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EN BANC

[G.R. No. L-63318. November 25, 1983.] PHILIPPINE CONSUMERS FOUNDATION, INC., petitioner, vs. NATIONAL TELECOMMUNICATIONS COMMISSION AND PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, respondents. Tomas C. Llamas for petitioner. The Solicitor General for respondent NTC. Graciano C. Regala and Eliseo B. Alampay for respondent PLDT. SYLLABUS 1. ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; NATIONAL TELECOMMUNICATIONS COMMISSION; DUTY TO PROMULGATE RULES AND REGULATIONS; CASE AT BAR. There is merit in the contention of petitioner that it is the duty of respondent NTC to promulgate rules and regulations because: (1) P.D. 217 deals with matters so alien, innovative and untested such that existing substantive and procedural laws would not be applicable. Thus, the Subscriber Investment Plan (SIP) was so set up precisely to ensure the financial viability of public telecommunications companies which in turn assures the enjoyment of the population at minimum cost the benefit of a telephone facility; (2) In the absence of such rules and regulations, there is outright confusion among the rights of PLDT, the consumers and the government itself; and (3) Finally, it should be emphasized that NTC is estopped from claiming that there is no need to promulgate such rules and regulations. In the case of PCFI vs. NTC, G.R. No. 61892, now pending resolution before this Honorable Tribunal, NTC totally refused to act on a petition filed by PLDT precisely for the promulgation of such rules and regulations. 2. MERCANTILE LAW; PUBLIC UTILITY; TELEPHONE INDUSTRY; BASIC POLICIES UNDER P.D. NO. 217. The State, in Presidential Decree No. 217 promulgated on June 16, 1973, adopted the basic policies of the telephone industry which, among others, are: (1) the attainment of efficient telephone service for as wide an area as possible at the lowest reasonable costs to the subscriber; (2) the capital requirements of telephone utilities obtained
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from ownership funds shall be raised from a broadbase of investors, involving as large a number of individual investors as may be possible; and (3) in any subscriber self- financing plan, the amount of subscriber self-financing will, in no case, exceed fifty per centum(59%) of the cost of the installed telephone line, as may be determined from time to time by the regulatory bodies of the State. 3. REMEDIAL LAW; CERTIORARI; REMEDY AVAILABLE DESPITE EXISTENCE OF APPEAL IF DICTATED BY PUBLIC WELFARE AND ADVANCEMENT OF PUBLIC POLICY. Anent the question that petitioner should have appealed the decision of respondent NTC, instead of filing the instant petition, suffice it to say that certiorari is available despite existence of the remedy of appeal where public welfare and the advancement of public policy so dictate, or the orders complained of were issued in excess of or without jurisdiction (Jose vs. Zulueta, 2 SCRA 574).

DECISION

RELOVA, J :
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Petition for certiorari seeking to set aside and annul the decision, dated November 22, 1982, of public respondent National Telecommunications Commission (NTC, for short), approving the application of the Philippine Long Distance Telephone Company (PLDT, for short) of its revised schedule for its Subscriber Investment Plan (SIP) for the entire service area, including the ex-RETELCO area; as well as the order of January 14, 1983 which denied the motion for reconsideration of petitioner Philippine Consumers Foundation, Inc. (PCFI, for short) Records show that on March 20, 1980, private respondent PLDT filed an application with the NTC for the approval of a revised schedule for its Subscriber Investment Plan (SIP), docketed as Case No. 82-27. On April 14, 1982, the NTC issued an ex-parte order provisionally approving the revised schedule which, however, was set aside by this Court on August 31, 1982 in the case of "Samuel Bautista vs. NTC, et al.," 116 SCRA 411. The Court therein ruled that "there was necessity of a hearing by the Commission before it should have acted on the application of the PLDT so that the public could air its opposition, particularly the herein petitioner and the Solicitor General, representing the government. They should be given the opportunity to substantiate their objection that the rates under the subscriber investment plan are excessive and
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unreasonable and, as a consequence, the low income and middle class group cannot afford to have telephone connections; and, that there is no need to increase the rate because the applicant is financially sound." On November 22, 1982, the NTC rendered the questioned decision permanently approving PLDT's new and increased SIP rates, the dispositive portion of which reads:
"IN VIEW OF ALL THE FOREGOING, this Commission finds that applicant's reduced proposals for its revised Subscriber Investment Plan Schedule, upon further reductions herein ordered with respect to subscriber investments for new installations of single residential telephones in the Metro Manila and Provincial Service Areas, are all within the 50%-of-cost limit provided in P.D. 217; that they are just and reasonable and in consonance with the public policies declared in said decree; and that it is in the public interest that applicant's revised SIP Schedule be, as it is hereby APPROVED, as follows: REVISED SIP SCHEDULE. Service Category Revised SIP Rates Metro Manila I. New Installations 1. PBX/PABX Trunk 2. Business Phone: Single line Party line 3. Residential Phone: Single line Party line 4. Leased Line 5. Tie trunk or tie line 6. Outside local Transfers 1. PBX/PABX 2. Business Phone: Single line Party line 3. Residential Phone: Single line Party line 4. Leased Line 5. Tie trunk or tie line 6. Outside Local
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P5,000 3,500 2,000 1,800 900 2,500 2,500 2,500 1,500 800 600 600 500 800 800 800
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P3,000 2,000 1,500 1,300 800 2,500 2,500 2,500 1,200 600 500 500 300 800 800 800
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"(pp. 34-35, Rollo)

Petitioner filed a motion for reconsideration of the above judgment on December 14, 1982, and after a month, or on January 14, 1983, NTC denied said motion for reconsideration. It is the submission of petitioner that the SIP schedule presented by the PLDT is pre-mature and, therefore, illegal and baseless, because the NTC has not yet promulgated the required rules and regulations implementing Section 2 of Presidential Decree No. 217 which provides:
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"Section 2. The Department of Public Works, Transportation and Communications through its Board of Communications and/or appropriate agency shall see to it that the herein declared policies for the telephone industry are immediately implemented and for this purpose pertinent rules and regulations may be promulgated . . ." (Emphasis supplied)

Petitioner avers that the "substitute procedural vehicle utilized by NTC in allowing the establishment of SIP by PLDT was by treating the appropriate Petition of PLDT as if the same were a rate case over which the Rules of Practice was applicable. NTC proceeded to invoke the summary powers provided for in the Rules of Practice to fully bear on the hapless consumer, notably the repressive `Provisional Reliefs;' (pp. 5-6, Rollo) that at the hearings thereof, "NTC limited the numerous oppositors in the instant Application, among them PCFI, by applying the two oppositor-rule. This means that only two of the oppositors will be heard in representation of all the oppositors, again pursuant to the procedure laid down in the Rules of Practice." (p. 130, rollo) Further, the NTC invoked its extraordinary powers pursuant to Section 3 of Rule 15 of the Rules of Practice, "whereby even without an iota or proof to substantiate its application, NTC allowed the desired increase purportedly on a provisional basis." (p. 129, rollo) The question is whether or not respondent acted with grave abuse of discretion when it approved the Revised Subscriber Investment Plan (SIP) of respondent PLDT in the absence of specific rules and regulations implementing Presidential Decree No. 217. Petitioner claims that these implementing rules and regulations are mandatory pre-requisite for the approval of said SIP rates. Respondent NTC admits the absence of rules and regulations referred to in PD 217. However, it contends that nowhere in said decree is there any legal provision making the promulgation of rules a mandatory pre-requisite to the establishment of SIP and the determination of its schedules; that since respondent NTC is enjoined to implement the declared policies of the decree, for its immediate implementation, it may rely on existing Rules of Practice; that under the same Rules of Practice all existing subscriber investment plans were presented,
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considered and approved by the NTC; that the promulgation of the rules is inherently an internal and administrative matter and therefore, is not a proper subject of litigation, much less a duty of the NTC to accomplish; and, that public respondent may or may not promulgate the rules in the immediate implementation of said decree as the word used there is "may," We are not persuaded. Presidential Decree No. 217 was promulgated on June 16, 1973 and paragraph 4 of Section 1 thereof provides:
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"4. In line with the objective of spreading ownership among a wide base of the people, the concept of telephone subscriber self-financing is hereby adopted whereby a telephone subscriber finances part of the capital investments in telephone installations through the purchase of stocks, whether common or preferred stock, of the telephone company." (Emphasis supplied)

There is merit in the contention of petitioner that it is the duty of respondent NTC to promulgate rules and regulations because:
"1. P.D. 217 deals with matters so alien, innovative and untested such that existing substantive and procedural laws would not be applicable. Thus, the Subscriber Investment Plan (SIP) was so set up precisely to ensure the financial viability of public telecommunications companies which in turn assures the enjoyment of the population at minimum cost the benefits of a telephone facility. "The SIP has never been contemplated prior to P.D. 217. "The existing law on the other hand, the Public Service Act, diametrically runs counter to the spirit and intention, if not the purpose of P.D. 217. It may even be gainsaid that as long as the optimum number of individuals may enjoy telephone service, there is no limitation on the profitability of such companies. Hence, while P.D. 217 encourages the profitability of public telecommunication companies, the Public Service Act limits the same. "2. In the absence of such rules and regulations, there is outright confusion among the rights of PLDT, the consumers and the government itself. As may clearly be seen, how can the Decision be said to have assured that most of the population will enjoy telephone facilities? Did the Decision likewise assure the financial viability of PLDT? Was the government's duty to provide telephone service to its constituents subserved by the Decision? These questions can never be answered unless such rules and regulations are set up.
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"3. Finally, it should be emphasized that NTC is estopped from claiming that there is no need to promulgate such rules and regulations. In the case of PCFI vs. NTC, G.R. No. 61892, now pending resolution before this Honorable Tribunal, NTC totally refused to act on a petition filed by PLDT precisely for the promulgation of such rules and regulations. Why then did NTC refuse to act on such petition if and when there is no need for the promulgation of such rules and regulations? After all, NTC could have simply ruled that the petition in G.R. No. 61892 is unnecessary because such rules and regulations are also unnecessary." (pp. 135-136, Rollo)

At any rate, there is no justification for the rate increase of the revised schedule of PLDT's Subscriber Investment Plan. It is to say the least, untimely, considering the present economic condition obtaining in the country. The approved rate defeats the purpose of the decree which is to spread ownership among the wide base of investors. The State, in Presidential Decree No. 217 promulgated on June 16, 1973, adopted the basic policies of the telephone industry, which, among others, are: (1) the attainment of efficient telephone service for as wide an area as possible at the lowest reasonable costs to the subscriber; (2) the capital requirements of telephone utilities obtained from ownership funds shall be raised from a broad base of investors, involving as large a number of individual investors as may be possible; and (3) in any subscriber self-financing plan, the amount of subscriber self-financing will, in no case, exceed fifty per centum (50%) of the cost of the installed telephone line, as may be determined from time to time by the regulatory bodies of the State.
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The load on the back of our people is heavy enough. Let us not increase its weight further. Noteworthy is the concurrence of Justice Vicente Abad Santos in the case of Bautista vs. NTC (supra) that "the PLDT which is reported to have made over 100 million pesos in profits in just six months but with its service so poor that even the First Lady has taken notice should think of improved service before increased profits." Indeed, let us not aggravate the situation of the populace by raising the revised SIP schedule plan of the PLDT. A rate increase would be an additional burden on the telephone subscribers. The plan to expand the company program and/or improve its service is laudable, but the expenses should not be shouldered by the telephone subscribers. Considering the multi-million profits of the company, the cost of expansion and/or improvement should come from part of its huge profits. Anent the question that petitioner should have appealed the decision of respondent NTC, instead of filing the instant petition, suffice it to say that
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certiorari is available despite existence of the remedy of appeal where public welfare and the advancement of public policy so dictate, or the orders complained of were issued in excess of or without jurisdiction (Jose vs. Zulueta, 2 SCRA 574) ACCORDINGLY, the DECISION of the public respondent National Telecommunications Commission, dated November 22, 1982, and the ORDER dated January 14, 1983. are hereby ANNULLED and SET ASIDE. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Escolin and Gutierrez, Jr., JJ., concur. Aquino, Concepcion, Jr., and De Castro, JJ., took no part. Plana, J., I reserve my vote.

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