Smart Telecommunications has sent out a press release today strongly opposing the “joint use” agreement entered into by Globe Telecom and Bayan Telecommunications. If you don’t know about the issue, here’s the quick recap – Bayan Telecommunications has had the rights to use the 1800 MHz Band which were assigned to them by the NTC for the provision of mobile phone services. But since Bayan Telecommunications doesn’t have an active mobile service, Smart says that under NTC Memorandum Circular No. 3-3-96 that states “an assigned frequency which remains unused for one year from date of issuance of permits and license may thus be recalled or withdrawn consistent with national and public service” that particular band needs to be reassigned or auctioned off to all interested and qualified applicants in an open and competitive bidding process.
Enrico L. Espanol, head of Smart’s Legal and Regulatory Department said in a letter that “it is undeniable that Bayantel has not been using these frequencies for at least one year considering that it has not been providing any CMTS service to thegeneral public. Consequently, these unused frequencies assigned to Bayantel should be recalled by the HonorableCommission upon service of notice and hearing.” He also said that under the law and jurisprudence the assignment of a frequency to a telecommunications operator by the government does not confer on the operator a vested property right over the frequency. He quoted a Supreme Court ruling that states telcos “are merely given the temporary privilege of using them.” He also said that the joint use deal of Bayan Tel and Globe Telecommunications would be an “enormous loss of government revenues as the latter would be deprived of income resulting from a competitive auction among interested bidders.”
[UPDATE] Globe has just sent us their official stance on the position, which unsurprisingly, states that they are happy with the decision of the NTC. Atty. Froilan M. Castelo, Head of Globe Corporate and Legal Services Group said, “We are pleased with the decision of the NTC and rely on the validity and legality of the NTC order with regard to the joint use agreement with Bayantel.” He also said that Smart should have opposed the move of Bayantel of an extension of their license to provide CMTS services last year if they they had an issue with it, adding “the NTC decision granting the motion of Bayantel was also issued last year and has become final, executory and unappealable. Bayantel is currently under rehabilitation and the rehabilitation court has ordered the preservation of all assets and privileges of Bayantel including its spectrum. This is the reason why the NTC cannot validly recall their spectrum assets.”