Republic vs Extelcom, G.R. No. 147096

REPUBLIC OF THE PHILIPPINES, represented by NATIONAL TELECOMMUNICATIONS COMMISSION, petitioner, vs. EXPRESS TELECOMMUNICATION CO., INC. and BAYAN TELECOMMUNICATIONS CO., INC., respondents.

YNARES-SANTIAGO, J.

Nature: Motion for Reconsideration and Clarification

Keywords: Publication requirement; UP Law Center; Official Gazette

Summary: NTC granted Bayantel the provisional authority to operate a Cellular Mobile Telephone System/Service (CMTS) on its own initiative applying Rule 15, Section 3 of its 1987 Rules of Practice and Procedures. Respondent Extelcom contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register where the phrase “on its own initiative” were deleted and since the 1993 Revised Rules were filed with the UP Law Center.

Facts: On 29 December 1992, the International Communications Corporation (now Bayan Telecommunications, Inc. or Bayantel) filed an application with the National Telecommunications Commission (NTC) for a Certificate of Public Convenience or Necessity (CPCN, NTC Case 92-486) to install, operate and maintain a digital Cellular Mobile Telephone System/Service (CMTS) with prayer for a Provisional Authority (PA).

Shortly thereafter, or on 22 January 1993, the NTC issued Memorandum Circular 4-1-93 directing all interested applicants for nationwide or regional CMTS to file their respective applications before the Commission on or before 15 February 1993, and deferring the acceptance of any application filed after said date until further orders.

On 6 May 1993, and prior to the issuance of any notice of hearing by the NTC with respect to Bayantel’s original application, Bayantel filed an urgent ex-parte motion to admit an amended application.

On 17 May 1993, the notice of hearing issued by the NTC with respect to this amended application was published in the Manila Chronicle. Copies of the application as well as the notice of hearing were mailed to all affected parties. Subsequently, hearings were conducted on the amended application. But before Bayantel could complete the presentation of its evidence, the NTC issued an Order dated 19 December 1993 stating that in view of the recent grant of 2 separate Provisional Authorities in favor of ISLACOM and GMCR, Inc., which resulted in the closing out of all available frequencies for the service being applied for by Bayantel, and in order that the case may not remain pending for an indefinite period of time, the case was ordered archived without prejudice to its reinstatement if and when the requisite frequency becomes available.

On 17 May 1999, Bayantel filed an Ex-Parte Motion to Revive Case, citing the availability of new frequency bands for CMTS operators. On 1 February 2000, the NTC granted BayanTel’s motion to revive the latter’s application and set the case for hearings on February 9, 10, 15, 17 and 22, 2000. The NTC noted that the application was ordered archived without prejudice to its reinstatement if and when the requisite frequency shall become available. Express Telecommunication Co., Inc. (Extelcom) filed in NTC Case 92-486 an Opposition (With Motion to Dismiss) praying for the dismissal of Bayantel’s application; arguing that Bayantel’s motion sought the revival of an archived application filed almost 8 years ago, and thus, the documentary evidence and the allegations of Bayantel in said application are all outdated and should no longer be used as basis of the necessity for the proposed CMTS service.

On 3 May 2000, the NTC issued an Order granting in favor of Bayantel a provisional authority to operate CMTS service, applying Rule 15, Section 3 of its 1978 Rules of Practice and Procedure. Extelcom filed with the Court of Appeals a petition for certiorari and prohibition (CA-GR SP 58893), seeking the annulment of the Order reviving the application of Bayantel, the Order granting Bayantel a provisional authority to construct, install, operate and maintain a nationwide CMTS, and Memorandum Circular 9-3-2000 allocating frequency bands to new public telecommunication entities which are authorized to install, operate and maintain CMTS.

On 13 September 2000, the Court of Appeals granted the writs of certiorari and prohibition prayed for, annulling and setting aside the NTC orders dated 1 February and 3 May 2000 in NTC Case 92-486, dismissing Bayantel’s Amended Application without prejudice to the filing of a new CMTS application. Bayantel and the NTC, the latter being represented by the Office of the Solicitor General (OSG), filed a motion for reconsideration of the above decision. On the other hand, Extelcom filed a Motion for Partial Reconsideration, praying that NTC Memorandum Circular 9-3-2000 be also declared null and void.

On 9 February 2001, the Court of Appeals issued a resolution denying all of the motions for reconsideration of the parties for lack of merit. Hence, the NTC and Bayantel filed their petitions for review on certiorari (GR 147096, and GR 147210 respectively).

In the present petition, Extelcom contends, among others, that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on 3 February 1993. These Revised Rules deleted the phrase “on its own initiative;” accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission. The NTC, on the other hand, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules.

Issue: Whether the 1993 Revised Rules which was filed in the UP Law Center is the law in force and effect in granting provisional authority.

Held: No. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. The National Administrative Register is merely a bulletin of codified rules. Publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules and regulations can take effect.

Ratio: The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1978 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. --- (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain or disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs.

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order.

This Court, in Tanada vs. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446) stated, thus:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

x x x

SC agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.

The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133.

Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case Tanada v. Tuvera.

Our pronouncement in Tanada vs. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties.

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation. In the absence of such publication, therefore, it is the 1978 Rules that governs.

Note: Publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect; The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada vs. Tivera, 146 SCRA 446 (1986). – Publication in the Official Gazette or in a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that: Law shall take effect fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. The Rules of Practice and Procedure of the NTC, which implements

Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case Tanada v. Tuvera.