Broadcast firm asks RTC to nullify NTC rule on radio band reallocation

By Mary Ann Ll. Reyes
The Philippine Star

A local broadcasting company has asked the Quezon City Regional Trial Court to declare null and void a memorandum circular issued by the National Telecommunications Commission (NTC) reallocating certain radio bands for the use of the broadband wireless sector.

Altimax Broadcasting Co. in a complaint filed with the RTC, said NTC Memorandum Circular 06-08-2005, issued Aug. 6, 2005 which reallocated certain radio bands, including the frequency range of from 2596 up to 2644 megahertz, for "broadband wireless access for fixed, nomadic, and mobile networks," is unconstitutional as it deprives broadcasting companies, including Altimax of the right to use their frequencies, without due process.

"The frequency allocation of Altimax cannot be withdrawn or reallocated to another entity without giving Altimax the opportunity to be heard,’ the company said.

Altimax was issued by the NTC a provisional authority to install, operate, and maintain a multipoint multichannel distribution system (MMDS) and interactive services throughout the Philippines using analog and digital technology. The company was assigned the frequency range of from 2596 up to 2644 Mhz.

The company pointed out that recalling the radio frequency assigned to it is tantamount to depriving it of property without due process.

Altimax said it has invested more than P40 million in equipment and technical studies, which investments are now in danger of going to waste should the circular be implemented. "This will be true not only for Altimax but will be replicated for the other affected companies in the broadcasting industry. Unless enjoined, the implementation of this circular will wreak havoc on, will disrupt and will be an injustice to the entire broadcasting industry," Altimax said.

The company also accused the NTC of acting beyond its authority in issuing the assailed circular, as it pointed out that Republic Act 7925 or the Public Telecommunications Act which MC 06-08-2005 purports to implement, does not apply to broadcasting companies.

It said RA 7925 applies only to public telecommunications entities and did not delegate any quasi-legislative power to the NTC which would authorize the latter to reallocate the frequencies previously assigned to broadcasting companies like Altimax. "Furthermore, where a power has been delegated to make legislative rules within a plainly limited sphere, any rule adopted which exceeds this sphere is invalid," Altimax stressed.

But even if RA 7925 applies to broadcasting companies, the company noted that said law still does not authorize the commission to reallocate radio frequencies.

Altimax said the law is clear that the duty of the NTC to periodically "review the radio frequency spectrum and assignment" is connected to its obligation to hold open tenders for the same and ensure wider access to this limited resource" when the "demand for specific frequencies exceeds availability."

"The assailed circular does not even mention anything about demand exceeding availability for a particular frequency, nor of holding an open tender for particular radio frequencies," it added.

In its complaint, Altimax emphasized that the law cannot be broadened by a mere administrative issuance, such that if the implementing rules and regulations are in excess of the rule-making authority of the NTC, they are without binding effect upon the courts.