Eligibility of 3rd telco questioned anew

The eligibility of Mindanao Islamic Telephone Co. (Mislatel) as the country’s third telecommunications player has been questioned anew.

Amid debate in Congress on the validity of its franchise, a taxpayer who earlier questioned the government’s selection process for the third telco slot has accused Mislatel of failure to meet post-bidding requirements under the terms of reference set by the National Telecommunications Commission (NTC).

Marlon Anthony Tonson specifically cited the failure of the consortium of Udenna Corp. of businessman Dennis Uy and China to submit a formal declaration of the House of Representatives’ concurrence to the recent Senate resolution approving its franchise within the prescribed period that lapsed last Feb. 17.

“Considering that the 90day (period) for the NMP (new major player) to submit the documents has lapsed, and they failed to submit this formal declaration that you required, then what is the implication? Clearly, the NMP failed to comply with the requirements of the TOR (Terms of Reference),” Tonson stressed in a letter to the Department of Information and Communications Technology (DICT) last Feb. 25.

He explained that under the TOR set by NTC, the NMP would have only 90 days from the issuance of Confirmation Order to submit all necessary papers for the issuance of Certificate of Public Convenience and Necessity (CPCN) to be able to start operations.

Through legal counsel Arnel Victor Valeña, Tonson asked DICT and NTC to formally report such failure of Mislatel.

He warned that “failure to do so would open the NTC, DICT and the whole NMP process to criticism of giving a private party unwarranted benefits, advantage or preference in the discharge of their official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”

Tonson asked DICT Secretary Eliseo Rio Jr. to clarify the status of the awarding of the third telecommunications slot to Mislatel as he accused the agency of disregarding the rules and extending “partiality and unwarranted benefits” to Mislatel.

He alleged that DICT has previously covered up the violations of the TOR by Mislatel, particularly when the consortium “misrepresented its qualifications by claiming possession of a valid and subsisting legislative franchise,” which was found to be “ipso facto revoked or at least defective” due to “patent violations.”

“Even as such violations were openly admitted during the Senate hearings, you never sanctioned the NMP. Instead of acknowledging failure to scrutinize the NMP’s franchise, you shifted the burden to the courts and the legislative to declare a revocation,” Tonson told DICT.

“Through your disregard of the TOR provisions, you have extended partiality and unwarranted benefits to the consortium. In doing so, you deprive the public of the most qualified third telecommunications player, and you fall short of the professional and ethical standards expected of a public servant,” he further alleged.

Tonson had filed a petition before the SC in December 2018 to question the legality of the NTC decision to close the bidding process and to officially award the third telco franchise to Mislatel.

He claimed there were violations to the 1987 Constitution in the bidding procedure implemented by the NTC, particularly the selection rules under Memorandum Circular 09-09-18.

Tonson, who invoked his legal interest on the issue as a telco consumer in filing the petition, also argued that the bidding rules were unconstitutional due to the lack of proper screening tests necessary to ensure compliance to the 60-40 rule on foreign ownership in public utilities under Article XII, Section 11 of the Constitution.

He stressed that while the law allows 40 percent ownership of foreign firms in public utilities, the law does not specifically allow a foreign corporation owned by another government just like China Telecom.

Lastly, petitioner cited the issue of national sovereignty and security and argued that MC 09-09-18 is unconstitutional due to the “lack of necessary safeguard against intrusions to individual and national security.”

A similar petition was filed in November by disqualified bidder Philippine Telegraph & Telephone Corp. before the SC.