By John Tanner

NOW Telecom suffered another legal setback in its quest to become the next major telco in the Philippines after the Supreme Court upheld earlier rulings denying its petition for a preliminary injunction against the National Telecommunications Commission (NTC).

NOW Telecom has been clashing with the NTC over its Memorandum Circular No. 09-09-2018 that outlined the bidding process for establishing a third telco to compete against the duopoly of PLDT/Smart and Globe Telecom.

In 2018, NOW Telecom filed a complaint with the Manila Regional Trial Court, accusing the NTC of setting excessive and unreasonable fees for the process that constituted barriers to entry. It also challenged the constitutionality and validity of the memorandum, and sought a temporary restraining order (TRO) and/or writ of preliminary injunction (WPI) against its implementation.

However, both the Regional Trial Court and the Court of Appeals have denied the petition for a TRO or WPI, saying that the NTC memorandum was legally sound.

Over the weekend, according to media reports, the Supreme Court upheld those rulings, saying that lower courts are prohibited by Republic Act No. 8975 from issuing WPIs against the government when it comes to bidding or awarding infrastructure contracts.

The Supreme Court also ruled that NOW Telecom had failed to “establish that it has a clear and unmistakable right to be protected in this case.”

The court also ruled that the NTC’s guidelines were “proper”, and that the case was moot anyway since the NTC has already named DITO Telecommunity as the country’s third major telco player.

“In this case, the act sought to be restrained by NOW Telecom has already been done,” the ruling said.

NOW Telecom issued a statement clarifying that the Supreme Court ruling applies only to its petition for a preliminary injunction against the memo, and doesn’t include its challenge to the memo’s constitutionality, which is still pending in the appellate court.

The Supreme Court ruling also doesn’t cover a separate case regarding NOW Telecom’s claims to for frequencies in the 1970-1980 MHz bands, paired with 2160-2170 MHz and 3.6 GHz-3.8 GHz bands.

That case relates to a March 2021 resolution from the Anti-Red Tape Authority (ARTA) that theoretically granted NOW Telecom automatic approval to use those bands over the objections of the NTC. However, ARTA reversed that position in June 2022 around the same time that NOW Telecom applied to use them.

NOW Telecom sued NTC to comply with the original resolution, but lost that case in the Court of Appeals in October last year after the court ruled that the telco had failed by prove its rights to the frequencies. NOW Telecom has since taken its appeal to the Office of the President, where the case is still pending.

The rulings sofar don’t impact NOW Telecom’s fixed-line services, including fibre broadband, or its plans to offer satellite broadband services. They also don’t prevent NOW Telecom from offering mobile services – NOW has licences to operate mobile services using the 800-MHz band and the 3.5-GHz band, both of which were successfully renewed in October 2023 and January 2024, respectively.

Meanwhile, NOW has been pushing ahead with its 5G ambitions. In January 2023, NOW Telecom signed a letter of intent with the US Trade and Development Agency (USTDA) to develop a 5G network in the Philippines. Both parties agreed to conduct a 5G trial in metro Manila, with the USTDA providing funding and technical assistance for the project. Nokia Bell Labs Consulting is designing and implementing the pilot 5G network.

At this year’s Mobile World Congress event, NOW Telecom signed an MoU with Rakuten Symphony to establish a collaborative framework for deploying a 5G Open RAN pilot in the Philippines.