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Issue
WHETHER OR NOT THE NTC IS A COLLEGIAL BODY REQUIRING A MAJORITY VOTE
IN ORDER TO VALIDLY DECIDE A CASE?
Ruling
The NTC (organized under E. O. No. 146) is a collegial body requiring a
majority vote out of the three members of the commission in order to validly decide
a case or any incident therein. Corollarily, the vote alone of the chairman of the
commission, as in this case, the vote of Commissioner Kintanar, absent the required
concurring vote coming from the rest of the membership of the commission to at
least arrive at a majority decision, is not sufficient to legally render an NTC order,
resolution or decision.
Simply put, Commissioner Kintanar is not the National Telecommunications
Commission. He alone does not speak for and in behalf of the NTC. The NTC acts
through a three-man body, and the three members of the commission each has one
vote to cast in every deliberation concerning a case or any incident therein that is
subject to the jurisdiction of the NTC. When we consider the historical milieu in
which the NTC evolved into the quasi-judicial agency it is now under Executive
Order No. 146 which organized the NTC as a three-man commission and expose the
illegality of all memorandum circulars negating the collegial nature of the NTC
under Executive Order No. 146, we are left with only one logical conclusion: the
NTC is a collegial body and was a collegial body even during the time when it was
acting as a one-man regime.
PLDT vs NTC
Issues
1. WHETHER OR NOT THE PROVISIONAL AUTHORITY PROPERLY GRANTED
2. WHETHER OR NOT THE OPERATION OF CELLULAR MOBILE TELEPHONE
SYSTEM WAS INCLUDED IN THE FRANCISE GRANTED TO ETCI?
3. WHETHER OR NOT CAN PLDT DECLINE THE INTERCONNECTION WITH ETCI?
Ruling
The provisional authority was issued after due hearing, reception of evidence
and evaluation thereof, with the hearings attended by various oppositors, including
PLDT. It was granted only after a prima facie showing that ETCI hag the necessary
legal, financial and technical capabilities and that public interest, convenience and
necessity so demanded.
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The NTC order to interconnect allows the parties themselves to discuss and
agree upon the specific terms and conditions of the interconnection agreement
instead of the NTC itself laying down the standards of interconnection which it can
very well impose. Thus it is that PLDT cannot justifiably claim denial of due process.
It has been heard. It will continue to be heard in the main proceedings. It will
surely be heard in the negotiations concerning the interconnection agreement.
As disclosed during the hearing, the interconnection sought by ETCI is by no
means a "parasitic dependence" on PLDT. The ETCI system can operate on its own
even without interconnection, but it will be limited to its own subscribers. What
interconnection seeks to accomplish is to enable the system to reach out to the
greatest number of people possible in line with governmental policies laid down.
Cellular phones can access PLDT units and vice versa in as wide an area as
attainable. With the broader reach, public interest and convenience will be better
served.
Facts
On December 23, 1993, MERALCO filed with the Energy Regulatory Board an
application for the revision of its rate schedules. The application had an average
increase of 21 centavos per kilowatt hour (kwh) in its distribution charge.
On January 28, 1994, the ERB issued an Order granting a provisional
increase of P0.184 per kwh, subject to the condition that in the event that the
Board finds a lesser increase in rates, all excess amounts collected from the
applicants customers shall be refunded or correspondingly credited in their favor
for application to electric bills covering future consumptions. The ERB likewise
requested the Commission on Audit (COA) to conduct an audit and examination of
the books and related record for a period of time and to submit a copy to the ERB
immediately upon completion. Upon the submission of the COA audit report, the
ERB rendered its decision adopting the above recommendations and authorized
MERALCO to implement a rate adjustment in the average amount of P0.017 and the
excess amount of P0.167 per kwh shall be refunded starting with billing cycles from
February 1994 to February 1998. It also held that income tax should not form part
of the operating expense and ordered MERALCO for the use of the Net Average
Investment Method in its computation of the rate base.
Issues
1. WHETHER OR NOT THE RATES OF MERALCO ARE JUST AND REASONABLE?
2. WHETHER OR NOT INCOME TAX SHOULD FORM PART OF THE OPERATING
EXPENSES?
3. WHETHER OR NOT THE NET AVERAGE INVESTMENT METHOD SHALL BE USED IN
THE COMPUTATION OF THE RATE BASE?
Ruling
1. The regulation of rates to be charged by public utilities is founded upon the
police powers of the State and statutes prescribing rules for the control and
regulation of public utilities are a valid exercise thereof. When private property is
used for a public purpose and is affected with public interest, it ceases to be juris
privati only and becomes subject to regulation. The regulation is to promote the
common good.
In regulating rates charged by public utilities, the State protects the public
against arbitrary and excessive rates while maintaining the efficiency and quality of
services rendered. However, the power to regulate rates does not give the State the
right to prescribe rates which are so low as to deprive the public utility of a
reasonable return on investment. Thus, the rates prescribed by the State must be
one that yields a fair return on the public utility upon the value of the property
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performing the service and one that is reasonable to the public for the services
rendered. The fixing of just and reasonable rates involves a balancing of the
investor and the consumer interests.
In the fixing of rates, the only standard which the legislature is required to
prescribe for the guidance of the administrative authority is that the rate be
reasonable and just.
What is a just and reasonable rate calls for the exercise of discretion, good
sense, and a fair, enlightened and independent judgment. The findings and
conclusions of the ERB on the rate that can be charged by MERALCO to the public
should be respected. The time-honored principle that courts should not interfere
where administrative agency has not been arbitrary or capricious in the exercise of
its power.
2. Income tax should be borne by the taxpayers for the benefits/protection they
received from the state and should not be passed on to the consumers.
The
obligation of paying income taxes should be for MERALCOs account alone and
should not be passed on to consumers by forming it as part of the operating
expenses.
3. The ERB did not abuse its discretion when it applied the net average investment
method. The reasonableness of net average investment method is borne by the
records of the case. By using the net average investment method, the ERB and the
COA considered for determination of the rate base the value of properties and
equipment used by MERALCO in proportion to the period that the same were
actually used during the period in question. This treatment is consistent with the
settled rule in rate regulation that the determination of the rate base of a public
utility entitled to a return must be based on properties and equipment actually
being used or are useful to the operations of the public utility and MERALCO has not
adequately shown that the rates prescribed by the ERB are unjust and
unreasonable
SMART vs NTC
G.R. No. 151908, August 12, 2003
First Division, Ynares-Santiago, (J)
Facts
8
On June 16, 2000 NTC issued Memorandum Circular No. 13-6-2000
promulgating rules and regulations on the billing of telecommunications services
including provisions concerning the use and sale of prepaid call cards and unit of
billing for the cellular mobile telephone service (CMTS). On August 30, 2000, a
Memorandum was issued by NTC to all CMTS operators to minimize if not totally
eliminate the incidence of stealing of cellular phone units. Another Memorandum
followed on October 6, 2000 addressed to all public telecommunications entities
reminding them of the validity of all prepaid and SIM cards sold and used on 07
October 2000 shall be valid for at least two (2) years from date of first use.
On October 20, 2000 IslaCom and PILTEL filed against NTC Commissioner
Joseph A. Santiago, Deputy Commissioner Aurelio M. Umali and Deputy
Commissioner Nestor C. Dacanay, an action for declaration of nullity of NTC MC No.
13-6-2000 and the NTC Memo dated October 6, 2000, with prayer for the issuance
of a writ of preliminary injunction and temporary restraining order. Islacom and
Piltel alleged that the NTC has no jurisdiction to regulate the sale of consumer
goods and prayed the Billing Circular be declared null and void ab initio.
Globe Telecom, Inc. and Smart Communications, Inc. filed a joint Motion for
Leave to Intervene and to Admit Complaint-in-Intervention which was granted by
the trial court and issued a temporary restraining order enjoining the NTC from
implementing Memorandum Circular No. 13-6-2000 and the Memorandum dated
October 6, 2000. NTC moved for reconsideration, but was denied. NTC thereafter
filed a special civil action for certiorari and probation before the Court of Appeals
and such petition was granted and dismissed the companies complaint without
prejudice to the referral of their grievances with the NTC.
Issues
1. WHETHER OR NOT NTC HAS JURISDICION OVER THE CASE?
2. WHETHER OR NOT THE PARTIES SHOULD HAVE EXHAUSTD ADMINISTRATIVE
REMEDIES BEFORE FILING A CASE IN COURT?
Ruling
1 - The issues raised in the complaint do not entail highly technical matters but
what is required of the judge who will resolve this issue is a basic familiarity with
the workings of the cellular telephone service, including prepaid SIM and call cards
(this is judicially known to be within the knowledge of a good percentage of our
population) and expertise in fundamental principles of civil law and the Constitution.
Therefore, the RTC has jurisdiction to hear and decide the case.
2 - In questioning the validity or constitutionality of a rule or regulation issued by
an administrative agency, a party need not exhaust administrative remedies before
going to court. This principle applies only where the act of the administrative
agency concerned was performed pursuant to its quasi-judicial function, and not
9
when the assailed act pertained to its rule-making or quasi-legislative power. Even
assuming arguendo that the principle of exhaustion of administrative remedies
apply in this case, the records reveal that petitioners sufficiently complied with this
requirement.
10
of Globe where Sps. Centeno were notified but hearing was postponed. Subsequent
hearing was held but the Spouses were not notified.
October 1, 2003, the Sanguniang Bayan, passed Resolution No. 2003-119,
approving Globe's Application to construct a Tower Antenna at Calaocan, Alicia,
Isabela and the construction of the tower antenna was made.
The Spouse claimed that they were deprived of their right to due process and
prayed for the declaration of the Resolution No. 2003-119 as null and void.
Issues
1. WHETHER OR NOT THE SPS. CENTENO WAS DEPRIVED OF THEIR RIGHT TO
DUE PROCESS WITH THE CONSTRUCTION OF THE TOWER ANTENNA OF GLOBE
TELECOM?
2. WHETHER OR NOT THE HEALTH, LIVES AND PROPERTIES OF THE RESIDENTS
OF CALAOCAN, ALICIA, ISABELA WERE PUT TO REAL AND IMMINENT DANGER BY
THE CONSTRUCTION AND OPERATION OF GLOBE TOWER ANTENNA?
Ruling
The Sps. Centeno claim that they were principally denied of due process
arising from alleged want of notice to them of the proceedings before the
Sangguniang Bayan resulting to violation of their constitutional right for a safe,
healthy and convenient social environment. However, evidence on record did not
support their allegations. They were given an opportunity and right to be heard
concerning their objection to and grievances on the construction of the antenna
tower through their petition which was submitted before Sangguniang Bayan. It
bears stressing that due process does not necessarily mean or require a hearing,
but simply an opportunity or right to be heard. One may be heard, not solely by
verbal presentation but also, and perhaps many times more creditably and
practicable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied as
administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be heard as in the instant case. 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 or an opportunity to seek a
reconsideration of the action or ruling complained of. A formal or trial type hearing
is not at all times and in all instances essential. The requirements are satisfied
when they were afforded fair and reasonable opportunity to explain their side of the
controversy at hand. What is frowned upon is the absolute lack of notice or hearing
which do not appear to be obtaining in the case at bar.
11
12
period.
The Executive Judge issued a 72-hour TRO and was extended into 20-day
However, Globe filed an opposition with Motion to Dismiss.
Issues
1. Whether or not an Environmental Impact Statement (EIS) is required to be
submitted by the defendant Globe before operating its cell site;
2. Whether or not the proposed cell site will prejudice the health, safety and
security
concerns
of
the
petitioners
and
other
stakeholders;
3. Whether or not a writ on injunction should be issued to restrain the defendant
from
putting
up
and
operating
its
cell
site;
and
4. Whether or not Globe should secure an Environmental Compliance Certificate
(ECC)
before
putting
up
its
cell
site.
Ruling
The appellants contend the ruling of the trial court that the perceived health risk of
the cell site is unfounded. They deem that in light of the findings of the World
Health organization (WHO) that there are gaps in knowledge that have been
identified for further research to make better assess health risks. But the RTC
which the CA also affirmed ruled in favor of the appellee Globe by relying heavily on
the present stand of the Bureau of Health Devices and Technology that the radiation
emitted by cell site antennas is not hazardous to human health if the minimum safe
distance
is
observed.
On Environmental Concerns
The claim of the Province of Nueva Vizcaya is to be considered as
environmentally critical, it being a part of the watershed that supports the hydroelectric dam in Ramon, Isabela, is untenable as there is no showing that said area
was declared by law as a watershed reserve nor was it declared by the President as
an environmentally critical area. Hence, not being an environmentally critical area,
the issuance of an ECC is not required. Neither is the installation of the cell site in
Barangay Quirino, Solano, Nueva Vizcaya an environmentally critical project as it is
not one of those covered or listed under Proclamation No. 2146.
Memorandum Circular No. 4, Series of 2002 issued by the EMB-DENR listed
the Based Transceiver Station as one of the telecommunications projects which
are not covered by the EIS System, and as such, an ECC is not required prior to
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project
implementation
for
the
abovementioned
project.
On Preliminary Injunction
Injunction is a judicial writ, process of proceeding whereby a party is ordered
to do or refrain from doing a certain act. It may be the main action or merely a
provisional remedy for and as an incident in the main action.
The main action for injunctions is distinct from the provisional or ancillary
remedy of preliminary injunction which cannot exist except only as part or an
incident of an independent action or proceeding. As a matter of course, in an action
for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or
mandatory, may issue.
The CA sustained the trial courts dismissal of the main action for Injunction.
Appellants were not entitled to a writ of preliminary injunction, much more to a
judgment embodying a final injunction.