Republic v. Extelcom G.R. 147096, January 15, 2002

Fact: Bayantel filed an application with the NTC for a Certificate of Public Convenience or Necessity (CPCN) to install, operate and maintain a digital Cellular Mobile Telephone System/Service (CMTS) with prayer for a Provisional Authority (PA). Shortly thereafter the NTC issued directing all interested applicants for nationwide or regional CMTS to file their respective applications before the Commission 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. 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 grant of two (2) separate Provisional which resulted in the closing out of all available frequencies for the service being applied for by herein applicant, and in order that this case may not remain pending for an indefinite period of time, ordered ARCHIVED without prejudice to its reinstatement if and when the requisite frequency becomes available. NTC issued Memorandum re-allocating five (5) megahertz (MHz) of the radio frequency spectrum for the expansion of CMTS networks. Bayantel filed an Ex-Parte Motion to Revive Case, citing the availability of new frequency bands for CMTS operators, the NTC granted BayanTel’s motion to revive the latter’s application and set the case for hearings. Extelcom filed an Opposition praying for the dismissal of Bayantel’s application which was denied for lack of merit. Extelcom filed with the Court of Appeals a petition for certiorari and prohibition,which was granted. Petitioner filed MR but subsequently denied by the CA. Hence, the NTC filed the instant petition.

Issue: Whether the 1993 Revised Rules of the NTC is operative and should be applied to the Respondent even with the absence of Publication Requirement?

Held: No, 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, 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 fall squarely within the scope of these laws, as explicitly mentioned in the case Tañada v. Tuvera. which 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.


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