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Republic of the Philippines

G.R. No. 147096 January 15, 2002
COMMSSON, petitioner,
NC., respondents.
G.R. No. 147210 January 15, 2002
B)+)N TELECOMMUNC)TONS ,Bayan&#-., NC., petitioner,
E*PRESS TELECOMMUNC)TON CO., NC. ,E/&#-0o1., respondent.
On Dece"ber #$, %$$#, International &o""unications &orporation 'no( )a*an Teleco""unications,
Inc. or )a*antel+ filed an application (ith the National Teleco""unications &o""ission 'NT&+ for a
&ertificate of Public &onvenience or Necessit* '&P&N+ to install, operate and "aintain a di,ital
&ellular Mobile Telephone S*ste"-Service '&MTS+ (ith pra*er for a Provisional .uthorit* 'P.+. The
application (as doc/eted as NT& &ase No. $#!012.%
Shortl* thereafter, or on 3anuar* ##, %$$4, the NT& issued Me"orandu" &ircular No. 0!%!$4 directin,
all interested applicants for nation(ide or re,ional &MTS to file their respective applications before the
&o""ission on or before Februar* %5, %$$4, and deferrin, the acceptance of an* application filed after
said date until further orders.#
On Ma* 2, %$$4, and prior to the issuance of an* notice of hearin, b* the NT& (ith respect to
)a*antel6s ori,inal application, )a*antel filed an ur,ent ex-parte "otion to ad"it an a"ended
application.4 On Ma* %7, %$$4, the notice of hearin, issued b* the NT& (ith respect to this a"ended
application (as published in the Manila &hronicle. &opies of the application as (ell as the notice of
hearin, (ere "ailed to all affected parties. Subse8uentl*, hearin,s (ere conducted on the a"ended
application. )ut before )a*antel could co"plete the presentation of its evidence, the NT& issued an
Order dated Dece"ber %$, %$$4 statin,9
In vie( of the recent ,rant of t(o '#+ separate Provisional .uthorities in favor of IS:.&OM
and ;M&R, Inc., (hich resulted in the closin, out of all available fre8uencies for the service
bein, applied for b* herein applicant, and in order that this case "a* not re"ain pendin, for an
indefinite period of ti"e, .S PR.<=D FOR, let this case be, as it is, hereb* ordered
.R&>IV=D (ithout pre?udice to its reinstate"ent if and (hen the re8uisite fre8uenc* beco"es
On 3une %1, %$$1, the NT& issued Me"orandu" &ircular No. 5!2!$1 re!allocatin, five '5+ "e,ahert@
'M>@+ of the radio fre8uenc* spectru" for the epansion of &MTS net(or/s. The re!allocated 5 M>@
(ere ta/en fro" the follo(in, bands9 %74A!%74#.5 - %1#5!%1#7.5 M>@ and %74#.5!%745 - %1#7.5!%14A
:i/e(ise, on March #4, %$$$, Me"orandu" &ircular No. 4!4!$$ (as issued b* the NT& re!allocatin,
an additional five '5+ M>@ fre8uencies for &MTS service, na"el*9 %745!%747.5 - %14A!%14#.5 M>@B
%747.5!%70A - %14#.5!%145 M>@B %70A!%70#.5 - %145!%147.5 M>@B and %70#.5!%705 - %147.5!%10A
On Ma* %7, %$$$, )a*antel filed an =!Parte Motion to Revive &ase,7 citin, the availabilit* of ne(
fre8uenc* bands for &MTS operators, as provided for under Me"orandu" &ircular No. 4!4!$$.
On Februar* %, #AAA, the NT& ,ranted )a*anTel6s "otion to revive the latter6s application and set the
case for hearin,s on Februar* $, %A, %5, %7 and ##, #AAA.1 The NT& noted that the application (as
ordered archived (ithout pre?udice to its reinstate"ent if and (hen the re8uisite fre8uenc* shall
beco"e available.
Respondent =press Teleco""unication &o., Inc. '=telco"+ filed in NT& &ase No. $#!012 an
Opposition 'Cith Motion to Dis"iss+ pra*in, for the dis"issal of )a*antel6s application. $ =telco"
ar,ued that )a*antel6s "otion sou,ht the revival of an archived application filed al"ost ei,ht '1+ *ears
a,o. Thus, the docu"entar* evidence and the alle,ations of respondent )a*antel in this application are
all outdated and should no lon,er be used as basis of the necessit* for the proposed &MTS service.
Moreover, =telco" alle,ed that there (as no public need for the service applied for b* )a*antel as the
present five &MTS operators !!! =telco", ;lobe Teleco", Inc., S"art &o""unication, Inc., Pilipino
Telephone &orporation, and Isla &o""unication &orporation, Inc. !!! "ore than ade8uatel* addressed
the "ar/et de"and, and all are in the process of enhancin, and epandin, their respective net(or/s
based on recent technolo,ical develop"ents.
=telco" li/e(ise contended that there (ere no available radio fre8uencies that could acco""odate a
ne( &MTS operator as the fre8uenc* bands allocated in NT& Me"orandu" &ircular No. 4!4!$$ (ere
intended for and had in fact been applied for b* the eistin, &MTS operators. The NT&, in its
Me"orandu" &ircular No. 0!%!$4, declared it its polic* to defer the acceptance of an* application for
&MTS. .ll the fre8uenc* bands allocated for &MTS use under the NT&6s Me"orandu" &ircular No.
5!%%!11 and Me"orandu" &ircular No. #!%#!$# had alread* been allocated to the eistin, &MTS
operators. Finall*, =telco" pointed out that )a*antel is its substantial stoc/holder to the etent of
about 02D of its outstandin, capital stoc/, and )a*antel6s application under"ines the ver* operations
of =telco".
On March %4, #AAA, )a*antel filed a &onsolidated Repl*-&o""ent,%A statin, that the opposition (as
actuall* a "otion see/in, a reconsideration of the NT& Order revivin, the instant application, and thus
cannot d(ell on the "aterial alle,ations or the "erits of the case. Further"ore, =telco" cannot clai"
that fre8uencies (ere not available inas"uch as the allocation and assi,n"ent thereof rest solel* on the
discretion of the NT&.
In the "eanti"e, the NT& issued on March $, #AAA Me"orandu" &ircular No. $!4!#AAA, re!allocatin,
the follo(in, radio fre8uenc* bands for assi,n"ent to eistin, &MTS operators and to public
teleco""unication entities (hich shall be authori@ed to install, operate and "aintain &MTS net(or/s,
na"el*9 %705!%75AM>@ - %10A!%105M>@B %75A!%775M>@ - %105!%15AM>@B %725!%77AM>@ - %12A!
%125M>@B and %77A!%775M>@ - %125!%17AM>@.%%
On Ma* 4, #AAA, the NT& issued an Order ,rantin, in favor of )a*antel a provisional authorit* to
operate &MTS service.%# The Order stated in pertinent part9
On the issue of le,al capacit* on the part of )a*antel, this &o""ission has alread* ta/en notice
of the chan,e in na"e of International &o""unications &orporation to )a*an
Teleco""unications, Inc. Thus, in the Decision entered in NT& &ase No. $4!#10-$0!#AA dated
%$ 3ul* %$$$, it (as reco,ni@ed that )a*an Teleco""unications, Inc., (as for"erl* na"ed
International &o""unications &orp. )a*antel and I&& Teleco"s, Inc. are one and the sa"e
entit*, and it necessaril* follo(s that (hat le,al capacit* I&& Teleco"s has or has ac8uired is
also the le,al capacit* that )a*antel possesses.
On the alle,ation that the &o""ission has co""itted an error in allo(in, the revival of the
instant application, it appears that the Order dated %0 Dece"ber %$$4 archivin, the sa"e (as
anchored on the non!availabilit* of fre8uencies for &MTS. In the sa"e Order, it (as epressl*
stated that the archival hereof, shall be (ithout pre?udice to its reinstate"ent Eif and (hen the
re8uisite fre8uenc* beco"es available.E Inherent in the said Order is the prero,ative of the
&o""ission in revivin, the sa"e, sub?ect to prevailin, conditions. The Order of % Februar*
#AA%, cited the availabilit* of fre8uencies for &MTS, and based thereon, the &o""ission,
eercisin, its prero,ative, revived and reinstated the instant application. The fact that the
"otion for revival hereof (as "ade e!parte b* the applicant is of no "o"ent, so lon, as the
oppositors are ,iven the opportunit* to be later heard and present the "erits of their respective
oppositions in the proceedin,s.
On the alle,ation that the instant application is alread* obsolete and overta/en b* develop"ents,
the issue is (hether applicant has the le,al, financial and technical capacit* to underta/e the
proposed pro?ect. The deter"ination of such capacit* lies solel* (ithin the discretion of the
&o""ission, throu,h its applicable rules and re,ulations. .t an* rate, the oppositors are not
precluded fro" sho(in, evidence disputin, such capacit* in the proceedin,s at hand. On the
alle,ed non!availabilit* of fre8uencies for the proposed service in vie( of the pendin,
applications for the sa"e, the &o""ission ta/es note that it has issued Me"orandu" &ircular
$!4!#AAA, allocatin, additional fre8uencies for &MTS. The eli,ibilit* of eistin, operators (ho
applied for additional fre8uencies shall be treated and resolved in their respective applications,
and are not in issue in the case at hand.
.ccordin,l*, the Motions for Reconsideration filed b* SM.RT&OM and ;:O)=
T=:=&OMS-IS:.&OM and the Motion to Dis"iss filed b* =FT=:&OM are hereb* D=NI=D
for lac/ of "erit.%4
The ,rant of the provisional authorit* (as anchored on the follo(in, findin,s9
%. Due to the operational "er,ers bet(een S"art &o""unications, Inc. and Pilipino Telephone
&orporation 'Piltel+ and bet(een ;lobe Teleco", Inc. ';lobe+ and Isla &o""unications, Inc.
'Islaco"+, free and effective co"petition in the &MTS "ar/et is threatened. The fifth operator,
=telco", cannot provide ,ood co"petition in as "uch as it provides service usin, the analo,
.MPS. The ;SM s*ste" do"inates the "ar/et.
#. There are at present t(o applicants for the assi,n"ent of the fre8uencies in the %.7 ;h@ and
%.1 ;h@ allocated to &MTS, na"el* ;lobe and =telco". )ased on the nu"ber of subscribers
=telco" has, there appears to be no con,estion in its net(or/ ! a condition that is necessar* for
an applicant to be assi,ned additional fre8uencies. ;lobe has *et to prove that there is
con,estion in its net(or/ considerin, its operational "er,er (ith Islaco".
4. )ased on the reports sub"itted to the &o""ission, 01D of the total nu"ber of cities and
"unicipalities are still (ithout telephone service despite the "ore than 4 "illion installed lines
(aitin, to be subscribed.
%. To ensure effective co"petition in the &MTS "ar/et considerin, the operational "er,er of
so"e of the &MTS operators, ne( &MTS operators "ust be allo(ed to provide the service.
#. The re!allocated fre8uencies for &MTS of 4 bloc/s of 5 Mh@ # is sufficient for the nu"ber
of applicants should the applicants be 8ualified.
4. There is a need to provide service to so"e or all of the re"ainin, cities and "unicipalities
(ithout telephone service.
0. The sub"itted docu"ents are sufficient to deter"ine co"pliance to the technical
re8uire"ents. The applicant can be directed to sub"it details such as channelin, plans, eact
locations of cell sites, etc. as the pro?ect i"ple"entation pro,resses, actual area covera,e
ascertained and traffic data are "ade available. .pplicant appears to be technicall* 8ualified to
underta/e the proposed pro?ect and offer the proposed service.
N 3E4 O! T"E !OREGONG and considerin, that there is pri"a facie evidence to sho(
that .pplicant is le,all*, technicall* and financiall* 8ualified and that the proposed service is
technicall* feasible and econo"icall* viable, in the interest of public service, and in order to
facilitate the develop"ent of teleco""unications services in all areas of the countr*, as (ell as
to ensure health* co"petition a"on, authori@ed &MTS providers, let a PRO3SON)L
)UT"ORT+ ,P.).. be issued to .pplicant B)+)N TELECOMMUNC)TONS, NC.
authori@in, it to construct, install, operate and "aintain a Na&5on65'# C#--u-ar Mo(5-#
T#-#$7on# Sy%&#1% ,CMTS., sub?ect to the follo(in, ter"s and conditions (ithout pre?udice
to a final decision after co"pletion of the hearin, (hich shall be called (ithin thirt* '4A+ da*s
fro" ,rant of authorit*, in accordance (ith Section 4, Rule %5, Part IV of the &o""ission6s
Rules of Practice and Procedure. .%0
=telco" filed (ith the &ourt of .ppeals a petition for certiorari and prohibition,%5 doc/eted as &.!
;.R. SP No. 511$4, see/in, the annul"ent of the Order revivin, the application of )a*antel, the Order
,rantin, )a*antel a provisional authorit* to construct, install, operate and "aintain a nation(ide
&MTS, and Me"orandu" &ircular No. $!4!#AAA allocatin, fre8uenc* bands to ne( public
teleco""unication entities (hich are authori@ed to install, operate and "aintain &MTS.
On Septe"ber %4, #AAA, the &ourt of .ppeals rendered the assailed Decision,%2 the dispositive portion
of (hich reads9
4"ERE!ORE, the (rits of certiorari and prohibition pra*ed for are GR)NTE8. The Orders
of public respondent dated Februar* %, #AAA and Ma* 4, #AAA in NT& &ase No. $#!012 are
hereb* )NNULLE8 an' SET )S8E and the ."ended .pplication of respondent )a*antel is
8SMSSE8 (ithout pre?udice to the filin, of a ne( &MTS application. The (rit of
preli"inar* in?unction issued under our Resolution dated .u,ust %5, #AAA, restrainin, and
en?oinin, the respondents fro" enforcin, the Orders dated Februar* %, #AAA and Ma* 4, #AAA in
the said NT& case is hereb* "ade per"anent. The Motion for Reconsideration of respondent
)a*antel dated .u,ust #1, #AAA is denied for lac/ of "erit.
)a*antel filed a "otion for reconsideration of the above decision.%1 The NT&, represented b* the
Office of the Solicitor ;eneral 'OS;+, also filed its o(n "otion for reconsideration.%$ On the other
hand, =telco" filed a Motion for Partial Reconsideration, pra*in, that NT& Me"orandu" &ircular
No. $!4!#AAA be also declared null and void.#A
On Februar* $, #AA%, the &ourt of .ppeals issued the assailed Resolution den*in, all of the "otions for
reconsideration of the parties for lac/ of "erit.#%
>ence, the NT& filed the instant petition for revie( on certiorari, doc/eted as ;.R. No. %07A$2,
raisin, the follo(in, issues for resolution of this &ourt9
.. Chether or not the Order dated Februar* %, #AAA of the petitioner (hich revived the
application of respondent )a*antel in NT& &ase No. $#!012 violated respondent =telco"6s
ri,ht to procedural due process of la(B
). Chether or not the Order dated Ma* 4, #AAA of the petitioner ,rantin, respondent )a*antel a
provisional authorit* to operate a &MTS is in substantial co"pliance (ith NT& Rules of
Practice and Procedure and Me"orandu" &ircular No. $!%0!$A dated Septe"ber 0, %$$A.##
Subse8uentl*, )a*antel also filed its petition for revie(, doc/eted as ;.R. No. %07#%A, assi,nin, the
follo(in, errors9
R=VIV.: OF NT& &.S= NO. $#!012 .N&>OR=D ON . =F!P.RT= MOTION TO
P.RT OF T>= NT&.
OF T>= NT& .S T>= .;=N&< OF ;OV=RNM=NT CIT> T>= SO:= DIS&R=TION
IT D=&:.R=D T>.T T>= .R&>IV=D .PP:I&.TION S>OG:D )= D==M=D .S . N=C
T>= ).<.NT=: .PP:I&.TION C.S . V.:ID .&T ON T>= P.RT OF T>= NT& =V=N
IN T>= .)S=N&= OF . SP=&IFI& RG:= ON .R&>IVIN; OF &.S=S SIN&= RG:=S OF
PRO&=DGR= .R=, .S . M.TT=R OF &OGRS=, :I)=R.::< &ONSTRG=D IN
T>= ;R=.T=R >I=R.R&>< OF PG):I& C=:F.R= .ND PG):I& INT=R=ST.
T>= PRO&==DIN;S IN T>= NT& GND=R S=&. 4, RG:= % OF T>= NT& R=VIS=D
.R&>IVIN; OF ).<.NT=:6S .PP:I&.TION C.S VIO:.TIV= OF T>= .::=;=D
D=&:.R=D PO:I&< OF T>= ;OV=RNM=NT ON T>= TR.NSP.R=N&< .ND
OF R... NO. 7$#5.
IF. T>= &OGRT OF .PP=.:S S=RIOGS:< =RR=D IN D=&:.RIN; T>.T T>= M.< 4,
i. &ontrar* to the findin, of the &ourt of .ppeals, there (as no violation of the NT& Rule that
the le,al, technical, financial and econo"ic docu"entations in support of the pra*er for
provisional authorit* should first be sub"itted.
ii. &ontrar* to the findin, of the &ourt of .ppeals, there (as no violation of Sec. 4, Rule %5 of
the NT& Rules of Practice and Procedure that a "otion "ust first be filed before a provisional
authorit* could be issued.
iii. &ontrar* to the findin, of the &ourt of .ppeals that a plea for provisional authorit*
necessitates a notice and hearin,, the ver* rule cited b* the petitioner 'Section 5, Rule 0 of the
NT& Rules of Practice and Procedure+ provides other(ise.
iv. &ontrar* to the findin, of the &ourt of .ppeals, ur,ent public need is not the onl* basis for
the ,rant of a provisional authorit* to an applicantB
v. &ontrar* to the findin, of the &ourt of .ppeals, there (as no violation of the constitutional
provision on the ri,ht of the public to infor"ation (hen the &o""on &arrier .uthori@ation
Depart"ent '&&.D+ prepared its evaluation report.#4
&onsiderin, the identit* of the "atters involved, this &ourt resolved to consolidate the t(o petitions.#0
.t the outset, it is (ell to discuss the nature and functions of the NT&, and anal*@e its po(ers and
authorit* as (ell as the la(s, rules and re,ulations that ,overn its eistence and operations.
The NT& (as created pursuant to =ecutive Order No. 502, pro"ul,ated on 3ul* #4, %$7$. It assu"ed
the functions for"erl* assi,ned to the )oard of &o""unications and the Teleco""unications &ontrol
)ureau, (hich (ere both abolished under the said =ecutive Order. Previousl*, the NT&6s functions
(ere "erel* those of the defunct Public Service &o""ission 'PS&+, created under &o""on(ealth .ct
No. %02, as a"ended, other(ise /no(n as the Public Service .ct, considerin, that the )oard of
&o""unications (as the successor!in!interest of the PS&. Gnder =ecutive Order No. %#5!., issued in
.pril %$17, the NT& beca"e an attached a,enc* of the Depart"ent of Transportation and
In the re,ulator* teleco""unications industr*, the NT& has the sole authorit* to issue &ertificates of
Public &onvenience and Necessit* '&P&N+ for the installation, operation, and "aintenance of
co""unications facilities and services, radio co""unications s*ste"s, telephone and tele,raph
s*ste"s. Such po(er includes the authorit* to deter"ine the areas of operations of applicants for
teleco""unications services. Specificall*, Section %2 of the Public Service .ct authori@es the then
PS&, upon notice and hearin,, to issue &ertificates of Public &onvenience for the operation of public
services (ithin the Philippines E(henever the &o""ission finds that the operation of the public service
proposed and the authori@ation to do business (ill pro"ote the public interests in a proper and suitable
"anner.E#5 The procedure ,overnin, the issuance of such authori@ations is set forth in Section #$ of
the said .ct, the pertinent portion of (hich states9
.ll hearin,s and investi,ations before the &o""ission shall be ,overned b* rules adopted b*
the &o""ission, and in the conduct thereof, the &o""ission shall not be bound b* the
technical rules of le,al evidence. .
In ,rantin, )a*antel the provisional authorit* to operate a &MTS, the NT& applied Rule %5, Section 4
of its %$71 Rules of Practice and Procedure, (hich provides9
Sec. 4. Provisional Relief. !!! Gpon the filin, of an application, co"plaint or petition or at an*
sta,e thereafter, the )oard "a* ,rant on "otion of the pleader or on its o(n initiative, the relief
pra*ed for, based on the pleadin,, to,ether (ith the affidavits and supportin, docu"ents
attached thereto, (ithout pre?udice to a final decision after co"pletion of the hearin, (hich
shall be called (ithin thirt* '4A+ da*s fro" ,rant of authorit* as/ed for. 'underscorin, ours+
Respondent =telco", ho(ever, contends that the NT& should have applied the Revised Rules (hich
(ere filed (ith the Office of the National .d"inistrative Re,ister on Februar* 4, %$$4. These Revised
Rules deleted the phrase Eon its o(n initiativeBE accordin,l*, a provisional authorit* "a* be issued onl*
upon filin, of the proper "otion before the &o""ission.
In ans(er to this ar,u"ent, the NT&, throu,h the Secretar* of the &o""ission, issued a certification to
the effect that inas"uch as the %$$4 Revised Rules have not been published in a ne(spaper of ,eneral
circulation, the NT& has been appl*in, the %$71 Rules.
The absence of publication, coupled (ith the certification b* the &o""issioner of the NT& statin, that
the NT& (as still ,overned b* the %$71 Rules, clearl* indicate that the %$$4 Revised Rules have not
ta/en effect at the ti"e of the ,rant of the provisional authorit* to )a*antel. The fact that the %$$4
Revised Rules (ere filed (ith the GP :a( &enter on Februar* 4, %$$4 is of no "o"ent. There is
nothin, in the .d"inistrative &ode of %$17 (hich i"plies that the filin, of the rules (ith the GP :a(
&enter is the operative act that ,ives the rules force and effect. )oo/ VII, &hapter #, Section 4 thereof
"erel* states9
Filing. !!! '%+ =ver* a,enc* shall file (ith the Gniversit* of the Philippines :a( &enter three
'4+ certified copes of ever* rule adopted b* it. Rules in force on the date of effectivit* of this
&ode (hich are not filed (ithin three '4+ "onths fro" the date shall not thereafter be the basis
of an* sanction a,ainst an* part* or persons.
'#+ The records officer of the a,enc*, or his e8uivalent functionar*, shall carr* out the
re8uire"ents of this section under pain or disciplinar* action.
'4+ . per"anent re,ister of all rules shall be /ept b* the issuin, a,enc* and shall be open to
public inspection.
The National .d"inistrative Re,ister is "erel* a bulletin of codified rules and it is furnished onl* to
the Office of the President, &on,ress, all appellate courts, the National :ibrar*, other public offices or
a,encies as the &on,ress "a* select, and to other persons at a price sufficient to cover publication and
"ailin, or distribution costs.#2 In a si"ilar case, (e held9
This does not i"pl* ho(ever, that the sub?ect .d"inistrative Order is a valid eercise of such
8uasi!le,islative po(er. The ori,inal .d"inistrative Order issued on .u,ust 4A, %$1$, under
(hich the respondents filed their applications for i"portations, (as not published in the Official
;a@ette or in a ne(spaper of ,eneral circulation. The 8uestioned .d"inistrative Order, le,all*,
until it is published, is invalid (ithin the contet of .rticle # of &ivil &ode, (hich reads9
E.rticle #. :a(s shall ta/e effect after fifteen da*s follo(in, the co"pletion of their
publication in the Official ;a@ette 'or in a ne(spaper of ,eneral circulation in the
Philippines+, unless it is other(ise provided. E
The fact that the a"end"ents to .d"inistrative Order No. SO&P=& 1$!A1!A% (ere filed (ith,
and published b* the GP :a( &enter in the National .d"inistrative Re,ister, does not cure the
defect related to the effectivit* of the .d"inistrative Order.
This &ourt, in Taada vs. Tuvera (G.R. No. L-63!"# $ece%&er '# !(6# !)6 *+R, ))6-
stated, thus9
ECe hold therefore that all statutes, includin, those of local application and private la(s,
shall be published as a condition for their effectivit*, (hich shall be,in fifteen da*s after
publication unless a different effectivit* is fied b* the le,islature.
&overed b* this rule are presidential decrees and eecutive orders pro"ul,ated b* the
President in the eercise of le,islative po(er or, at present, directl* conferred b* the
&onstitution. .d"inistrative Rules and Re,ulations "ust also be published if their
purpose is to enforce or i"ple"ent eistin, la( pursuant also to a valid dele,ation.
Interpretative re,ulations and those "erel* internal in nature, that is, re,ulatin, onl* the
personnel of the ad"inistrative a,enc* and not the public, need not be published.
Neither is publication re8uired of the so!called letters of instructions issued b*
ad"inistrative superiors concernin, the rules or ,uidelines to be follo(ed b* their
subordinates in the perfor"ance of their duties.

Ce a,ree that the publication "ust be in full or it is no publication at all since its
purpose is to infor" the public of the contents of the la(s.E
The .d"inistrative Order under consideration is one of those issuances (hich should be
published for its effectivit*, since its purpose is to enforce and i"ple"ent an eistin, la(
pursuant to a valid dele,ation, i.e., P.D. %A7%, in relation to :OI 000 and =O %44.#7
Thus, publication in the Official ;a@ette or a ne(spaper of ,eneral circulation is a condition sine .ua
non before statutes, rules or re,ulations can ta/e effect. This is eplicit fro" =ecutive Order No. #AA,
(hich repealed .rticle # of the &ivil &ode, and (hich states that9
:a(s shall ta/e effect after fifteen da*s follo(in, the co"pletion of their publication either in
the Official ;a@ette or in a ne(spaper of ,eneral circulation in the Philippines, unless it is
other(ise provided.#1
The Rules of Practice and Procedure of the NT&, (hich i"ple"ents Section #$ of the Public Service
.ct '&... %02, as a"ended+, fall s8uarel* (ithin the scope of these la(s, as eplicitl* "entioned in the
case Taada v. Tuvera.#$
Our pronounce"ent in Taada vs. Tuvera is clear and cate,orical. .d"inistrative rules and
re,ulations "ust be published if their purpose is to enforce or i"ple"ent eistin, la( pursuant
to a valid dele,ation. The onl* eceptions are interpretative re,ulations, those "erel* internal in
nature, or those so!called letters of instructions issued b* ad"inistrative superiors concernin,
the rules and ,uidelines to be follo(ed b* their subordinates in the perfor"ance of their
>ence, the %$$4 Revised Rules should be published in the Official ;a@ette or in a ne(spaper of ,eneral
circulation before it can ta/e effect. =ven the %$$4 Revised Rules itself "andates that said Rules shall
ta/e effect onl* after their publication in a ne(spaper of ,eneral circulation.4% In the absence of such
publication, therefore, it is the %$71 Rules that ,overns.
In an* event, re,ardless of (hether the %$71 Rules or the %$$4 Revised Rules should appl*, the records
sho( that the a"ended application filed b* )a*antel in fact included a "otion for the issuance of a
provisional authorit*. >ence, it cannot be said that the NT& ,ranted the provisional authorit* %otu
proprio. The &ourt of .ppeals, therefore, erred (hen it found that the NT& issued its Order of Ma* 4,
#AAA on its o(n initiative. This "uch is ac/no(led,ed in the Decision of the &ourt of .ppeals9
.s pra*er, I&& as/ed for the i""ediate ,rant of provisional authorit* to construct, install,
"aintain and operate the sub?ect service and to char,e the proposed rates and after due notice
and hearin,, approve the instant application and ,rant the correspondin, certificate of public
convenience and necessit*.4#
The &ourt of .ppeals also erred (hen it declared that the NT&6s Order archivin, )a*antel6s application
(as null and void. The archivin, of cases is a (idel* accepted "easure desi,ned to shelve cases in
(hich no i""ediate action is epected but (here no ,rounds eist for their outri,ht dis"issal, albeit
(ithout pre?udice. It saves the petitioner or applicant fro" the added trouble and epense of re!filin, a
dis"issed case. Gnder this sche"e, an inactive case is /ept alive but held in abe*ance until the situation
obtains (herein action thereon can be ta/en.
In the case at bar, the said application (as ordered archived because of lac/ of available fre8uencies at
the ti"e, and "ade sub?ect to reinstate"ent upon availabilit* of the re8uisite fre8uenc*. To be sure,
there (as nothin, irre,ular in the revival of the application after the condition therefor (as fulfilled.
Chile, as held b* the &ourt of .ppeals, there are no clear provisions in the Rules of the NT& (hich
epressl* allo( the archivin, of an* application, this recourse "a* be ?ustified under Rule %, Section #
of the %$71 Rules, (hich states9
Sec. #. *cope. I These rules ,overn pleadin,s, practice and procedure before the )oard of
&o""unications 'no/ NT++ in all "atters of hearin,, investi,ation and proceedin,s (ithin the
?urisdiction of the )oard. >o(ever, in the broader interest of ?ustice and in order to best serve
the public interest, the )oard "a*, in an* particular "atter, ecept it fro" these rules and appl*
such suitable procedure to i"prove the service in the transaction of the public business.
'underscorin, ours+
The &ourt of .ppeals ruled that the NT& co""itted ,rave abuse of discretion (hen it revived
)a*antel6s application based on an ex-parte "otion. In this re,ard, the pertinent provisions of the NT&
Sec. 5. 0x-parte 1otions. !!! =cept for "otions for provisional authori@ation of proposed
services and increase of rates, ex-parte "otions shall be acted upon b* the )oard onl* upon
sho(in, of ur,ent necessit* therefor and the ri,ht of the opposin, part* is not substantiall*
i"paired. 44
Thus, in cases (hich do not involve either an application for rate increase or an application for a
provisional authorit*, the NT& "a* entertain ex-parte "otions onl* (here there is an ur,ent necessit*
to do so and no ri,hts of the opposin, parties are i"paired.
The &ourt of .ppeals ruled that there (as a violation of the funda"ental ri,ht of =telco" to due
process (hen it (as not afforded the opportunit* to 8uestion the "otion for the revival of the
application. >o(ever, it "ust be noted that said Order referred to a si"ple revival of the archived
application of )a*antel in NT& &ase No. $#!0#2. .t this sta,e, it cannot be said that =telco"6s ri,ht
to procedural due process (as pre?udiced. It (ill still have the opportunit* to be heard durin, the full!
blo(n adversarial hearin,s that (ill follo(. In fact, the records sho( that the NT& has scheduled
several hearin, dates for this purpose, at (hich all interested parties shall be allo(ed to re,ister their
opposition. Ce have ruled that there is no denial of due process (here full!blo(n adversarial
proceedin,s are conducted before an ad"inistrative bod*.40 Cith =telco" havin, full* participated in
the proceedin,s, and indeed, ,iven the opportunit* to file its opposition to the application, there (as
clearl* no denial of its ri,ht to due process.
In 2aldivar vs. *andigan&a3an '%22 S&R. 4%2 J%$11K+, (e held that the ri,ht to be heard does
not onl* refer to the ri,ht to present verbal ar,u"ents in court. . part* "a* also be heard
throu,h his pleadin,s. Chere opportunit* to be heard is accorded either throu,h oral ar,u"ents
or pleadin,s, there is no denial of procedural due process. .s reiterated in National
*e%iconductor (45- $istri&ution# Ltd. vs. NLR+ ';.R. No. %#45#A, 3une #2, %$$1+, the essence
of due process is si"pl* an opportunit* to be heard, or as applied to ad"inistrative proceedin,s,
an opportunit* to eplain one6s side. >ence, in Navarro 666 vs. $a%aso '#02 S&R. #2A J%$$5K+,
(e held that a for"al or trial!t*pe hearin, is not at all ti"es and not in all instances essential.
Plainl*, petitioner (as not denied due process.45
=telco" had alread* entered its appearance as a part* and filed its opposition to the application. It (as
neither precluded nor barred fro" participatin, in the hearin,s thereon. Indeed, nothin,, not even the
Order revivin, the application, bars or prevents =telco" and the other oppositors fro" participatin, in
the hearin,s and adducin, evidence in support of their respective oppositions. The "otion to revive
could not have possibl* caused pre?udice to =telco" since the "otion onl* sou,ht the revival of the
application. It (as "erel* a preli"inar* step to(ards the resu"ption of the hearin,s on the application
of )a*antel. The latter (ill still have to prove its capabilit* to underta/e the proposed &MTS. Indeed,
in its Order dated Februar* %, #AAA, the NT& set several hearin, dates precisel* intended for the
presentation of evidence on )a*antel6s capabilit* and 8ualification. Notice of these hearin,s (ere sent
to all parties concerned, includin, =telco".
.s re,ards the chan,es in the personal circu"stances of )a*antel, the sa"e "a* be ventilated at the
hearin,s durin, )a*antel6s presentation of evidence. In fact, =telco" (as able to raise its ar,u"ents
on this "atter in the Opposition 'Cith Motion to Dis"iss+ anent the re!openin, and re!instate"ent of
the application of )a*antel. =telco" (as thus heard on this particular point.
:i/e(ise, the re8uire"ents of notice and publication of the application is no lon,er necessar* inas"uch
as the application is a "ere revival of an application (hich has alread* been published earlier. .t an*
rate, the records sho( that all of the five '5+ &MTS operators in the countr* (ere dul* notified and
(ere allo(ed to raise their respective oppositions to )a*antel6s application throu,h the NT&6s Order
dated Februar* %, #AAA.
It should be borne in "ind that a"on, the declared national policies under Republic .ct No. 7$#5,
other(ise /no(n as the Public Teleco""unications Polic* .ct of the Philippines, is the health*
co"petition a"on, teleco""unications carriers, to (it9
. health* co"petitive environ"ent shall be fostered, one in (hich teleco""unications carriers
are free to "a/e business decisions and to interact (ith one another in providin,
teleco""unications services, (ith the end in vie( of encoura,in, their financial viabilit* (hile
"aintainin, affordable rates.42
The NT& is clothed (ith sufficient discretion to act on "atters solel* (ithin its co"petence. &learl*,
the need for a health* co"petitive environ"ent in teleco""unications is sufficient i"petus for the
NT& to consider all those applicants (ho are (illin, to offer co"petition, develop the "ar/et and
provide the environ"ent necessar* for ,reater public service. This (as the intention that ca"e to li,ht
(ith the issuance of Me"orandu" &ircular $!4!#AAA, allocatin, ne( fre8uenc* bands for use of
&MTS. This "e"orandu" circular enu"erated the conditions prevailin, and the reasons (hich
necessitated its issuance as follo(s9
! the international accountin, rates are rapidl* declinin,, threatenin, the subsid* to the local
echan,e service as "andated in =O %A$ and R. 7$#5B
! the public teleco""unications entities (hich (ere obli,ated to install, operate and "aintain
local echan,e net(or/ have perfor"ed their obli,ations in var*in, de,reesB
! after "ore than three '4+ *ears fro" the perfor"ance of the obli,ations onl* 5#D of the total
nu"ber of cities and "unicipalities are provided (ith local telephone service.
! there are "er,ers and consolidations a"on, the eistin, cellular "obile telephone service
'&MTS+ providers threatenin, the efficienc* of co"petitionB
! there is a need to hasten the installation of local echan,e lines in unserved areasB
! there are eistin, &MTS operators (hich are eperiencin, con,estion in the net(or/ resultin,
to lo( ,rade of serviceB
! the consu"ers-custo"ers shall be ,iven the freedo" to choose &MTS operators fro" (hich
the* could ,et the service.47
&learl* spelled out is the need to provide enhanced co"petition and the re8uire"ent for "ore landlines
and teleco""unications facilities in unserved areas in the countr*. On both scores, therefore, there (as
sufficient sho(in, that the NT& acted (ell (ithin its ?urisdiction and in pursuance of its avo(ed duties
(hen it allo(ed the revival of )a*antel6s application.
Ce no( co"e to the issue of ehaustion of ad"inistrative re"edies. The rule is (ell!entrenched that a
part* "ust ehaust all ad"inistrative re"edies before resortin, to the courts. The pre"ature invocation
of the intervention of the court is fatal to one6s cause of action. This rule (ould not onl* ,ive the
ad"inistrative a,enc* an opportunit* to decide the "atter b* itself correctl*, but (ould also prevent the
unnecessar* and pre"ature resort to courts.41 In the case of Lope7 v. +it3 of 1anila,4$ (e held9
.s a ,eneral rule, (here the la( provides for the re"edies a,ainst the action of an
ad"inistrative board, bod* or officer, relief to courts can be sou,ht onl* after ehaustin, all
re"edies provided. The reason rests upon the presu"ption that the ad"inistrative bod*, if ,iven
the chance to correct its "ista/e or error, "a* a"end its decision on a ,iven "atter and decide it
properl*. Therefore, (here a re"ed* is available (ithin the ad"inistrative "achiner*, this
should be resorted to before resort can be "ade to the courts, not onl* to ,ive the ad"inistrative
a,enc* the opportunit* to decide the "atter b* itself correctl*, but also to prevent unnecessar*
and pre"ature resort to courts.
&learl*, =telco" violated the rule on ehaustion of ad"inistrative re"edies (hen it (ent directl* to
the &ourt of .ppeals on a petition for certiorari and prohibition fro" the Order of the NT& dated Ma*
4, #AAA, (ithout first filin, a "otion for reconsideration. It is (ell!settled that the filin, of a "otion for
reconsideration is a prere8uisite to the filin, of a special civil action for certiorari.
The ,eneral rule is that, in order to ,ive the lo(er court the opportunit* to correct itself, a
"otion for reconsideration is a prere8uisite to certiorari. It also basic that petitioner "ust
ehaust all other available re"edies before resortin, to certiorari. This rule, ho(ever, is sub?ect
to certain eceptions such as an* of the follo(in,9 '%+ the issues raised are purel* le,al in
nature, '#+ public interest is involved, '4+ etre"e ur,enc* is obvious or '0+ special
circu"stances (arrant i""ediate or "ore direct action.0A
This case does not fall under an* of the reco,ni@ed eceptions to this rule. .lthou,h the Order of the
NT& dated Ma* 4, #AAA ,rantin, provisional authorit* to )a*antel (as i""ediatel* eecutor*, it did
not preclude the filin, of a "otion for reconsideration. Gnder the NT& Rules, a part* adversel*
affected b* a decision, order, rulin, or resolution "a* (ithin fifteen '%5+ da*s file a "otion for
reconsideration. That the Order of the NT& beca"e i""ediatel* eecutor* does not "ean that the
re"ed* of filin, a "otion for reconsideration is foreclosed to the petitioner.0%
Further"ore, =telco" does not en?o* the ,rant of an* vested interest on the ri,ht to render a public
service. The &onstitution is 8uite e"phatic that the operation of a public utilit* shall not be eclusive.
No franchise, certificate, or an* other for" of authori@ation for the operation of a public utilit*
shall be ,ranted to citi@ens of the Philippines or to corporations or,ani@ed under the la(s of the
Philippines at least sit* per centu% of (hose capital is o(ned b* such citi@ens, nor shall such
franchise, certificate or authori@ation be eclusive in character or for a lon,er period than fift*
*ears. Neither shall an* such franchise or ri,ht be ,ranted ecept under the condition that it
shall be sub?ect to a"end"ent, alteration, or repeal b* the &on,ress (hen the co""on ,ood so
re8uires. .0#
In Radio +o%%unications of t8e P8ils.# 6nc. v. National Teleco%%unications +o%%ission#04 (e held9
It is (ell (ithin the po(ers of the public respondent to authori@e the installation b* the private
respondent net(or/ of radio co""unications s*ste"s in &atar"an, Sa"ar and San 3ose,
Mindoro. Gnder the circu"stances, the "ere fact that the petitioner possesses a franchise to put
up and operate a radio co""unications s*ste" in certain areas is not an insuperable obstacle to
the public respondent6s issuin, the proper certificate to an applicant desirin, to etend the sa"e
services to those areas. The &onstitution "andates that a franchise cannot be eclusive in nature
nor can a franchise be ,ranted ecept that it "ust be sub?ect to a"end"ent, alteration, or even
repeal b* the le,islature (hen the co""on ,ood so re8uires. '.rt. FII, sec. %% of the %$12
&onstitution+. There is an epress provision in the petitioner6s franchise (hich provides
co"pliance (ith the above "andate 'R. #A42, sec. %5+.
=ven in the provisional authorit* ,ranted to =telco", it is epressl* stated that such authorit* is not
eclusive. Thus, the &ourt of .ppeals erred (hen it ,ave due course to =telco"6s petition and ruled
that it constitutes an eception to the rule on ehaustion of ad"inistrative re"edies.
.lso, the &ourt of .ppeals erred in annullin, the Order of the NT& dated Ma* 4, #AAA, ,rantin,
)a*antel a provisional authorit* to install, operate and "aintain &MTS. The ,eneral rule is that purel*
ad"inistrative and discretionar* functions "a* not be interfered (ith b* the courts. Thus, in Lacuesta
v. 4errera#00 it (as held9
'T+he po(ers ,ranted to the Secretar* of .,riculture and &o""erce 'natural resources+ b*
la( re,ardin, the disposition of public lands such as ,rantin, of licenses, per"its, leases and
contracts, or approvin,, re?ectin,, reinstatin,, or cancellin, applications, are all eecutive and
ad"inistrative in nature. It is a (ell!reco,ni@ed principle that purel* ad"inistrative and
discretionar* functions "a* not be interfered (ith b* the courts. '&oloso vs. )oard of
.ccountanc*, ;.R. No. :!575A, .pril #A, %$54+ In ,eneral, courts have no supervisin, po(er
over the proceedin,s and actions of the ad"inistrative depart"ents of the ,overn"ent. This is
,enerall* true (ith respect to acts involvin, the eercise of ?ud,e"ent or discretion and findin,s
of fact. '50 .". 3ur. 551!55$+ .
The established eception to the rule is (here the issuin, authorit* has ,one be*ond its statutor*
authorit*, eercised unconstitutional po(ers or clearl* acted arbitraril* and (ithout re,ard to his dut*
or (ith ,rave abuse of discretion.05 None of these obtains in the case at bar.
Moreover, in petitions for certiorari, evidentiar* "atters or "atters of fact raised in the court belo( are
not proper ,rounds nor "a* such be ruled upon in the proceedin,s. .s held in National Federation of
La&or v. NLR+902
.t the outset, it should be noted that a petition for certiorari under Rule 25 of the Rules of &ourt
(ill prosper onl* if there is a sho(in, of ,rave abuse of discretion or an act (ithout or in ecess
of ?urisdiction on the part of the National :abor Relations &o""ission. It does not include an
in8uir* as to the correctness of the evaluation of evidence (hich (as the basis of the labor
official or officer in deter"inin, his conclusion. It is not for this &ourt to re!ea"ine conflictin,
evidence, re!evaluate the credibilit* of (itnesses nor substitute the findin,s of fact of an
ad"inistrative tribunal (hich has ,ained epertise in its special field. &onsiderin, that the
findin,s of fact of the labor arbiter and the N:R& are supported b* evidence on record, the
sa"e "ust be accorded due respect and finalit*.
This &ourt has consistentl* held that the courts (ill not interfere in "atters (hich are addressed to the
sound discretion of the ,overn"ent a,enc* entrusted (ith the re,ulation of activities co"in, under the
special and technical trainin, and /no(led,e of such a,enc*.07 It has also been held that the eercise
of ad"inistrative discretion is a polic* decision and a "atter that can best be dischar,ed b* the
,overn"ent a,enc* concerned, and not b* the courts.01 In 9illanueva v. +ourt of ,ppeals,0$ it (as
held that findin,s of fact (hich are supported b* evidence and the conclusion of eperts should not be
disturbed. This (as reiterated in 1etro Transit :rgani7ation# 6nc. v. National La&or Relations
+o%%ission#5A (herein it (as ruled that factual findin,s of 8uasi!?udicial bodies (hich have ac8uired
epertise because their ?urisdiction is confined to specific "atters are ,enerall* accorded not onl*
respect but even finalit* and are bindin, even upon the Supre"e &ourt if the* are supported b*
substantial evidence.
.d"inistrative a,encies are ,iven a (ide latitude in the evaluation of evidence and in the eercise of
its ad?udicative functions. This latitude includes the authorit* to ta/e ?udicial notice of facts (ithin its
special co"petence.
In the case at bar, (e find no reason to disturb the factual findin,s of the NT& (hich for"ed the basis
for a(ardin, the provisional authorit* to )a*antel. .s found b* the NT&, )a*antel has been ,ranted
several provisional and per"anent authorities before to operate various teleco""unications services.5%
Indeed, it (as established that )a*antel (as the first co"pan* to co"pl* (ith its obli,ation to install
local echan,e lines pursuant to =.O. %A$ and R... 7$#5. In reco,nition of the sa"e, the provisional
authorit* a(arded in favor of )a*antel to operate :ocal =chan,e Services in Hue@on &it*, Malabon,
Valen@uela and the entire )icol re,ion (as "ade per"anent and a &P&N for the said service (as
,ranted in its favor. Pri"a facie evidence (as li/e(ise found sho(in, )a*antel6s le,al, financial and
technical capacit* to underta/e the proposed cellular "obile telephone service.
:i/e(ise, the Ma* 4, #AAA Order did not violate NT& Me"orandu" &ircular No. $!%0!$A dated
Septe"ber 0, %$$A, contrar* to the rulin, of the &ourt of .ppeals. The "e"orandu" circular sets forth
the procedure for the issuance of provisional authorit* thus9
=FF=&TIV= T>IS D.T=, and as part of the &o""ission6s drive to strea"line and fast trac/
action on applications-petitions for &P&N other for"s of authori@ations, the &o""ission shall
be evaluatin, applications-petitions for i""ediate issuance of provisional authori@ations,
pendin, hearin, and final authori@ation of an application on its "erit.
For this purpose, it is hereb* directed that all applicants-petitioners see/in, for provisional
authori@ations, shall sub"it i""ediatel* to the &o""ission, either to,ether (ith their
application or in a Motion all their le,al, technical, financial, econo"ic docu"entations in
support of their pra*er for provisional authori@ations for evaluation. On the basis of their
co"pleteness and their havin, co"plied (ith re8uire"ents, the &o""ission shall be issuin,
provisional authori@ations.
&learl*, a provisional authorit* "a* be issued even pendin, hearin, and final deter"ination of an
application on its "erits.
Finall*, this &ourt finds that the Manifestations of =telco" alle,in, foru" shoppin, on the part of the
NT& and )a*antel are not i"pressed (ith "erit. The divisions of the Supre"e &ourt are not to be
considered as separate and distinct courts. The Supre"e &ourt re"ains a unit not(ithstandin, that it
(or/s in divisions. .lthou,h it "a* have three divisions, it is but a sin,le court. .ctions considered in
an* of these divisions and decisions rendered therein are, in effect, b* the sa"e Tribunal. The divisions
of this &ourt are not to be considered as separate and distinct courts but as divisions of one and the
sa"e court.5#
Moreover, the rules on foru" shoppin, should not be literall* interpreted. Ce have stated thus9
It is scarcel* necessar* to add that &ircular No. #1!$% "ust be so interpreted and applied as to
achieve the purposes pro?ected b* the Supre"e &ourt (hen it pro"ul,ated that circular.
&ircular No. #1!$% (as desi,ned to serve as an instru"ent to pro"ote and facilitate the orderl*
ad"inistration of ?ustice and should not be interpreted (ith such absolute literalness as to
subvert its o(n ulti"ate and le,iti"ate ob?ection or the ,oal of all rules of procedure I (hich is
to achieve substantial ?ustice as epeditiousl* as possible.54
=ven assu"in, that separate actions have been filed b* t(o different parties involvin, essentiall* the
sa"e sub?ect "atter, no foru" shoppin, (as co""itted as the parties did not resort to "ultiple ?udicial
re"edies. The &ourt, therefore, directed the consolidation of the t(o cases because the* involve
essentiall* the sa"e issues. It (ould also prevent the absurd situation (herein t(o different divisions of
the sa"e court (ould render alto,ether different rulin,s in the cases at bar.
Ce rule, li/e(ise, that the NT& has le,al standin, to file and initiate le,al action in cases (here it is
clear that its inaction (ould result in an i"pair"ent of its abilit* to eecute and perfor" its functions.
Si"ilarl*, (e have previousl* held in +ivil *ervice +o%%ission v. $aco3co350 that the &ivil Service
&o""ission, as an a,,rieved part*, "a* appeal the decision of the &ourt of .ppeals to this &ourt.
.s correctl* stated b* the NT&, the rule invo/ed b* =telco" is Rule 25 of the Rules of &ivil
Procedure, (hich provides that public respondents shall not appear in or file an ans(er or co""ent to
the petition or an* pleadin, therein.55 The instant petition, on the other hand, (as filed under Rule 05
(here no si"ilar proscription eists.
4"ERE!ORE, in vie( of the fore,oin,, the consolidated petitions are GR)NTE8. The &ourt of
.ppeals6 Decision dated Septe"ber %4, #AAA and Resolution dated Februar* $, #AA% are RE3ERSE8
and SET )S8E. The per"anent in?unction issued b* the &ourt of .ppeals is L!TE8. The Orders of
the NT& dated Februar* %, #AAA and Ma* 4, #AAA are RENST)TE8. No pronounce"ent as to costs.