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CLARIFICATORY BULLETIN NO.529 0ctober 2018
NEW MAJOR PLAYER (NMP) SELECTION PROCESS
Pursuant to Section 7.2 of NTC Memorandum Circular (MC) NO.
09-09-2018 and Section 5.2 ofthe Instruction to Participants (ITP),
this Clarificatory Bulletin is issued by the NMP SelectionCommittee
(SC) motu proprio, and based on the questions officially received
by the SC throughthe NMP email as of 22 October 2018, to further
explain certain provisions of the MC, ITP, andthe procedures
involved during the NMP Selection Process.
ノVノレイ′3z′ノιル Ⅳο θ5Pttι ′グ15
Queries/Issues ClarificationsRe: Audit of Population Coverage
using fixedwireless and mobile networks.
The fixed wireless access and mobile networksrefered to in MC
Sec. 13.5(b)(2) refers to terestrialwireless access networks.
Any transmission network including Satellitenetworks can be used
to carry traffic to/from thefixed wireless and mobile access
networks from/tothe natiorral networks.
2. Re: Audit on the Minimum Averase BroadbandSpeed
The term "lowest comparable or equivalent offeredservice plan"
under MC Section I 3.5(c)( I ) refers tothe subscription packages
offered by existingproviders, including the dominant market
players:
a.) In terms of Price - NMP provides an equalor faster speed for
the same price of existingproviders; and
b.) In terms of Speed - NMP charges an equalor lower price for
the same speed offered byexisting providers.
3. Re: Latest Audited Financial Statement
Is the requirement for the latest AFS refering to a2018 interim
AFS or it is compliant to provide2017 AFS if that is the latest AFS
of the participantand the committed investors? What if the
companyfollows the calendar year for its fiscal year andconducts a
financial audit on an annual basis onlyand therefore cannot provide
an interim AFS for201 8?
We note that in the MC, only the AAFS for 2015,2016 and2017 are
required to be submitted.
A 2018 interim AFS is only required if theParticipant performed
an infllsion to comply with
the P10-BiHlon paid capital rcquirelllent.
Ifit foHows the calendar year and cannot provide an
interiin AFS,or ifa colninitted investor will present
itself for thc P10‐ BilHon paid capltal eligibility
requirement, then the AAFS for 2015, 2016 and
2017 would sufnce.
Please also refer to Clariflcatory/Amendatory
Bulletin No.1.
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4. Re: SEC Equivalent Documents
In some foreign countries, there is no equivalentgovernment
agency as the SEC to certifodocuments as true copies, or the
equivalentgovernment agency to the SEC does not certifydocuments as
true copies. How do we then complywith the requirement to provide
certified truecopies? Is it enough that the document
iscertified/stamped as true copy and/or a properEnglish translation
by the authorized entity, arepresentative of the company, or a
local notarypublic.
Please see Clarificatory Bulletin No. 2, Item No. l4and
Clarificatory Bulletin 4, Item No. 18.
5. Re: GIS and AFS Equivalent Documents
In the event that such certification cannot beobtained from the
country's equivalent corporateregulator, or its Embassy or
Consulate in thePhilippines, can such certification to be issued by
arepresentative of the company instead?
Please see Clarificatory Bulletin No. 2, Item No. 14,and
Clarificatory Bulletin No. 4, Item No. 19.
6. Re: Authentication of Foreign Documents
May we confirm that the documents to besubmitted by the foreign
investors as part of theFirst Submission Package are needed to
beauthenticated by the Philippine Consular office inthe country of
origin only after the NMP has beendeclared and confirmed?
Yes. Authentication or consularization of foreignexecuted
documents will only be required during theprocess for issuance of
the CPCN to the NMP.
Please refer to Clarificatorv Bulletin No. 4. Item No.8.
7. Re: List of Universal and Commercial Banks
Can the NTC provide an official list of all theuniversaland
commercial banks in the Philippines?
Please refer to the identified universal andcommercial banks by
the Bangko Sentral ngPilipinas in its website:http://www.bsp.
gov.ph/banki n g/d irectory.asp
8. Re: Number of Representatives
How many people will be allowed to be present perparticipant
during the opening of the biddocuments on November 07?
Due to space limitation, the Selection Committeeencourages
Participants to limit their representativesto not more than three
(3) individuals during theOpening of Bids on 07 November 2018.
9. Re: Signature of Authorized Representative
ls it correct that the Authorizations, OmnibusSworn Statement,
and Sworn Undertaking shall besigned by the representative
collectively appointedby the participant and its investors in
theResolution executed by each of their
authorizedrepresentatives?
It is permitted.
However, please refer to Clarificatory Bulletin No.4, Item No.l
I regarding signatories to PCCUndertaking.
I 0. Re: Authorized Representatives
Do the Participant and its comrnitted investors needto submit a
Power of Attorney and/or Secretary's
Yes.
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Certificate for the appointment of their
authorizedrepresentatives as part of the bid documents?
If yes, can a foreign committed investor submit aPower of
Attorney (instead of Secretary'sCertificate), and does the Power of
Attorney haveto be notarized and authenticated by the
PhilippineConsular office in the country of origin?
Yes, it must be notarized but authentication orconsularization
of foreign executed documents willonly be required during the
process for issuance ofthe CPCN to the NMP.
1 l. Re: Omnibus Sworn Statement. Par.l
Is the Resolution being refered to one that isexecuted by each
ofthe authorized representativesof the participant and its
committed investors?
Yes.
12. Re: Sworn Undertaking
Is this executed by the sole authorizedrepresentative of the
participant and its committedinvestors as designated in the
resolution? If yes, dowe need to attach a Secretary's Certificate
orResolution showing the authority of the
authorizedrepresentatives?
ls this executed by just one representative of theParticipant
and all the committed investors?
Yes.A Secretary's Certificate or Resolution indicatingthe
authority of the authorized representative/s isrequired to be
attached.
Yes, it is allowed subject to authorization by
thePrincipals.
13. Re: Summary Sheet
Is there a prescribed form for the Summary Sheetdescribed in ITP
Sec. 8.3(g)(3)?
None. Please see Clarificatory Bulletin No. 4, Item31 and
Clarificatory Bulletin No. 3, Item No. I (C)(3 ).
14.Re:Bidding Agreement under MC Sec.1.10(b)
and ITP Sec.4.l(b)
Please conflrm our understanding that the
comnlitinent to increase the authorized capital
stock required under NIIC Sec.1.10(b)(1)pertains tO
the commitment to satisfy the P10 Billionminimum paid up
requirement in Sec.10.bof MC
09-09-2018
Pfease confirm our understanding that "details ofnumber, amount
and schedule of payments ofparties to the Bidding Agreemenl "
required underMC Sec.l.l0(bx2) pertain to details of how theparties
to the Bidding Agreement plan to satisfu thePhpl0 Billion minimum
paid up requirement inSec. 10.1(b) of MC 09-09-2018 and that it is
notrequired for the Bidding Agreement to contain orprovide the
NMP's funding strategy (i.e., whetherfunded by equity or debt) for
its Capital andOperational Expenditure within the
CommitmentPeriod.
MC Sec.1.10(b)(1)pe■ ains tO the requttement toincrease its
capital to such amounts that wi‖ ensure
the attainment ofthe CLoS and in accordance with
its Bidding Agreement.
Note thatthe P10-Billion is a nnancial qualiflcation
requirement under the NIIC.
The ``details of number, amount and schedule of
payments ofpartiesto the Bidding Agrecment"shall
necessarily contain such details to ensure the
attainment ofthe CLoS for the entire Commitment
Perlod.
Please see Clarificatorv Bulletin 2. Item No. 4
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15. Re: Contingent Radio Frequencies
We request thatNTC categorically undertake in theITP and MC that
the entire lOMHz band that willbe released as part of the
BayanTelecommunications case shall be allocated to thenew entrant
and that no spectrum cap shall beintroduced. However, it would be
prudent thatwhen a re-distribution of the lower bands occur,that
the distribution in the 2.l00MHz band is alsoperformed. It is
clearly unreasonable to withholdspectrum from the new entrant on
the basis that thiswill provide him with the marginally
larger2.l00MHz holding than the incumbents when thereare no such
provisions pertaining to the 900MHzand 1800MHz bands.
In the event that there is a final and executorydecision or
resolution by the Courts in favor of thegovernment, the NTC shall,
within a reasonableperiod of time, also assign the relevant
radiofrequencies to the NMP.
The Selection Committee cannot comment aboutfrequencies outside
those expressly mentioned inSection 3 of the MC.
16. Re: Nomination of Subsidiary. Affiliate.
orrelated-company
Please reconsider authorizing a party to theBidding Agreement to
nominate its subsidiary,affiliate or related company as the entity
which willfulfill the Technical Capability requirement,without
requiring such nominated entity to be acommitted investor. This
practice has been adoptedin the biddings for the PPP projects of
the NationalGovernment or GOCCs since most investorsnormally use
holding companies to participate inbids and the establish separate
special purposeproject companies to undertake specific
projects.These project companies are usually highlyregulated and
have contractual and regulatoryrestrictions in investing in other
business ventures,which is why it is usually the parent
holdingcompany that undertake investment in businessventures
whether in the same or in anotherjurisdiction.
For example, in the BCDA's ongoing bidding tomanage, operate and
maintain the existing and thenew passenger terminal for the Clark
InternationalAirport, the required O&M Experience may
besatisfied by a Consortium Member or its affiliate.
SC maintains its position as contained
inClarificatory/Amendatory Bulletin No. l, Items No.9&10
17. Re: Technical Capability
The MC set specific specifications pertaining to theoperational
experience of an applicant at minimum10 years on a national
scale.
We suggest that the member fulfilling theTechnical Capability
requirement should haveminimum l0 year operational experience
onlnternational Scale, rather as now on a NationalScale. That
should allow the new entrant todemonstrate ability to successfully
undertakeprojects outside to its home country.
NTC MC No.09-09-201 8 is flnal.
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18. Re: Certification of Technical Capability
Please clarifu that the Certification is required onlyfrom the
entity nominated to fulfill the technicalcapability requirement
(e.9., a committed investoror its affiliate.)
Please confirm if it is acceptable to:
i) Submit a license issued in favor of the entitynominated to
fulfill the Technical Capabilityrequirements under the TOR/ITP in
the event thatthe said regulatory agency does not issue therequired
certification; and
ii) A certification from an officer or director of thenominated
entity that it has the necessaryexperience for the provisioning,
delivery andoperations of the telecommunications services forthe
last ten (l 0) years; or
iii) Alternative to items (i) and (ii) above, suchother
equivalent documentation that wouldevidence that the nominated
entity has at least 10years' experience in the
telecommunicationsindustry at a national level in its home
country.
Yes. The Certification isentity nominated to
fulfillrequirement.
required only from thethe technical capability
Please refer to Clarificatorv Bulletin 4. Item 16.
Pf ease refer to Clarificatorv Bulletin 4.ltem 16.
Please refer to Clarificatorv Bulletin 4. Item 16.
19. Re: National Scale
Please define what are the minimum constraints fora "particular
region" of a country will suffice forpurposes of fulfilling the
"national scale"requirement, e.g. we assume that provision
ofservice to an area equivalent in size to one of thePhilippines'
administrative regions would notsuffice.
The "particular region" requirement for purposes offulfilling
the "National Scale" requirement wouldsolely depend on whether such
foreign countrygeographically divided its country in terms
oftelecommunications regions and granted suchlicense to that
effect.
Thus, if the foreign country only issues licensesnationwide,
then "national scale" would meannationwide operations.
20. Re: Submission of 2018 Audited FinancialStatements
Please clarifr that the MC's requirement for thesubmission of
the audited financial statements past3 years (i.e. 201 5,2016
and2017) prevails over theinconsistent requirement of the ITP and
its Annex6, which require in addition the submission of 2018audited
fi nancial statements.
There isAnnex 6.
inconsistency between the ITP and
Please see Clarificatory/Amendatory Bulletin No. l,Item
No.4.
A 2018 interim AFS is only required if theParticipant performed
an infusion to comply withthe Fl0-Billion paid capital
requirement.
If it follows the calendar year and cannot provide aninterim
AFS, or if a committed investor will presentitself for the
Pl0-Billion paid capital eligibilityrequirement, then the AAFS for
2015, 2016 and2017 would suffice.
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21. Re: Form of Participation Security
We suggest including an irrevocable BankGuarantee issued by one
of the major national orinternational banks as an acceptable form
ofParticipation Security. Such irrevocable BankGuarantee would be a
more practical form ofsecurity than initial international
remittance ofcash, and in the case ofan unsuccessful candidate,we
would propose that the Bank Guarantee isreleased when the
successful bidder has beengranted the CPCN.
Kindly confirm that the in case of a foreign bankwith a
universal or commercial banking license inthe Philippines issues
the irrevocable letter ofcredit. such letter of credit does not
need to beconfirmed nor authenticated by another universalor
commercial bank in the Philippines. For furtherclarity, please
confirm that any of the universal orcommercial banks, duly licensed
by the BangkoSentral ng Pilipinas as appearing in its website
-(http ://www.bsp. gov.ph/bankin g/directory. asp)may issue the
letter of credit, without need offurther confirmation or
authentication.
No.NTC MC 09‐ 09-201 8 is flnal.
Yes.
Please refer to Clarificatorv Bulletin No. 4. Item No.JJ,
22. Fre: Participation Security
Please confirm our understanding that any of thecommitted
investors or member of the biddingconsortium can procure and post
the ParticipationSecurity (i.e. that it is not mandatory for
theCongressional Franchise Holder itself to post theParticipation
Security in favor of the NTC).
Yes. Please refer to Clarificatory Bulletin No. 4.Item No.
9.
23. Re:Congressional Franchise Extension
lfcongressional approvalis not obtained within 90-
day requirement post bid as a result ofdelay in the
approval process,despite successfully lodging an
application with Congress as soon as the
declaration of the NMP was made, what is theeffect on the fo‖
owing:
a.)The requirement to infuse thc P10 billion
paid in capital into franchisc holder,
considering that there remains a risk that
Congress wiH not approve the change in
control of the franchisc holder until such
approval has been actua‖ y granted, and
that the grant of the CPCN therefore the
commencement of the operations of the
third telecorn is conditioned on the
approval ofthe Congress?
b.)If the cOngress has not yet approved the
change of control of the Congressional
Franchisc holder,ho、 v can the consortium
members infuse the P10 billion capitalinto
the franchisc holder if the infusion bv
Please refer to Clarificatorv / Amendatorv BulletinNo. I,Item
No. 20.
However, note that congressional approval shall berequired under
circumstances provided in theirrespective congressional franch i se
of the participant(e.9. Sale, Lease, Transfer, Usufruct, or
Assignmentof Franchise. - The grantee shall not sell,
Iease,transfer, grant the usufruct of, nor assign thisfranchise or
the rights and privileges acquiredthereunder to any person, -fir.,
company,corporation or other commercial or legal entity, norshall
transfer the controlling interest of the grantee,whether as a whole
or in part, and whethersimultaneously or contemporaneously, to
onyperson, firm, company, corporation, or entitywithout the prior
approval of the Congress of thePhilippines and compliance with the
legalrequirements stipulated in other statutes: Provided,That any
person or entity to which this franchise isvalidly sold,
transferred, or assigned shall besubject to the same conditions,
terms, restrictions,and limitations of this Act.).
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committed investors will result in a changein control, therefore
it may viewed asviolation of the franchise?
c.) Can the 90-day period be extended untilthe grant of
congressional approval andonly after the congressional approval
willparties infuse at least Pl0 billion to complywith the
requirements to obtain CPCN?
If Congress disapproves the change in control ofCongressional
Franchise holder or does not act onthe application of the franchise
holder for approvalof the change in control, what happens to
theparticipation security, considering that thedisapproval or delay
cannot attributed to the NMP?
Hence, it is the NMP's sole responsibility to timelysecure such
a congressional approval, if necessary.
24.Re:P10 Billion Paid Capital Requirement
Please conflrm our understanding that
notwithstanding the NTC response that “inevaluating the
flnancial capacity of an applicant,
the NTC adheres to the 70%-30%debt to equltyratio
requirement.''The NTC is not requiring the
Congressional Franchisc Holder to maintain a70:30 debt―
to―equity ratio during the Commitment
Period.This debt― to― equity ratio is not provided in
the ITP and NIIC and itis our understanding thatthe
reference to the 70:30 debt― to―equity ratio in the
NTC response is lnerely for purposes ofexplaining
the basis for thc P10 Billion minimum paid up
requirement.
Yes. we confirm that the reference to the 70:30 debt-to-equity
ratio in the NTC response is merely forpurposes of explaining the
basis for the Fl0 Billionminimum paid capital requirement.
25. Re: Extension of 90-day Period throughAmendatory
Bulletins
The NTC stated:
The NTC Memorandum Circular 09-09-2018 waspublished on 21
September 2018 in the PhilippineStar and took effect on 06 October
2018. It isdeemed an ffictive rule and any substantiveamendments
will require an amendatory circularwhich requires publication,
hearing on the draftand publication of amendments to be
ffictive.
We request reconsideration of this position sinceSection 7 .2 of
the MC itself states that AmendatoryBulletins are effectively only
upon posting at theNTC Website.
Further, we are particularly concerned that the 90-day period is
insufficient to secure CongressionalApproval of the sale or
transfer of the capital stockvesting controlling equity interests
in the CFHolder since the process requires plenary approvalof both
the House of Representatives and theSenate.
Amendatory Bunetins cannot be inconsistent with
the MC.
As found in the Omnibus Sworn Statement, aprospective
Participant, acknowledges, amongothers, that it has done its due
diligence on the laws,rules and regulations, prevailing
marketenvironments, regulatory processes and timelines ofthe
relevant government agencies relating to thetelecommunications
industrv.
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The timing of the NMP Selection Process willlikely coincide as
well with the adjournment ofCongress. Moreover, said Congressional
Approvalis necessary (especially with the Participation offoreign
investors) before the Participant isauthorized under its
legislative franclrise toincrease its paid-in capitalto Php l0
Billion.
26. Re Extension of 90-day Period, CongressionalApproval in
Controlling Interest
The NTC stated:"lt is the NMP's sole responsibility to secure
anapproval for its change in controlling interest."
We request reconsideration of the position of theNTC considering
that its expertise andrecommendation to the Congress may
facilitateapproval of the transfer of controlling interest.
In the alternative, please consider incorporatingadditional
provisions in the Subject Circular whichauthorize the extension of
the 90-day period tocomply with Section 10.1 If the delay in
securingthe Congressional approval is due to causes outsidethe
controlof the Participant.
Arnendatory Bu‖ etins cannot be
the MC.
inconsistent with
As found in the Omnibus Sworn Statement. aprospective
Participant, acknowledges, amongothers, that it has done its due
diligence on the laws,rules and regulations, prevailing
marketenvironments, regulatory processes and timelines ofthe
relevant government agencies relating to thetelecommunications
industry.
27.Re Forfeiture of Participation Security
The NTC answered Yes to the query:If the Participant is unable
to secure all ConditionsPrecedent for the issuance of a CPCN,
itsParticipation Security will be forfeited?
We request reconsideration on the response to thequery since the
inability to secure ConditionsPrecedent may be due to causes
outside of itscontrol. Moreover, it is not stated in the MC or
tlreITP that the failure to secure Conditions Precedentis
considered as "refusal to do anv or all actsnecessary".
Under Clarificatory/Amendatory Bulletin No. l,Item No. 13, if
the inability to secure all conditionsprecedent for the issuance of
the CPCN isattributable to the grounds provided in MC
Section6.20)$),the Participation Security shall be forfeitedin
favor of the NTC.
However, if the inability to secure all conditionsprecedent is
through causes arising without any faultwhatsoever on the parl of
the Participant, then thatmay constitute a defense in the
forfeitureproceedings on the Participation Security.
28. Re Amendatory Bid Bulletin stating that theextension of 90
days is only allowed in cases offorce majeure
Please consider including Material AdverseGovernment Actions
(i.e., an act or omission of thegovernment or any of its agencies
which preventthe provisional NMP from complying with theconditions
precedent for the issuance of theCPCN). We note that the concept of
MAGA isusually incorporated in PPP Contracts and the saidground is
basis to seek relief or an extension incomplying with an
undertaking or obligations.
The 90-day extension as referred to in ReAmendatory Bid Bulletin
relates only to forcemajeure situations.
As for other situations, kindly refer to the OmnibusSworn
Statement wherein a prospective Participant,acknowledges, among
others, that it has done its duediligence on the laws, rules and
regulations,prevailing market environments, regulatoryprocesses and
timelines of the relevant governmentagencies relating to the
telecommunicationsindustrv.
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29. Re: Congressional Approval, Definition ofForce Majeure
We request reconsideration of this position since itwill be
prejudicial for the Participants to unwindtheir capital infusion in
the event thatCongressional Approval is not secured for
reasonsoutside the control ofthe Participants.
Please also provide a definition for what constitutes
force majeure in the context of the NMP selection.
Force majeure in law refers to natural calamities.
As found in the Omnibus Sworn Statement, aprospective
Participant, acknowledges, amongothers, that it has done its due
diligence on the laws,rules and regulations, prevailing
marketenvironments, regulatory processes and timelines ofthe
relevant government agencies relating to thetelecommunications
industrv.
30. Re: Tie-Breaking Formula
We propose below an alternative tie-breakformula:
If two or more applicants' Submissions have thesame number of
points, the relevant applicants willbe provided with a further 14
days in order to re-evaluate and re-submit their applications
withadditional commitments. The applicant with thehighest points
re-submission the number of pointsis still equal, the Selection
Committee will selectthe applicant with the highest points in Year
4 asthe provisionalNMP.
NooNTC MC No.09-09-2018 is inal.
31. Re: Procedure in case the chosen NMP fails tosecure its
CPCN
Given that the Participations Security is valid untilthe
issuance of the CPCN, kindly confirm that ifthe NMP fails to secure
the CPCN, then the NTCEn Banc and the Selection Committee will
proceedto inform the Participant with the second highestpoints as
the new Provisional NMP, which shallthen undergo the Document
Verification Phase,and so on as the case mav be. until the NMP is
ableto secure the CPCN.
Yes, the NTC En Banc will direct the SC to performDocument
Verification Phase on the next-highestranked/ Participant until a
new NMP is duly issueda CPCN.
32. Re: Reservation Clause
In light of the significant resources expended by allapplicants
for this process, we suggest that anytermination should only be
done if there areindicators of improper activities. All
applicantswill submit their bids in good faith and where
suchsubmissions are valid in accordance with the MCand applicable
legislation and where no improperactivities has been found, any
reason fortermination must be made transparent and
publiclyavailable.
A Reservation Clause is a standard provision inlocal and
international selection/bidding processes.
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33. Re: Congressional Approval in Change rnControl
Please confirm whether the CF is still required toundergo
congressional approval for a change incontrol will occur at the
level of the CF Holder'sparent company.
NTC cannot comment on issues outside of itsjurisdiction.
34. Re: PCC Approval
Please confinn that the PCC exernption will notapply if the
change in control will occur at the levelof the CF Holder's parent
company.
NTC cannot comment on issues outside of itsjurisdiction.
35. Re: Roll Out Plan, NationalTower Policy
We strongly suggest that Government does notlimit the number of
telecoms tower providers. Seerelated comments and discussions in
towerlicenses.
In any case, in the event that Government decidesto award only 2
telecoms tower providers, wewould request that base upon the Roll
Out Planagreed with NTC that the telecoms tower providerswill also
have obligations to comply with therequirements outlined in the
Roll Out Plan of thenew entrant. It will be unreasonable
forCovernment to impose penalties on the entrant forfailure of
another Licensee to perform.
The DICT is the primary agency tasked to formulatethe national
tower policy.
The issue is not within the competence or authorityof the
Selection Committee to respond to. In anyevent, every Participant
has undertaken in itsOmnibus Sworn Statement that it has done its
duediligence on the laws, rules and regulations,prevailing market
environments, regulatoryprocesses and timelines of the relevant
governmentagencies relating to the telecommunicationsindustry
36. Re: Performance Securitv
We suggest that an irevocable Bank Guaranteeissued by one of the
major national or internationalbanks be accepted. Further, we would
assume thatit would be for a total of l0o/o of the
remainingcumulative Capital and Operational
ExpendituresCommitments. This is important for the newentrant as
the two current incumbents do not haveany of these obligations.
We would further propose that these are put inplace prior to the
commencement of eachCommitment year and not for the entire
period.Again, the current incumbents do not have
thisobligations.
We propose a change to the last paragraph underthis Section as
follows: "The Performance Securityshall be forfeited in favor of
the government if theNMP fails to comply with its Commitments in
anyyear within the Commitment Period unless the NMPcan demonstrate
that the NMP has made allreasonable efforts to fulfil its
Population CoverageObligations and its Minimum Average
BroadbandSpeed Commitments, but was unable to do so due tocauses
beyond its control. This includes failure bylocal authorities to
provide relevant aoorovals
NTC ⅣIC No.09-09-201 8 is flnal.
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within legislative timelines, failure by CentralGovernment to
implement critical legislationpertaining to right of way and other
infrastructurematters such asfailure of Licensed Tower Providersto
perform."
37. Re: Sanctions for Breach of Commitments
We propose to amend this section as follow:
"failure if the NMP to comply with any of itscommitments shall
be considered a breach unlesssuch breach was outside its control
and where theNMP has made all reasonable efforts to fuffill
itsCommitments."
NTC MC No.09-09-201 8 is flnal.
38. Re: R.4.7925
Please confirm our understanding that no penalty iscurrently
being enforced for non-compliance withthe dispersal of ownership
requirement. We notethat amongst the current congressional
franchiseholders, only a few are currently listed on thePhilippine
stock exchange.
The provisions on public ownership under R.A. No.7925,as wellas
its other provisions ofthe law are infull force and effect.
Please refer to Clarificatorv Bulletin No. l. ltemNo.22.
39. Re: Tower Licenses
With the significant Performance Guaranteeprinciple only applied
to the new entrant, thisobligation appears unreasonable as the new
entrantwill be fully dependent on such licensed partiesperform.
Limiting the number of Licenses to only twoshould also trigger
an obligation on the TowerCompany to fulfill the roll out
requirements of thenew entrant as a priority and to put in place
there levant Performance Guarantees.
Failure of the Tower Company in fulfilling therequirements of
the NTC approved roll out planshould relieve the new entrant from
its obligationsunless the new entrant has failed in its
ownobligations.
Recommendation: Include in the MC an expresscommitment from
Government that all possibleassistance will be provided in relation
to ensuringthat local authorities comply with the ease of
DoingBusiness Act, signed into Law May 2018 by thePresident.
NTC cannot comment on matters outside itsjurisdiction.
40. Re: Radio Access Network Regulations
Please confirm our understanding that there is noregulation
requiring the CF lrolder to be entitywhich will import, procure,
maintain or operate(and secure its own licenses for) Radio
AccessNetwork ("RAN") and other telecommunications
Pursuant to existing laws only the CF holder canoperate radio
access network equipment and allpermits and licenses shall be in
the name of the CFholder.
SMP 3″〃θ′ルⅣο.θ5Pttι ″グ′5
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equipment such as mobile towers or radiotransmitters.
Further, with the government encouraging theestablishment of
Common Tower Companies,please confirm if the Franchise Holder may
leasethese assets from such companies or even
relatedNon-Telecommunication Company.
In relation to this, we likewise request for a copy ofthe
exposure draft ofthe proposed rules governingthe establishment and
use of common towers.
NTC cannot comment on matters outside itsjurisdiction.
41. Re Implementation of Free Trade Agreements
Please confirm that the requirements under theEFTA-PH FTA will
be actively enforced by theNTC at all times. In particular, we
requestconfirmation that NTC will strictly enforcemandatory
interconnection at non-discriminatoryterms, conditions, and rates,
and for this purpose theGovernment commits to issue the
necessaryresulations for its enforcement.
The issue is not within the competence or authorityof the
Selection Committee to respond to.
42. Re: NGCP Dark Fiber
Please provide relevant information andGovernment commitments
regarding this in orderfor applicants to adequately plan and cost
thenetwork. The anticipated costs for dark fiber accessin the NGCP
should be disclosed as earlv aspossible during the process.
Obligations of the curent dominant incumbentoperators to publish
a Reference Access Offershould be enforced and prices, terms
andconditions of such should be approved by bothNTC and the
Philippine Competition Commissionin order to ensure that prices are
not discriminatoryor set high in order to prevent access.
Please provide a rough estimation of costs to obtainaccess to
the Government Landing Stations and thecapacity offered through the
Facebook agreementsas this will be of critical importance for the
deliveryof high speed broadband services throughout thePhilippine
islands.
NTC cannot commentiurisdiction.
matters outside its
43. Re: Spectrum and Remedies
Spectrum and Remedies: Efficient spectrumdistribution and
management will be of criticalimportance for Philippines in order
to obtaincompetition in the mobile sector benefitting theoverall
economy and society at large. Relativelyequal distribution of
low-frequency spectrum is themost critical factor to ensure
competition betweenthe MNOs in the Philippines
The absence of 2G spectrum and low-band 39spectrum can be
mitigated with the followine 2
The Selection Committee cannot comment onmatters outside the
purview of the MC and the ITP.
/VMP 3“Jrarレ Ⅳo θ5Pagθ r2りC15
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remedies, which we suggest Governmentincorporate its commitments
in relation theretothe TOR:
l. mandate national roaming on the otheroperators' networks with
sustainable terms ofaccess, which would enable subscribers in the
newentrants network to roam onto a host network if thehome network
is not present in a particular location(for 2G, this location would
include the whole ofPhilippines).
2. a spectrum roadmap with a clear path toimproving the spectrum
portfolio of the newentrant; Spectrum must be distributed in such a
waythat there exist viable spectrum packages that cansupport the
effective operation of three autonomouswireless networks.
O
n
As found in the Omnibus Sworn Statement, aprospective
Participant, acknowledges, amongothers, that it has done its due
diligence on the laws,rules and regulations, prevailing
marketenvironments, regulatory processes and timelines ofthe
relevant government agencies relating to thetelecommun ications
industry.
44. Re: Spectrum Usage Fees (SUF)
With the SUF being revised, we suggest that thisshould be
concluded prior to the Bid date in orderfor the applicants to
factor this into the valuationand business plan.
We also suggest that a reasonable imposition ofspectrum caps be
introduced, with spectrumholdings in excess of such caps being
subject to"windfalltax"
The Selection Committee cannot comment onmatters outside the
purview of the MC and the ITP.
| 45. Re: Competitiveness Remedies
With both Smart and Globe designated Dominantentities, such
dominance also comes withobligation not to abuse their
position.
We suggest that the current process, deliberationsand decisions
pertaining to the National Roamingobligations be reviewed by
PCC.
We also suggest that with the Mobile VoiceTermination price now
set at PHP 0.50, this levelshould be used as reference point for
the provisionof National Roaming Voice Services. ln relation
toAccess to Nationwide Data Roaming Services, theimportant
principle of Wholesale Margin Squeezemust be adhered to and
remedies put in place toavoid such abuse of dorninant position. One
way ofhandling Data Roaming provisions are through theprinciple of
Retail Minus obligations. This shouldensure that the new entrant
have access and margineven if the dominant operators drop the
retailprices. Again, this is within the remit of both NTCand
PCC.
We also suggest that the Nationwide NationalRoaming covering
2G/3Gl4G services be imposedas an obligation on both the dominant
operatorsprior to Bid submission date in order for theparticipants
to have firm visibilitv of their rishts and
The Selection Committee cannot comment onmatters outside the
purview of the MC and the ITP.
ノVルイP3γ JJa′ノ″NO θ5P"θ ′Jグ′5
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associated costs. This would be a natural element ofa Reference
Access offer where such RAO containsterms and conditions for
supply, costs, timelines forsupply, technical standards and dispute
provisions.All of these should comply with the
stipulationscontained in the Philippine Competition Act.
46. Re: RA 7925 requiring a full-servicetelecommunications
entity with a license formobile also to provide landlines
We suggest that the MC expressly clarifo eithermandating
compliance with the Republic Act orrelievins the new entrant of
this oblieation.
The Selection Committee cannot comment onmatters outside the
purview of the MC and the ITP.
47. Re:National Broadband Plan
The Bid package issued by the NTC contained acopy of the
National Broadband Plan which, indetail, outlines the supporting
regulatory policiesrequired to ensure a competitive telecom sector
andresulting reasonable prices and high qualityservices.
Can the applicant assume in its business plan thatcritical
foundation regulations, as outlined in theNational Broadband Plan,
will be implementedprior to issuance of CPCN?
The most critical regulations are:- National Domestic Roaming,-
Open Access Regulations- Share Tower Regulations
Please see Clarificatorv Bulletin No. 2. ltem No. 5
48. Re: The final Terms of Reference has noIongstop date/limit
for launch of operations.
Can NTC confirm that it will be the NMP'sprerogative as to when
it will launch commercialservices and officially commence its Year
Icommitments?
It is the NMP's prerogative as to when it will launchits
commercial services. The NMP's Year 1commitments officially
commences on the issuancedate of its CPCN. The Independent Auditor
shallconduct test and measurements starting on theannual
anniversary date ofthe issuance ofthe CPCNunder Section 13.5(a) of
the MC.
49. Re: Amendments to the Public Service Actlifting nationality
restrictions ontelecommunications remain pending, making
itdifficult for foreign parties to finalize theirparticipation.
We request the NTC to reconsider deferment of thebid submission
date until the PSA amendments havebeen passed.
The NTC cannot comment on pending bills.
A/MP β“/Jarル 7Va.θ5
Pagι rィ 9rfj
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50. Re Conversion Rates
Section 1.6 (b) of the ITP provides:b. "For purposes of
determining the FinancialCapability of any Participant under Secs.
4.2(b)and 8.3(9)(2) and (3) of the ITP, all amountsexpressed in
foreign currencies shall beconverted to their Philippine peso
equivalentbased on the prevailing exchange rutes as of 22October
201 8, officially published by the BangkoSentral ng Pilipinas (BSP)
atwww.bsp. gov.ph/statistics/sdds/ exchrates.htm.
The Selection Committee hereby provides, asAnnex I of this
bulletin, the foreign curuencyconversion rate to Philippine Peso,
applicablefor22October 2018, as officially published by the
BangkoSentral ng Pilipinas (BSP) at www.bsp.gov.ph/statistics/sdds/
exchrates.htm.
Participants whose paid-capital and auditedfinancial statements
are expressed in foreigncurrency shall use the applicable foreign
currency toPhilippine Peso conversion rate in the SummarySheet
required to be submitted for the paid capital ofthe parties to the
binding bidding agreement, basedon their latest audited financial
statements.
5l. Re: Selection Documents Cabinet Inspection Participants are
reminded to pack their SelectionDocuments according to the inner
dimensions ofSelection Document Cabinet as discussed
inClarificatory Bulletin No. 3, Item IL B.
Participants may inspect one of the SelectionDocument Cabinets
from 0l to 04 November 2018,8:00 a.m. to 5:00 p.m. PST, at the
Ground FloorLobby of the NTC Main Office Building.
52. Re: Lockable Cases, Bags or Containers Participants are
reminded to comply withClarificatory Bulletin No. 3, Item No. II.
C.regarding submission of Selection Documents usinglockable cases,
bags, or containers.
The herein clarifications shall form part of the Selection
Documents. Correspondingly, all otherprovisions in the Selection
Documents affected by these clarifications are similarly amended
ormodified.
ⅣЪιイP3"〃α″ Ⅳο.θ5Paga r5`/15
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