and/or mandatory injunction. Indeed, as of said date, the denial of petitioner's prayer is appropriate. We have now the complete facts of the case and, as the legal consequence of Our declaration that the RTC committed grave abuse of discretion in issuing the assailed orders, We consider it proper to enjoin the Respondent NTC from implementing Memorandum Circular No. 06-08-2005, but insofar as the frequencies ranging from 2572-2596 Mhz are involved and for its Co-Respondent LBNI from using the aforestated frequencies. This is not to preempt the RTC of whatever judgment it may thereafter issue with respect to the merits of the case before it but is issued in order to maintain the status quo in view of petitioner's claim of a breach of due process and a continuing violation of its right over the aforestated frequencies.22
SEC. 3. Prior Approval of the National Telecommunications Commission. - The grantee shall secure from the National Telecommunications Commission, hereinafter referred to as the Commission, the appropriate permits and licenses for the construction and operation of its stations, transmitters or facilities and shall not use any frequency in the radio and television spectrum without having been authorized by the Commission. The Commission, however, shall not unreasonably withhold or delay the grant of any such authority.On the withdrawal of the frequencies previously identified for Atlocom, the CA insisted that NTC did not observe due process, viz.:chanRoblesvirtualLawlibrary
x x x x
SEC. 6. Right of Government. x x x
The radio spectrum is a finite resource that is a part of the national patrimony and the use thereof is a privilege conferred upon the grantee by the State and may be withdrawn anytime, after due process. (Italics supplied)
x x x While it is true that there was a publication of a Notice of Public Hearing on June 21, 2005 before the issuance of Memorandum Circular No. 06-08-2005 on August 23, 2005, the fact is, the publication or notice was a general one and was not meant to dispose of petitioner's previous requests for an extension of its provisional authority and/or application for permit to purchase equipment. The order which dealt with these requests was the Order dated December 23, 2008, which was issued almost four (4) years after the filing of the first request on April 5, 2004 and almost three (3) years from the issuance of Memorandum Circular No. 06-08-2005. Withal and subject to whatever proof it may submit to the RTC regarding the delay, the Respondent NTC should have first acted on petitioner's requests for extension before setting for public hearing the re-allocation of the frequencies.23We do not concur with the CA in holding that NTC's inaction or delay on Atlocom's application for extension of PA had violated the latter's right to due process because it resulted in depriving Atlocom of the use of frequencies which were re-allocated through the issuance of MC 06-08-2005. Such declaration rather conveys an inaccurate picture of the regulatory process for public broadcasting and telecommunications services.
SEC. 4. Declaration of National Policy. - Telecommunications is essential to the economic development, integrity and security of the Philippines, and as such shall be developed and administered as to safeguard, enrich and strengthen the economic, cultural, social and political fabric of the Philippines. The growth and development of telecommunications services shall be pursued in accordance with the following policies:ChanRoblesVirtualawlibraryAs a grantee of PA, Atlocom can only invoke the condition in MC 06-08-2005 that "[t]he transfer of previously authorized persons or entities operating radio stations within the above listed radio frequency bands shall be governed by Rule 603 of MC 3-3-96."28 Said rule states:chanRoblesvirtualLawlibrary
x x x x
c) The radio frequency spectrum is a scarce public resource that shall be administered in the public interest and in accordance with international agreements and conventions to which the Philippines is a party and granted to the best qualified. The government shall allocate the spectrum to service providers who will use it efficiently and effectively to meet public demand for telecommunications service and may avail of new and cost effective technologies in the use of methods for its utilization;
x x x x
SEC. 15. Radio Frequency Spectrum. - The radio frequency spectrum allocation and assignment shall be subject to periodic review. The use thereof shall be subject to reasonable spectrum user fees. Where demand for specific frequencies exceed availability, the Commission shall hold open tenders for the same and ensure wider access to this limited resource.chanroblesvirtuallawlibrary
603. TRANSFER OF AFFECTED AUTHORIZED RADIO FREQUENCY USERConsidering that Atlocom has not even launched its MMDS network nor constructed radio stations, it is doubtful whether Atlocom can exercise the foregoing rights of an affected frequency user. Neither can Atlocom attribute its non-operational state to the delayed action on its motion for extension of PA. Among the conditions of its PA is the commencement of the construction and installation of its station within six months from issuance of the order granting it the provisional authority and its complete three months thereafter. Perusal of the motion for extension reveals that Atlocom at the time was still in the process of identifying and finalizing arrangements with its potential investors for the establishment of a nationwide MMDS network coverage.
a. The commission shall allocate available radio frequencies for assignment to those affected by the reallocation as a result of the review of the radio spectrum pursuant to Rule 601.
b. The cost of the transfer to new radio frequencies of affected authorized users shall be borne by the new assignees to the radio frequency channel/band where the radio frequencies of the previously authorized users fall within.
c. When the transfer to a new set of radio frequencies would require additional radio links, the cost of these links shall also be taken into consideration.
d. The manner and the cost of the transfer shall be negotiated in good faith between the affected authorized users and the assignees within 90 days from receipt of notice of relocation.
e. The Commission shall extend all the necessary assistance to all affected authorized users and shall mandate settlement if the parties fail to come to an agreement within 90 days from receipt of notice of relocation or when warranted under the circumstances.
f. Other means/mode of transmission comparable in quality to the existing facility shall be taken into consideration in the negotiation for the transfer.
g. Transfer of radio frequency assignment shall only take effect upon activation of service by relocated party using its newly assigned or relocated frequency as agreed or mandated.chanroblesvirtuallawlibrary
- In a memo addressed to the Chief, Broadcast Services Division dated January 10, 2006 (copy attached as Annex "B"); signed by then Deputy Commissioner Jorge V. Sarmiento, an inquiry was made to the Broadcast Services Division (BSD) regarding the status of usage of the frequency assignments granted to broadcast companies for MMDS use and to provide information thru the FMD of the latest related information to include among others permits/licenses issued to their favor; such information was needed in view of the re-allocation of the band in use for BWA (MC No. 06-08-2005);
- In a memo dated January 12, 2006 (copy attached as Annex "C") in compliance to the January 10, 2006 Memo, BSD's report shows under the column Latest Permits/License issued, that the latest permit or license issued for ATLOCOM was only its PA dated 10.08.03;
- In a memo addressed to the Records Verification Committee dated 06 September 2006 (copy attached as Annex "D") signed by then Commissioner Ronald Olivar Solis, citing a memo dated 21 September 2005 from then DOTC Secretary Leonardo R. Mendoza and Office Order No. 71-08-2006, the Records Verification Committee was directed to verify the status of several radio frequency bands therein listed, and to submit its report to include, among others, SUF payments, latest permits, and licenses issued and photocopies of the same;
- The Records Verification Committee reported in a memo dated 08 September 2006 (copy attached as Annex "E"), that with respect to Atlocom Wireless System, Inc., no record on file was found as to station location, frequency, license/permit no., radio station license or permit to purchase and possess;
- In a memo addressed to the Acting Chief BSD dated 07 January 2008 by then FMD Acting Chief Engr. Joselito C. Leynes (copy attached as Annex "F") [w]ith reference to the 03 January 2008 indorsement letter from BSD (copy attached as Annex "G) regarding the request of Atlocom Wireless System, Inc. for an allocation of a Digital Television (DTT) frequency (copy attached as Annex "H"), the BSD was informed of the following for guidance:chanRoblesvirtualLawlibrary
"that the proposed frequency band from Channel 14-20 and Channel 21-51 is not yet been finally allocated/approved for the purpose of DTT operation. Further, in the event that said frequency band re-allocation is approved, only broadcasting company with existing TV station/s and/or authority to operate is entitled for application/issuance of a DTT frequency channel."- A Memo addressed to the Chief, Frequency Management Division dated 27 July 2012 (copy attached as Annex "I") Chief, BSD in connection with the "certification" issued to Atlocom Wireless System, Inc. clarifies the following:chanRoblesvirtualLawlibrary
"that the frequencies stated in the subject certification were simply identified as candidate frequencies for the MMDS service under NTC Case No. 98-158, subject to final frequency assignment by the Frequency Management Division (FMD) of this Commission." and
"Furthermore inasmuch as frequency assignments covering the band 2500-2700 Mhz are issued by the Frequency Management Division (FMD), the undersigned is of the view that the determination of the assignment of the subject frequencies to Atlocom Wireless, or to any other entity, can best be certified by the Frequency Management Division (FMD)"- As per NTC Office Order No. 59-07-2003 dated July 30, 2003 (copy attached as Annex "J), all requests, applications requiring clearance and/or new radio frequency assignments, except for frequencies that have been pre-allocated and/or decentralized, shall be cleared with the Office of the Commissioner thru the Frequency Management Division:chanRoblesvirtualLawlibrary
"Henceforth, except for frequencies that have been pre-allocated and/or decentralized, all requests applications requiring clearance and/or new radio frequency assignment shall be cleared with the Office of the Commissioner thru the Frequency Management Division."- No records/documents were however found at the Frequency Management Division showing frequency assignment clearance for the use of ATLOCOM's MMDS system. (Emphasis supplied)
In light of all the foregoing established facts, we hold that the CA gravely abused its discretion when it issued a writ of preliminary injunction against the implementation of MC 06-08-2005 in the absence of a clear legal right on the part of Atlocom, and subsequently denying LBNFs offer to file counter-bond despite compliance with the requisites provided in Section 6 of Rule 58. However, with our ruling that the writ of preliminary injunction was improperly issued, hence, null and void, the matter of allowing LBNI to post a counter-bond has been rendered moot.
A final note. In its Memorandum,37 Atlocom argues that LBNI is part of mass media and its franchise violates Article XVI, Section 11 (1) of the Constitution38 because it is not wholly-owned by Filipino citizens.39chanrobleslaw
Unless properly raised and the very lis mota of the case, we do not pass upon constitutional issues. The resolution of the constitutional issues must be absolutely necessary for the determination of the case.40 In the spirit of deference to the acts of other constitutional departments and organs, issues before this Court should address only the narrowest issues necessary to determine whether the reliefs prayed for can be granted. As in this case, reliefs can be determined on procedural issues.
The main issue presented in this case is the validity of Atlocom's application for a writ of preliminary injunction against the NTC. This issue can be resolved without passing upon the constitutionality of LBNI's franchise. The resolution of the issue on LBNI's eligibility thus has no bearing on whether Atlocom has the right to be granted a frequency allocation for Broadband Wireless Access by the NTC. The constitutional issue raised by the respondent may be raised and resolved in proper cases when necessary in the future.
WHEREFORE, the petitions are GRANTED. The Decision dated June 29, 2012 and Resolution dated February 18, 2013 of the Court of Appeals in CA-G.R. SP No. 119868 are REVERSED and SET ASIDE.
Consequently, the writ of preliminary injunction issued in said case, if any, is hereby declared NULL and VOID.
The Orders dated December 9, 2010 and March 21, 2011 of the Regional Trial Court of Quezon City, Branch 95 in Q-09-65566 are hereby REINSTATED and UPHELD.
The Temporary Restraining Order issued by this Court on April 30, 2013 is hereby made PERMANENT.
No pronouncement as to costs.
SO ORDERED.cralawlawlibrary
Sereno, C. J., Leonardo-De Castro, Peralta, Bersamin, Perez, Mendoza, and Leonen, JJ., concur.
Carpio, Del Castillo, Perlas-Bernabe, and Jardeleza, JJ., no part.
Velasco, Jr., Brion, and Reyes, JJ., on leave.
Endnotes:
1 Rollo (G.R. No. 205875), pp. 42-57. Penned by Associate Justice Ramon A. Cruz with Associate Justices Rosalinda Asuncion-Vicente and Antonio L. Villamor concurring.
2 Id. at 59-64. Penned by Associate Justice Ramon A. Cruz with Associate Justices Rosalinda Asuncion-Vicente and Apolinario D. Bruselas Jr. concurring.
3 Id. at 113-119. Penned by Presiding Judge Henri Jean Paul B. Inting.
4 AN ACT GRANTING THE ATLOCOM WIRELESS SYSTEM, INC., A FRANCHISE TO INSTALL, OPERATE AND MAINTAIN A COMMERCIAL CABLE TELEVISION SYSTEM IN THE PHILIPPINES. Approved on March 26, 1998.
5 Rollo (G.R. No. 208916), pp. 101-107.
6 Id. at 105.
7 Rollo (G.R. No. 205875), pp. 818-819.
8 Id. at 820.
9 Id. at 825.
10 Id. at 821-824.
11 Id. at 184-185.
12 Id. at 72-74.
13 Id. at 75-92.
14 Id. at 817.
15 Id. at 177-180. Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Josefina Guevara-Salonga and Franchilo N. Diamante concurring.
16 Id. at 54-55.
17Urbanes, Jr. v. Court of Appeals, 407 Phil. 856, 866 (2001).
18Sy v. Autobus Transport Systems, Inc., G.R. No. 176898, December 3, 2012, 686 SCRA 707, 717-718, citing City Government of Butuan v. Consolidated Broadcasting System, Inc., 651 Phil. 37, 54 (2010).
19The Incorporators of Mindanao Institute, Inc. v. The United Church of Christ in the Philippines, G.R. No. 171765, March 21, 2012, 668 SCRA 637, 647.
20 Id. at 648-649.
21Sy v. Autobus Transport Systems, Inc., supra note 18, at 721-722.
22Rollo (G.R. 205875), pp. 53-54.
23 Id. at 50.
24 Supra note 14.
25Rollo (G.R. No. 208916), pp. 109-114; rollo (G.R. No. 205875), pp. 181-183.
26 CA rollo, pp. 387-394, 406-481.
27Republic of the Philippines v. Express Telecommunication Co., Inc., 424 Phil. 372, 396 (2002), citing National Semiconductor (HK) Distribution, Ltd. v. NLRC, 353 Phil. 551, 558 (1998).
28Rollo (G.R. No. 205875), p. 185.
29City Government of Butuan v. Consolidated Broadcasting System, Inc., supra note 18, at 55.
30Thunder Security and Investigation Agency/Lasala v. NFA (Region I), et al., 670 Phil. 351, 361 (2011).
31Overseas Workers Welfare Administration v. Chavez, 551 Phil. 890, 915 (2007), citing Tayag v. Lacson, G.R. No. 134971, March 25, 2004, 426 SCRA 282, 298-299.
32 SEC. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. - The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.
33Sps. Yap v. International Exchange Bank, 573 Phil. 515, 529 (2008).
34Rollo (G.R. No. 205875), pp. 282-285.
35 Id. at 190-192.
36 CA rollo, pp. 841-853 (with attachments).
37 See rollo, pp. 760, 782-789. The issue raised by Atlocom reads:ChanRoblesVirtualawlibrary
BEING CONTINOUSLY ENGAGED, ALBEIT UNLAWFULLY, IN BROADCASTING BUSINESS IN VIOLATION OF ITS CURRENT FRANCHISE, R.A. NO. 10183, PETITIONER IS CONSIDERED A MASS MEDIA COMPANY. THUS, FOR HAVING SUBSTANTIAL FOREIGN EQUITY, IT GROSSLY CONTRAVENED SECTION 11, ARTICLE XVI OF THE CONSTITUTION.
38 The provision reads:ChanRoblesVirtualawlibrary
Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.
The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed.
39 See rollo, p. 783.
40 See People v. Vera, 65 Phil. 56 (1937); See also Laurel v. Garcia, G.R. No. 92013, July 25, 1990, 187 SCRA 797; Sotto v. Commission on Elections, 11 Phil. 516 (1946); Alvarez v. PICOP Resources, 538 Phil. 348 (2006); General v. Urro, 662 Phil. 132 (2011); Garcia v. Executive Secretary, 602 Phil. 64 (2009); Liban v. Gordon, 654 Phil. 680 (2011).chanroblesvirtuallawlibrary