Smart gripes as NTC allows joint spectrum use of Globe, Bayan

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The regulatory body said on Monday, Oct. 1, that it made the decision as a way of addressing the rising incidence of mobile communications complaints on blocked calls or grade of service, drop calls, and signal quality. The NTC resolution consisted of the following provisions:

? Allowing the joint use by Globe and Bayan of the frequencies assigned to Bayan in the 1800MHz band for the provision of CMTS (cellular mobile telephone service);

? Allowing the joint use by Smart Communications and Smart Broadband Inc. (SBI) of the frequencies assigned to Smart in the 800Mhz; 900MHz; 1800MHz and 2100MHz band;

? Allowing the joint use by Smart and SBI of the frequencies assigned to SBI in the 800MHz band;

? Allowing the joint use by Smart and Sun Cellular of the frequencies assigned to Smart in the 800Mhz; 900Mhz; 1800Mhz; 2100Mhz band; and

? Allowing the joint use by Smart and Sun of the frequencies assigned to Sun in 1800Mhz; 2100Mhz band.

The NTC, however, said it has set the following conditions for the joint use of the frequencies:

? The additional payment of Spectrum User Fees (SUF) by Globe, Smart, SBI, and Sun for joint use of the subject frequencies;

? For Bayan, which is under rehabilitation, to seek confirmation from the Rehabilitation Court of the joint use of frequencies with Globe;

? For the telcos to comply with the Quality of Service (QOS) required by the NTC; and

? In case any of assignees of the subject frequencies ceases to operate, the assigned frequencies shall be deemed automatically recalled by the NTC.

But, Smart said the NTC decision will allow Globe ?illegally? use the mobile phone frequencies of Bayantel. Instead, Smart said it is calling on the NTC to initiate proceedings to recall the frequencies assigned to Bayantel, as required by NTC rules, because of the telecom firm?s failure to use the frequencies to provide mobile phone service to the public. ?The NTC should then offer these frequencies to all interested and qualified applicants in an open and competitive bidding process,? said Enrico L. Espanol, head of Smart?s legal and regulatory department in a letter opposing the application submitted Sept. 28. ?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 Honorable Commission upon service of notice and hearing,? he added. Espanol stressed 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.? Espanol added that the ?joint use? arrangement between Globe and Bayantel would lead to ?enormous loss of government revenues as the latter would be deprived of income resulting from a competitive auction among interested bidders.? He recalled that a similar arrangement between Globe and Altimax Broadcasting Co. for the lease of broadcast frequencies to provide wireless broadband service on the WiMax technology had also resulted in large revenue losses for the government. ?What was lease for Altimax then is co-use with Bayantel now; but it is the same enormous revenue loss for the government,? the Smart official said. Smart filed a complaint against the lease arrangement between Innove Communications, an affiliate of Globe, and Altimax last year, arguing that the deal violated the law and NTC regulations. It also pressed the NTC to recall the frequencies assigned to Altimax which had failed to set up a broadcasting service as provided for in its franchise. Smart’s complaint versus the Altimax deal is still pending with the NTC. Recalling the Bayantel frequencies and auctioning them ?would be more in line with the government?s avowed policy to promote the efficient, effective and prudent use of radio frequency spectrum and will certainly redound to the benefit of the consuming public, rather than allowing Globe to use these frequencies without the benefit of an open and competitive process,? Espanol said. Ayala-owned operator Globe, meanwhile, welcomed NTC?s move for the joint use agreement. 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.? Reacting to the statement issued by Smart Communications on the NTC decision, Castelo stated, ?If Smart has taken that position, then it should have opposed the move of Bayantel for an extension of their license to provide CMTS services last year. 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.? ?Separately, we cannot comment on Smart?s complaint on Altimax because the same is still under deliberation with the NTC and therefore subject to sub judice rules,? added Castelo. In its application to the NTC for approval, Globe cited that the joint use agreement will allow it to address increasing demand for voice, SMS, and mobile data services, and for Bayantel to be able to offer mobile telecommunications services nationwide. Lopez-owned Bayan, on the other hand, said it entered into an agreement with Globe to ?allow both firms to offer the Filipino consumers superior telecommunications products, such as high speed wireless Internet at reasonable cost.? It added: ?The joint use agreement is aimed at providing customers with world-class telecommunications services in terms of value, content, application and speed, with the end in view of using the radio spectrum more efficiently and avoiding unnecessary and wasteful duplication of network resources. “This is in line with the government?s avowed policy to promote the efficient, effective and prudent use of the radio frequency spectrum. Moreover, it will surely redound to the benefit of the Filipino consumers,? the company said. ]]>

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