NOW Telecom's application for injunctive relief has been rendered moot and academic
At the outset, it is worth noting that, during the pendency of this case, Mindanao Islamic Telephone Company, Inc. (MISLATEL) was selected as the NMP by virtue of the subject Circular, and was accordingly issued a Certificate of Public Convenience and Necessity (CPCN).35
It is an established rule that injunction will not issue to restrain the performance of an act already done, or to prevent events that have already happened.36 When the act sought to be prevented by injunction has already been performed or completed, "nothing more can be enjoined or restrained; a writ of injunction then becomes moot and academic, and the court, by mere issuance of the writ, can no longer stop or undo the act. To do so would violate the sole purpose of a prohibitive injunction, that is, to preserve the status quo.37
In this case, the act sought to be restrained by NOW Telecom has already been done. The actual implementation of the selection process of the NMP pursuant to the subject Circular, and the resulting assignment of the allocated radio frequencies for the NMP to MISLATEL have rendered NOW Telecom's prayer for injunctive relief moot and academic. Accordingly, NOW Telecom's application for WPI should be denied.
NOW Telecom failed to prove the presence of the requisites for the issuance of an injunctive relief
Rule 58, Section 3 of the Rules of Court provides that preliminary injunction may be granted when it is established that:
(1) The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of or in requiring the performance of an act or acts either for a limited period or perpetually;
(2) The commission, continuance, or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
(3) A party, court, agency, or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
Jurisprudence provides the following essential requisites for the grant of a writ of preliminary injunction:
(1) the applicant must have a clear and unmistakable right to be protected, that is a right in esse; (2) there is a material and substantial invasion of such right; (3) there is an urgent need for the writ to prevent irreparable injury to the applicant; and (4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.44
None of these requisites is present in this case.
First, NOW Telecom failed to establish that it has a clear and unmistakable right to be protected in this case. Before a WPI may be issued, the applicant must establish the existence of the right to be protected. This right must be actual, clear, and existing, not mere contingent, abstract, or future.45 NOW Telecom failed to show the existence of such right.
As correctly held by the CA, the grant of a legislative franchise to operate telecommunications services in NOW Telecom's favor does not necessarily carry with it a right over particular radio frequencies. Neither does NOW Telecom's franchise state that it is entitled to specific radio frequencies.
NOW Telecom's use of radio frequencies is only a privilege, not a right, and is subject to compliance with the relevant laws, rules, and regulations.
Section 7 of Republic Act No. 1097246 expressly provides that
"[t]he radio spectrum is a finite resource that is part of the national patrimony and the use thereof is a privilege conferred upon the grantee by the State and may be withdrawn at any time after due process."47
In Liberty Broadcasting Network, Inc. v. Atlocom Wireless System, Inc.48 (Liberty Broadcasting Network), the Court held that "[e]ven entities with unexpired PA cannot claim a vested right on a specific frequency assignment. This proceeds from the nature of its franchise which is not solely for commercial purposes but one imbued with public interest.
Moreover, Section 1 of Republic Act No. 794050 provides that NOW Telecom 's franchise is "[s]ubject to the provisions of the Constitution and applicable laws, rules and regulations of the [NTC]." Section l of Republic Act No. l0972 similarly provides that it is "[s]ubject to the provisions of the Philippine Constitution and applicable laws, rules and regulations."
Republic Act No. 7925, otherwise known as the "Public Telecommunications Policy Act of the Philippines," has given the NTC the authority and responsibility to allocate and assign the radio frequencies and facilitate the entry of qualified service providers through administrative process.51
NOW Telecom's own franchise recognizes that the NTC shall authorize NOW Telecom 's use of frequency in the radio spectrum, and the NTC has the power and authority to regulate and impose conditions relative to the construction and operation of NOW Telecom's telecommunications system.
Consistent with the foregoing, the NTC promulgated various rules and regulations for the allocation and assignment of radio frequencies, such as the Subject Circular. NOW Telecom must comply with these rules and regulations. It cannot simply claim any right over the subject allocated frequency bands by virtue of its legislative franchise.
Clearly, NOW Telecom has no vested right over the allocated radio frequencies for the NMP, or any clear, actual, and existing right to be protected against the implementation of the subject Circular.
Consequently, there could not be any material or substantial invasion of a right that does not exist.
Considering all the foregoing, the CA did not commit any reversible error in the assailed Decision and Resolution. The CA properly upheld the RTC's denial of NOW Telecom's application for WPI.
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