Comment-skycable.docx

Republic of the Philippines NATIONAL TELECOMMUNICATIONS COMMISSION Quezon City PLANET CABLE, INC. Applicant, - versus -

NTC Case No. 2016-098

SKY CABLE CORPORATION Oppositor. x-----------------------------------------x

COMMENT/OPPOSITION Applicant PLANET CABLE, INC. (“Planet Cable”), by counsel, unto this Honorable Commission, respectfully states: 1. On 07 November 2018, herein applicant received a copy of oppositor’s MOTION FOR RECONSIDERATION (of the Order dated 20 September 2018) dated 26 October 2018. Said motion seeks a reconsideration/setting aside of the Honorable Commission’s ORDER dated 20 September 2018, admitting applicant’s documentary exhibits. Without awaiting the Honorable Commission’s order directing herein applicant to file its comment/opposition thereto, the applicant is now filing this comment/opposition to oppositor’s motion for reconsideration. 2. At the onset, the said Motion for Reconsideration should be denied/stricken off for being pro forma and worthless piece of paper, pursuant to the NTC Rules of Practice and Procedure (“NTC Rules”). 3. As earlier mentioned, applicant received a copy of the motion only on 07 November 2018, or a lapse of two (2) days after the date set by the oppositor for hearing of the said motion. This is violative of Section 3, Rule 13, in relation to Section 1, Rule 5, of the NTC Rules, which mandates that the motion shall be set for hearing not less than three (3) days from service thereof. 4. Parenthetically, the foregoing provisions in the NTC Rules are reinforcements of the well-established procedure in the filing and service of motions enunciated in the Rules of Court, the suppletory application of which is recognized under Section 4, Rule 1, of the NTC Rules, thus: “Section 4. Hearing of motion – Except for motions which the court may act upon without prejudicing the

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rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.” (Emphasis supplied)

5. Oppositor’s propensity to violate the foregoing rules, in an apparent attempt to further delay the instant application, cannot be overemphasized. To recall, oppositor has previously filed three (3) motions for extension within which to file its written opposition, all of which were not even set for hearing other than a mere indication that said motions are submitted for consideration “as soon thereafter as counsel may be heard.” Further, oppositor again filed three (3) motions for extension of time to file its comment/opposition to herein applicant’s formal offer of exhibits, all of which were likewise not set for hearing but merely submitted for consideration “immediately” upon receipt thereof. 6. "A motion that does not comply with the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is a worthless piece of paper which the clerk of court has no right to receive and which the court has no authority to act upon." (Pallada vs. RTC of Kalibo, Aklan, Br. 1, 364 Phil. 81, 89). As an integral component of the procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution of the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard. (Jehan Shipping Corporation vs. National Food Authority, G.R. No. 159750, 14 December 2005).

7. In addition to the foregoing blunder of oppositor’s motion, the same should likewise be denied for utter lack of substance. 8. Oppositor posits that the purposes for which Exhibits “I series”, “J series”, “L”, and “M” were not “clearly” specified. While oppositor’s basis for such claim remains an enigma, applicant is confident that it has served a correct copy of its Formal Offer to oppositor via private courier. In this Formal Offer, the page following the enumeration of the aforementioned exhibits contains the purpose/s for which said exhibits were offered, which includes, among others, “(t)o prove that the 2

Applicant has the legal capacity and personality as a corporation to install, operate and maintain a cable television system in Nasugbu, Batangas.” 9. Anent oppositor’s contention that the applicant failed to properly prove publication of the Notice of Hearing, oppositor invokes Section 19, Rule 14, of the Rules of Court, which is obviously misplaced as the same pertains to service of summons. 10. At any rate, it should be stressed that the publication of the Notice of Hearing was already ruled upon by the Honorable Commission during the jurisdicational hearing of the instant application. During the said hearing, herein oppositor did not register any comment/objection to any of the jurisdictional requirements (which already includes the Affidavit of Publication executed by Evelyn S. Arevalo as Exhibit “B”) forwarded by the applicant when the same was furnished to oppositors for their perusal. In fact, the Honorable Commission admitted the jurisdictional requirements presented by the applicant as compliant, and declared a general order of default against interested parties who failed to appear during the said jurisdictional hearing. 11. Oppositor cannot now further delay the instant application, under the guise of a belated objection to a jurisdictional requirement when it had an earlier opportunity to object to, more so when the Honorable Commission already ruled on the said requirements and acquired jurisdiction. On this score, while not on all fours with the instant application, the Honorable Supreme Court, in Republic of the Philippines vs. Bolante (G.R. No. 160597), took note of the nonobjection to the jurisdictional requirements and its acquiscence to the jurisdiction of the court, to wit: “Not lost on the Court is the fact that during the September 25, 2001 initial hearing which, to reiterate is already outside the 4-month limitation prescribed by the Rules, the provincial prosecutor of Abra interposed no objection as to the genuineness, authenticity, relevancy or sufficiency of the exhibits presented to prove the jurisdictional requirements exacted by the Rules. In a very real sense, therefore, the petitioner Republic fully and knowingly acquiesced in the jurisdiction of the trial court. The peculiar circumstances obtaining in this case and the requirements of fair dealing demand that we accord validity to the proceedings a quo.”

12. With respect to oppositor’s arguments against the competency/qualifications of applicant’s legal/financial and technical witnesses, as well as the financial and technical feasibility of the 3

studies presented, oppositors claims are misplaced. In the first place, the legal documents presented by applicant’s legal/financial witness are public documents as filed before the Securities and Exchange Commission (“SEC”), thus the allegations of hearsay do not hold water. 13. Moreover, the qualifications of applicant’s legal/financial and technical witnesses as well as the feasibility of the project, as established by the financial and technical feasibility studies presented, are not within the province of admissibility of evidence. 14. It is elementary that evidence, to be admissible, must comply with two qualifications: (a) relevance and (b) competence. Evidence is relevant if it has a relation to the fact in issue as to induce a belief in its existence or nonexistence. On the other hand, evidence is competent if it is not excluded by the law or by the Rules of Court1. In the instant motion, oppositor did not present any contrary evidence or counter-argument establishing irrelevancy of the technical and financial feasibility studies. As to competence, oppositor simply rasied the issue of “qualifications” of the witnesses, as well as the matter of “hearsay evidence”, which, as earlier pointed out, is misplaced considering that the documents are of public record. 15. In sum, oppositor’s MOTION FOR RECONSIDERATION (of the Order dated 20 September 2018) dated 26 October 2018 should be denied for being procedurally infirm and for utter lack of merit.

RELIEF WHEREFORE, premises considered, it is respectfully prayed of the Honorable Commission that oppositor’s MOTION FOR RECONSIDERATION (of the Order dated 20 September 2018) dated 26 October 2018 be DENIED for being procedurally infirm and for utter lack of merit, and that the Honorable Commission’s ORDER dated 20 September 2018, admitting applicant’s documentary exhibits be AFFIRMED. Other just and equitable reliefs are likewise prayed for. Mandaluyong City for Quezon City, 20 November 2018.

ASPIRAS APUYOD AND ASSOCIATES LAW OFFICE Counsel for Applicant Planet Cable, Inc. Units 14-17 Starmall Business Offices EDSA cor. Shaw Blvd., Mandaluyong City 1 Rule 128, Rules of Court

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Telephone No. (02) 718-40-27 to 28 Email: [email protected] By:

CARLOS JOSEPH B. VILLANUEVA PTR No. 3863870/Jan. 04, 2018/Pasig City IBP Lifetime No. 015576/ RSM Roll No. 62345 MCLE Compliance No. V-0013992/Feb. 12, 2016

Copy furnished SANTOS PARUNGAO AQUINO & SANTOS LAW OFFICES Counsel for Oppositor Suites 706 & 806, West Tower Philippine Stock Exchange Centre Exchange Road, Ortigas Center Pasig City EXPLANATION: The foregoing COMMENT/OPPOSITION is being served by registered mail due to distance and lack of manpower to effect personal service. CARLOS JOSEPH B. VILLANUEVA

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