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CITY OF MANILA v. GRECIA-CUERDO
February 4, 2014 | Peralta, J. | Appeals to the SC | Name of digester
PETITIONER: The City of Manila, represented by Mayor Jose Atienza Jr. and City Treasurer Liberty Toledo
RESPONDENTS: Hon. Caridad Grecia-Cuerdo as Presiding Judge of RTC Br-112 Pasay City
SUMMARY: place summary
DOCTRINE: place relevant doctrine
FACTS:
1. Transpo
2. 3A
ISSUES/HELD:
1. Whether the instant petition should be denied for being moot and academic—YES
RATIO
1. Transpo
2. 3A
DISPOSITION: petition denied.
(IF ANY) DISSENTING/CONCURRING OPINION
J. Abad
NAPOCOR v CA
September 26, 1997 | J. Romero | Area of operation
PETITIONER: NATIONAL POWER CORPORATION (for GR 112702), PHIVIDEC INDUSTRIAL AUTHORITY (GR 113613)
RESPONDENT: COURT OF APPEALS and CAGAYAN ELECTRIC POWER AND LIGHT CO., INC. (CEPALCO)
SUMMARY
CEPALCO had temporary authority to distribute electricity within the PIE-MO (managed by PIA). CEPALCO was unable to
meet the energy demands, so PIA applied with the NPC for direct power connection on three occasions. CEPALCO
questioned the propriety of these actions, to which the CA agreed (citing previous SC decisions on the same issue)
saying that a hearing is necessary before NPC can provide direct supply of power in cases where there is already a
private franchise holder in the same operation. The SC agreed on this point, but said that it is no longer the ERB which
has the authority to conduct this hearing, but the DOE.
FACTS
1. Cagayan Electric and Power Light Company (CEPALCO), under its franchise in RA 3247, had license "to
construct, maintain and operate an electric light, heat and power system for the purpose of generating
and/or distributing electric light, heat and/or power for sale within the City of Cagayan de Oro and its
suburbs" for 50 years. RA 3570 expanded the area of coverage of the franchise to include the municipalities
of Tagoloan and Opol, Misamis Oriental. RA 6020 further amended the same franchise to include in the
areas of CEPALCO's authority of "generating and distributing electric light and power for sale," the
municipalities of Villanueva and Jasaan, also of the said province.
2. As manager of the PHIVIDEC Industrial Estate Misamis Oriental (PIE-MO), PIA granted CEPALCO temporary
authority to retail electric power to the industries operating within the PIE-MO, such authority to be
co-extensive with the territorial jurisdiction of PHIVIDEC Industrial Estate for up to 10 years.
3. CEPALCO proved no match to the power demands of the industries in PIE-MO that most of these companies
operating therein closed shop. So PIA applied with the National Power Corporation (NPC) for direct power
connection.
4. CEPALCO filed a petition for prohibition, mandamus and injunction before the RTC against the NPC. The RTC
ruled in their favor. The SC denied NPC’s appeal, saying that the statutory authority given to the NPC as
regards direct supply of power to BOI-registered enterprises "should always be subordinate to the
'total-electrification-of-the-entire-country-on-an-area-coverage basis policy' enunciated in PD 40."
a. 'It is only after a hearing (or an opportunity for such a hearing) where it is established that the
affected private franchise holder is incapable or unwilling to match the reliability and rates of NPC
that a direct connection with NPC may be granted.' Here, petitioner-appellee's reliability as a power
supplier and ability to match the NPC rates were never put in issue.
5. Notwithstanding said SC decision, there was a new application for the direct supply of electric power from
NPC. The Hearing Committee of the NPC had started hearing the application, prompting CEPALCO to file a
contempt case. The RTC, as affirmed by the SC, held the NPC officials in direct contempt.
6. However, during the pendency of the contempt case before the SC, PIA contracted the NPC for the
construction of a 138 kilovolt (KV) transmission line from Namutulan substation to the receiving and/or
substation of PIA.
7. In response, CEPALCO filed in the RTC a petition for certiorari, prohibition, mandamus and injunction (with
TRO) against the NPC and some officials of both the NPC and PIA. The RTC, citing res judicata, ruled in favor
of CEPALCO.
8. The CA reversed the RTC here. As to whether or not "the NPC itself has the power to determine the propriety
of direct power connection from its lines to any entity located within the franchise area of another public
utility" the CA said that before a direct connection to the NPC may be granted, a proper administrative body
(in this case, the ERB and not the NPC) must first conduct a hearing "to determine which entity, the franchise
holder or the NPC, has the right to supply electric power to the entity applying for direct connection."
a. NPC is not an administrative body as jurisprudentially defined, and that the NPC cannot usurp a
power it has never been conferred by its charter or by other law -- the power to determine the validity
of direct connection agreement it enters into in violation of a power distributor's franchise.
b. Thus, considering that PIA professes to be and intends to engage in the business of a public power
utility, it must first apply for a public convenience and necessity (conferment of operating authority)
with the ERB.
9. PIA asserts that it may receive power directly from the NPC because it is a public utility.
a. PD 538, as amended, empowers PIA "as and to be a public utility to operate and serve the power
needs within PIE-MO, i.e., a specific area constituting a small portion of petitioner's franchise
coverage," without, however, specifying the particular provision which so empowers PIA.
ISSUE
Does PIA perform the functions of a public utility? YES (See RATIO 1-3)
Whether or not the NPC may supply power directly to PIA in the PIE-MO area where CEPALCO has a franchise – TO BE
DETERMINED BY HEARING
Who is the proper authority to conduct this hearing? – THE DEPARTMENT OF ENERGY (See RATIO 5-8)
RATIO
1. The Court defined a "public utility" as a business or service engaged in regularly supplying the public with
some commodity or service of public consequence such as electricity, gas, water, transportation, telephone
or telegraph service. The term implies public use and service.
2. IN THIS CASE, PIA is authorized to render indirect service to the public by its administration of the PHIVIDEC
industrial areas like the PIE-MO and may, therefore, be considered a public utility.
3. Sec. 4 of PD 538 itself confers upon the PIA the power to operate and maintain electric light and power
systems necessary or useful in the conduct of industry and commerce or in the attainment of the purposes
and objectives of the PD.
a. As it is expressly authorized by law to perform the functions of a public utility, a certificate of public
convenience is not necessary for it to avail of a direct power connection from the NPC.
4. HOWEVER, such authority to be a public utility may not be exercised in such a manner as to prejudice the
rights of existing franchisees.
a. By its own actions, PIA recognized the rights of the franchisees in the area. The PIA Board of
Directors promulgated the "Rules and Regulations To Implement the Intent and Provisions of
Presidential Decree No. 538" which states that the PIA is responsible for providing required utilities
and services inside the estate, SUBJECT TO the PROVISO that similar contract(s) existing prior to
the effectivity of this Rules and Regulations shall continue to be in full force and effect.
b. NOTE: The aforesaid Rules took effect 3 months after the contract between PIA and CEPALCO was
entered into (in FACTS #2). As such, the Rules and Regulations itself allowed the continuance of the
supply of electric power to PIE-MO by CEPALCO.
c. That the contract was not renewed did not change the fact that within that five-year period, in
violation of both the contract and its Rules and Regulations, PIA applied with the NPC for direct
power connection. The matter was aggravated by NPC's favorable action on the application, totally
unmindful of fact that while it has sole responsibility to undertake generation of electrical power, the
distribution shall be undertaken by entities such as private utilities (like CEPALCO).
5. While it notified CEPALCO of the hearing it conducted, the NPC is not the proper authority, not only because
the subject of the hearing is a matter involving the NPC itself, but also because the law has created the
proper administrative body vested with authority to conduct a hearing.
6. Neither is it the ERB. The ERB is basically a price or rate-fixing agency. RA 7638 transferred the non-price
regulatory jurisdiction, powers, and functions of the ERB to the DOE. Furthermore, the intent to place the
ERB’s non-rate functions to the DOE is shown in the DOJ Opinion No. 22, which stated that the law leaves no
ambiguity as to the RA 7638 on the matter.
a. IN THIS CASE, the determination of which of two public utilities has the right to supply electric power
to an area which is within the coverage of both is certainly not a rate-fixing function.
b. It deals with the regulation of the distribution of energy resources which is now a function of the
DOE. Hence, it is this Department which shall then determine whether CEPALCO or PIA should
supply power to PIE-MO.
7. Even without the new legislation affecting its power to conduct hearings, it is certainly irregular, if not
downright anomalous for the NPC itself to determine whether it should supply power directly to the PIA or the
industries within the PIE-MO.
8. On the other hand, ventilating the issue in a public hearing would not unduly prejudice CEPALCO although it
was enfranchised by law earlier than the PIA. Exclusivity of any public franchise has not been favored by this
Court such that in most, if not all, grants by the government to private corporations, the interpretation of
rights, privileges or franchises is taken against the grantee.
DISPOSITIVE
WHEREFORE, both petitions in G.R. No. 112702 and 113613 are hereby DENIED. The Department of Energy is
directed to conduct a hearing with utmost dispatch to determine whether it is the Cagayan Electric Power and Light
Co., Inc. or the National Power Corporation, through the PHIVIDEC Industrial Authority, which should supply electric
power to the industries in the PHIVIDEC Industrial Estate-Misamis Oriental. This Decision is immediately executory.
MONTOYA v. IGNACIO
December 29, 1953 | Bautista Angelo, J. | Approval of Sale and Mortgages | Conejero
PETITIONERS: Sancho Montoya, in his own behalf and as guardian ad litem of the minors Ismael, Felicitas, Divina and
Napoleon, all surnamed Montoya
RESPONDENT: Marcelino Ignacio
SUMMARY: Jeepney owner Ignacio is being sued for indemnity for the death of elementary teacher Tomasita Arca, who
died when Ignacio’s jeep, operated by lessee Leoncio Tahimik, collided with a Luzon Bus liner. The plaintiffs Montoya
herein appeal the acquittal of the defendants, saying Ignacio is liable, since the lease to Tahimik was invalid due to
the lack of required approval by the Public Service Commission. The Supreme Court agreed.
DOCTRINE: The law requires a public hearing and approval of the Public Service Commission in order that a franchise,
or any privileges pertaining thereto, may be sold or leased without infringing the certificate issued to the grantee.
Since a franchise is persona
l in nature any transfer or lease thereof should be notified to the Public Service Commission so that the latter may
take proper safeguards to protect the interest of the public. The hearing should be with notice to all interested parties,
in order that the Commission may determine if there are good and reasonable grounds justifying the transfer or lease
of the property covered by the franchise, or if the sale or lease is detrimental to public interest. Section 16, paragraph
h, of the Public Service Law means that if the property covered by the franchise is transferred or leased to another
without obtaining the requisite approval, the transfer is not binding against the Public Service Commission; to protect
public interest, the grantee continues to be responsible under the franchise and its consequences in relation to the
Commission and to the public.
FACTS:
1. This is an action by the widower and four minor children of Tomasita Arca for P31,000 indemnity.
a. Arca was a paid passenger from Tanza to Cavite City on January 5, 1949, who died on a jeepney driven by
Leonardo de Guzman when it collided with a Luzon Bus Line bus.
b. Arca was a school teacher of Tanza Elementary School with annual salary of P1,320. Her family sues for the
jeepney’s failure to safely transport Tomasita and her death.
2. Defendants as a special defense said that this case should be held in abeyance until the criminal case,
instituted by the investigating Office of the Provincial Fiscal of Cavite against the bus driver for triple homicide through
reckless imprudence in CFI Cavite, is ended.
3. The lower court dismissed the case because it was not proven that the collision was due to the negligence of
the driver of the jeepney whose ownership is attributed to defendants.
4. The CA affirmed the decision appealed from, but NOT on the basis of plaintiffs’ failure to prove that the
collision was due to the negligence of the driver.
a. The decision was based on the fact that the one operating the jeepney was not Marcelino Ignacio, but
Leoncio Tahimik who leased such in a document executed on June 8, 1948.
b. Plaintiffs therefore filed the present petition for review, claiming that the lease was invalid due to the lack of
approval by the Public Service Commission as required by law.
ISSUES/HELD:
1. Whether in an action for damages caused by the breach of the obligation to safely carry passengers, the
negligence of the driver needs to be proven for liability to attach—YES.
2. Whether the lease to operator Tahimik was null and void for lack of approval by the Public Service
Commission (OR, whether jeepney owner Ignacio is liable for the collision)—YES.
RATIO:
1. Petitioners claim that the requirement to prove negligence is contrary to the ruling in Castro v. Acro Taxicab.
While such is the ruling entertained by the lower court it was not concurred in by the Court of Appeals so much so that
it made an express manifestation that it fully agreed with the theory of petitioners.
2. Since the lease of the jeepney in question was not approved, Marcelino Ignacio still continues to be its
operator in contemplation of law, and is responsible for the consequences incident to its operation, one of them being
the collision under consideration.
a. Approval required: Section 16, paragraph h, of the Public Service Law requires approval of the Public Service
Commission in order that a franchise, or any privilege pertaining thereto, may be sold or leased without infringing the
certificate issued to the grantee.
i.Since a franchise is personal in nature any transfer or lease thereof should be notified to the Public Service
Commission so that the Commission may take proper safeguards to protect the interest of the public.
ii.Section 16, paragraph (h) provides in its last part that "nothing herein contained shall be construed to prevent the
sale, alienation, or lease by any public utility of any of its property in the ordinary course of business". This does not
mean approval is a formality. It means that even if the approval has not been obtained the transfer or lease is valid
and binding between parties although not effective against the public and the Public Service Commission. The
approval is only necessary to protect public interest.
b. Public hearing requirement: Before the approval is granted, there should be a public hearing, with notice to all
interested parties, in order that the Commission may determine if there are good and reasonable grounds justifying
the transfer or lease of the property covered by the franchise, or if the sale or lease is detrimental to public interest.
c. Consequence of non-approval: If the property covered by the franchise is transferred, or leased to another
without obtaining the requisite approval, the transfer is not binding against the Public Service Commission and in
contemplation of law the grantee continues to be responsible under the franchise in relation to the Commission and to
the public.
DISPOSITION: The decision appealed from is reversed. The defendant Marcelino Ignacio is to pay the plaintiffs the sum
of P31,000 as damages, with costs.
CONCURRING AND DISSENTING OPINION:
J. Reyes: concurs in the result, but disagrees that the sale by a public utility of any of its property without the approval
of the Public Service Commission is binding between the parties though not effective against the public. This is a
misconstruction of section 16 of the Public Service Law.
PEREZ vs. GUTIERREZ
September 28, 1973 | Castro, J. | Approval of Sale and Mortgages of Public Utility Assets or Equity | Facinal
PETITIONER: FE PEREZ
RESPONDENTS: JOSEFINA GUTIERREZ, defendant third-party plaintiff-appellee, PANFILO ALAJAR, third party
defendant-appellee
SUMMARY: Perez filed a complaint for breach of contract of carriage against Gutierrez, the registered owner of the
jeepney that she was riding and that got into an accident resulting to her hospitalization. TC decided in Perez’s favor
but held Alajar, the purchasor of the jeepney, instead of Gutierrez, liable to Perez for hospitalization fee and damages.
Perez appealed and argued that it should be Gutierrez that should be held liable to her. SC held that it is Gutierrez,
the registered owner of the jeepney, that should be liable to Perez for the injuries that she had suffered from the
negligence of the driver, the vehicle had already been transferred to Alajar. Alajar as purchasor, is nevertheless liable
to Gutierrez for the amount that she will pay to Perez.
DOCTRINE: The registered owner of a common carrier is answerable to the public for negligence resulting in injuries to
its passengers or third persons, even though the vehicle had already been transferred to another. Transferee is,
nonetheless, liable to the registered owner of the vehicle for the damages caused to passengers.
FACTS:
1. Fe Perez filed a complaint against Josefina Gutierrez for breach of contract of carriage. Perez, together with 9
co-teachers, was a passenger of an AC jeepney that met with an accident due to the reckless negligence of
its driver. Due to said accident Perez was injured and hospitalized. The jeepney was registered under the
name of Gutierrez.
2. Gutierrez averred in her answer that the person liable should be Panfilo Alajar, the actual owner of the jeep by
purchase. She filed a third party complaint against Alajar. Attached to said complaint was the following deed
of sale:
a. That it is mutually agreed by the herein vendor and vendee that the TITLE to the aforementioned
vehicle shall remain with the VENDOR, pending approval of the herein SALE by the Public Service
Commission, said motor vehicle being registered as a public utility auto-calesa under "AC"
denomination; …
b. That the vendee herein, by these presents, do [sic] hereby binds himself and do [sic] hereby
assume, [sic] responsibility for all actions, claims, demands, and rights of action, and whatever kind
and nature, that may hereafter develop as a consequence of or in the course of operation of the
aforementioned vehicle; ...
3. Alajar disclaimed responsibility for the accident, alleging that
a. The deed of sale was null and void for not having been registered with he Public Service
Commission despite his repeated demands to do so
b. Jeepney remained in control of Gutierrez who (together with her lawyer-husband) had been collecting
rentals from him for the use of said vehicle; and
c. By express agreement, title to the jeepney remained with Gutierrez pending approval of the sale by
the PSC.
4. TC found the jeepney driver guilty of reckless imprudence and found that Alajar owned and operated the auto
calesa (jeepney) and in fact, after the accident, even assumed responsibility for the payment of the hospital
bills of Perez. The TC ordered Panfilo Alajar to pay Perez damages and hospital expenses.
5. Perez appealed, arguing that it should be Gutierrez, not Panfilo, that should be liable to her for payment of
damages. She argues that the registered owner of a motor vehicle should be the one held liable for damages
resulting from breach of contract of carriage by a common carrier.
ISSUE: Whether the party liable to the injured passenger for damages resulting from breach of contract of carriage is
the registered owner or the transferee. REGISTERED OWNER
RULING:
Registered owner of common carrier liable for damages resulting from breach of contract of carriage
● The law (Sec. 20 [g], Public Service Act) requires the approval of the Public Service Commission in order that
a franchise, or any privileges pertaining thereto, may be sold or leased without infringing the certificate
issued to the grantee.
● Reason: Since a franchise is personal in nature, any transfer or lease thereof should be submitted for
approval of the Public Service Commission, so that the latter may take proper safeguards to protect the
interest of the public.
● If the property covered by the franchise is transferred or leased to another without obtaining the requisite
approval, the transfer is not binding on the Public Service Commission and, in contemplation of law, the
grantee continues to be responsible under the franchise in relation to the Commission and to the public for
the consequences incident to the operation of the vehicle, one of them being the collision under
consideration.
The registered owner of a common carrier is answerable to the public for negligence resulting in injuries to its passengers
or third persons, even though the vehicle had already been transferred to another
● This doctrine is based upon the principle that in dealing with vehicles registered under the Public Service
Law, the public has the right to assume or presume that the registered owner is the actual owner thereof.
● It would be difficult for the public to enforce the actions that they may have for injuries caused to them by the
vehicles being negligently operated if the public should be required to prove who the actual owner is. How
would the public or third persons know against whom to enforce their rights in case of subsequent transfers
of the vehicles?
Transferee is, nonetheless, liable to the registered owner of the vehicle for the damages caused to passengers
● Tamayo vs. Aquino: Court described the nature of the liability of the actual transferee of a vehicle the
negligent operation of which gives rise to injuries to its passengers “x x x As Tamayo is the registered owner
of the truck, his responsibility to the public or to any passenger riding in the vehicle or truck must be direct, x
x x But as the transferee, who operated the vehicle when the passenger died, is the one directly responsible
for the accident and death, he should in turn be made responsible to the registered owner for what the latter
may have been adjudged to pay.
TC erred in holding Alajar, rather than Gutierrez, as the one directly liable to Perez. TC also failed to hold the driver
(Leopoldo Cordero), solidarily liable with Gutierrez in accordance with Article 2184 in re Article 2180 of the Civil Code.
FALLO: Judgment MODIFIED. Gutierrez and Cordero adjudged solidarily liable to Perez. Alajar answerable to Gutierrez
for amount payable by Gutierrez to Perez.
ZAMBOANGA TRANSPORTATION CO. v. PUBLIC UTILITY COMMISSION
April 1, 1927 | Villa-Real, J. | Approval of Sale and Mortgages | Albertson Otchengco
PETITIONER: Zamboanga Transportation Co. v.
RESPONDENTS: The Public Utility Commission
SUMMARY: Petitioner Zamboanga Transportation Co. bought trucks from Bachrach Motor Co. Inc. Petitioner
Zamboanga used the trucks as security in the form of a chattel mortgage. Petitioner failed to pay and the trucks were
subsequently sold to Bachrach by virtue of foreclosure of the chattel mortgage. Respondent Auxiliary Commissioner of
Public Utilities Manuel Del Rosario approved the chattel mortgage and the sale. Zamboanga now asserts that the PUC
do not have the power to make such an approval, citing Act. No. 3108 which prohibited a public utility from mortgaging
its property, franchises, or rights without first obtaining the approval of the Public Utility Commission, and provides
that any mortgage or lien created, without such approval, shall be null and void. The Court disagreed, going into the
intention of the law and said that:
DOCTRINE: The approval required by Act NO. 3108 for the validity and efficacy of the incumbrance may be given by
the Public Utility Commission either before or after the creation of the lien.
FACTS:
1. Petitioner Zamboanga Transportation Co. comes before the Supreme Court seeking to reverse the decision of
the Auxiliary Commissioner of Public Utilities, Hon. Manuel V. Del Rosario, who approved a chattel mortgage executed
by petitioner Zamboanga in favor of Bachrach Motor Co., Inc., and the sale to Bachrach of the trucks by virtue of
foreclosure of the chattel mortgage.
2. Petitioner Zamboanga makes eleven assignments of error but they were not listed down and the Court said
that there was only one issue in this case.
ISSUES/HELD: Whether or not the Public Utility Commission had the power to approve the chattel mortgage in question
and the sale, by virtue of its foreclosure, of the mortgaged property? Yes. The approval required by Act NO. 3108 for
the validity and efficacy of the incumbrance may be given by the Public Utility Commission either before or after the
creation of the lien.
RATIO
1. The Court first cited Section 16 of Act No. 3108 which prohibits a public utility from mortgaging its
properties, franchises or rights, or any part thereof, without first obtaining the approval of the Public Utility
Commission, and provides that any mortgage or lien created without such approval shall be null and void.
2. The Court then discussed the intention of the law.
- Inasmuch as. a public utility has for its object public service in general, the law, in order to prevent the public
from being unjustly exploited, requires that every enterprise of such nature, before commencing operations, shall
obtain a certificate of public convenience from the Public Utility Commission.
- As a mortgage or a lien on the property of a public utility may prejudice the public interests, the law also
requires that before public utilities mortgage their properties they must obtain the necessary approval of the Public
Utility Commission for the purpose of determining if the mortgage is injurious or beneficial to the public interests.
3. The Court said that as the above cited reasons are the purpose of the law, then approval may be given
before or after the creation of the lien, since without said approval said lien cannot have the desired effect, being null
and void.
4. Applying this reasoning in the case at bar, the Court noted the following:
- It was more convenient and beneficial to the public interests for petitioner Zamboanga to execute the chattel
mortgage in favor of Bachrach to prevent the foreclosure of the original mortgage, in view of the difficulties which
Zamboanga encountered in complying with the promises made by Zamboanga in the payment of the price of the trucks
which it had purchased from Bachrach on credit and which it mortgaged to Bachrach.
- Court noted that while it was incumbent upon petitioner Zamboanga to petition the PUC to authorize the
mortgage, or if already executed, to secure its approval, it failed to do so, and hence, Bachrach requested the
approval in order to protect its interests.
- The fact that the law imposes upon the Zamboanga Transportation Co., Inc., the duty to request such approval,
does not deprive the Bachrach Motor Co., Inc., as mortgagee, of the right to request such approval when the
mortgagor has been negligent in complying with its duty or did not want to comply with it for reasons prejudicial to the
good name of the company and its directors.
5. Other notes in case sir asks: The approval of the Public Utility Commission required by law before the
execution of a mortgage on the property of a public utility or the sale thereof, has no more effect than an authorization
to mortgage or sell and does not affect the essential formalities of a contract, but its efficacy. The Public Utility
Commission’s approval gives effect to the mortgage or sale of the properties of a public utility which complies with all
of the essential-requisites prescribed by law, but cannot give validity or efficacy to a contract of that nature which is
not executed with all the intrinsic and extrinsic formalities required by law.
6. Other notes in case sir asks: In regard to the approval of the sale of the mortgaged property by virtue of the
foreclosure of the mortgage, it may be considered superfluous and not prejudicial, because the validity of said sale
depends upon the intrinsic contractual validity of the mortgage, the approval or disapproval of which is not important.
DISPOSITION: petition denied. Hon. Manuel V. del Rosario, therefore, did not commit an error in approving the
mortgage referred to herein, believing it to be convenient and not prejudicial to the public interests.
Section 16, Act No. 318 states:
"SEC. 16. No public utility as herein defined shall:
"(h) Without the approval of the Public Utility Commission first had, sell, alienate, mortgage, encumber, or lease its
property franchises, privileges or rights, or any part thereof; nor merge or consolidate its property, franchises,
privileges or rights, or any part thereof, with that of any other public utility as herein defined. The approval herein
required shall be given, after notice to the public and after hearing the persons interested at a public hearing, if it be
shown that there are just and reasonable grounds for making the sale, alienation, mortgage, or encumbrance for
liabilities of more than one year maturity, lease, merger, or consolidation to be approved, and that the same are not
detrimental to the public interest, and in case of a sale, the date on which the same is to be consummated shall be
fixed in the order of approval: Provided, however, That the sale, alienation, mortgage or encumbrance, and lease of
the property of public utilities which, on account of the nature and conditions of their business, are, in the judgment of
the Commission, of little importance to the public interest, shall be exempt from the requisite of the approval of the
Commission; but the public utilities shall in every case give notice of these transactions to the Commission. Any sale,
alienation, mortgage or encumbrance, lease, fusion or consolidation made without the approval herein required shall
be null and void: Provided, further, That nothing herein contained shall be construed to prevent the sale, alienation, or
lease by any public utility of any of its property in the ordinary course of its business."
Y Transit Co., Inc. vs. NLRC
January 27, 1994 | ROMERO, J . | Approval of Sale and Mortgages of Public Utility Assets or Equity
1
E.g.: (1) Statistics from the Metro Manila Transportation and Traffic Situation Study of 1996,1 the Environmental Management
Bureau (EMB) of the National Capital Region, a study of the Asian Development Bank, the Manila Observatory4 and the Department
of Environment and Natural Resources5 (DENR) on the high growth and low turnover in vehicle ownership in the Philippines,
including diesel-powered vehicles, two-stroke engine powered motorcycles and their concomitant emission of air pollutants; (2)
University of the Philippines' studies in 1990-91 and 1994 showing that vehicular emissions in Metro Manila have resulted to the
prevalence of chronic obstructive pulmonary diseases (COPD); that pulmonary tuberculosis is highest among jeepney drivers; and
there is a 4.8 to 27.5 percent prevalence of respiratory symptoms among school children and 15.8 to 40.6 percent among child
vendors. The studies also revealed that the children in Metro Manila showed more compromised pulmonary function than their rural
counterparts. Petitioners infer that these are mostly due to the emissions of PUVs.
diesel endanger the environment and the people, is tantamount to neglect in the performance of a duty which the law
enjoins. Lastly, petitioners aver that other than the writ applied for, they have no other plain, speedy and adequate
remedy in the ordinary course of law. Petitioners insist that the writ in fact should be issued pursuant to the very same
Section 3, Rule 65 of the Revised Rules of Court that the Solicitor General invokes.
ISSUES/HELD: (TOPIC) Should mandamus issue against respondents to compel PUVs to use CNG as alternative fuel?
→ No.
RULES:
1. Mandamus Requisites under Section 3, Rule 65: (1) against any tribunal which unlawfully neglects the
performance of an act which the law specifically enjoins as a duty; (2) in case any corporation, board or person
unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust, or station;
and (3) in case any tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a
right or office to which such other is legally entitled; and there is no other plain, speedy, and adequate remedy in the
ordinary course of law.
2. Clean Air Act, SEC 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission standards
for motor vehicles set pursuant to and as provided in this Act xxx b) The Department [DENR] in collaboration with the
DOTC, DTI and LGUs, shall develop an action plan for the control and management of air pollution from motor vehicles
consistent with the Integrated Air Quality Framework xxx
3. Executive Order No. 290 or Implementing the Natural Gas Vehicle Program for Public Transport (NGVPPT). The
program recognized, among others, natural gas as a clean burning alternative fuel for vehicle which has the potential
to produce substantially lower pollutants; and the Malampaya Gas-to-Power Project as representing the beginning of
the natural gas industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites as one of its objectives, the
use of CNG as a clean alternative fuel for transport. Furthermore, one of the components of the program is the
development of CNG refueling stations and all related facilities in strategic locations in the country to serve the needs
of CNG-powered PUVs. Section 3 of E.O. No. 290, consistent with E.O. No. 66, series of 2002, designated the DOE as
the lead agency (a) in developing the natural gas industry of the country with the DENR, through the EMB and (b) in
formulating emission standards for CNG. Most significantly, par. 4.5, Section 4 tasks the DOTC, working with the DOE,
to develop an implementation plan for "a gradual shift to CNG fuel utilization in PUVs and promote NGVs [natural gas
vehicles] in Metro Manila and Luzon through the issuance of directives/orders providing preferential franchises in
present day major routes and exclusive franchises to NGVs in newly opened routes…" A thorough reading of the
executive order assures us that implementation for a cleaner environment is being addressed.
RATIO
1. [SEE RULE 2] When PUVs are concerned, the responsibility of implementing the policy falls on respondent
DOTC. It is the DENR that is tasked to set the emission standards for fuel use and the task of developing an action
plan. As far as motor vehicles are concerned, it devolves upon the DOTC and the line agency whose mandate is to
oversee that motor vehicles prepare an action plan and implement the emission standards for motor vehicles, namely
the LTFRB.
2. [SEE RULE 3] To a certain extent, the instant petition had been mooted by the issuance of E.O. No. 290.
3. The plain, speedy and adequate remedy herein sought by petitioners, i.e., a writ of mandamus commanding
the respondents to require PUVs to use CNG, is unavailing. Mandamus is available only to compel the doing of an act
specifically enjoined by law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to
order owners of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii),
Section 4 "to grant preferential and exclusive Certificates of Public Convenience (CPC) or franchises to operators of
NGVs based on the results of the DOTC surveys."
4. Further, mandamus will not generally lie from one branch of government to a coordinate branch, for the
obvious reason that neither is inferior to the other.The need for future changes in both legislation and its
implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally
infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the
coequal branches to address by themselves the environmental problems raised in this petition.
5. [SEE DOCTRINE]
DISPOSITION: DISMISSED for lack of merit
TAXICAB OPERATORS OF METRO MANILA, INC. v. BOARD OF TRANSPORTATION
30 Sept 1982 | Melencio-Herrera, J. | Regulation of Public Utilities | Martinez
PETITIONER: Taxicab Operators of Metro Manila, Inc., Felicisimo Cabigao, Ace Transportation Corporation
RESPONDENTS: The Board of Transportation and the Director of the Bureau of Land Transportation
SUMMARY: The Board of Transportation issued circulars phasing out all taxicabs aged 6 years and older. This was
opposed by taxicab operators, arguing that these circulars are violative of their constitutional rights to procedural and
substantive due process, protection against arbitrary and unreasonable classification and standard, and equal
protection of the law. The Court dismissed the petition and upheld the validity of the circulars.
DOCTRINE: The State, in the exercise of its police power, can prescribe regulations to promote the health, morals,
peace, good order, safety, and general welfare of the people. It can prohibit all things hurtful to comfort, safety, and
welfare of society. It may also regulate property rights. The necessities imposed by public welfare may justify the
exercise of governmental authority to regulate even if thereby certain groups may plausibly assert that their interests
are disregarded.
FACTS:
1. Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic corporation composed of taxicab operators who
are grantees of Certificates of Public Convenience to operate taxicabs within the City of Manila and to any other place
in Luzon accessible to vehicular traffic. Ace Transportation and Cabigao are members of TOMMI.
2. In 1997, the Board of Transportation issued Memorandum Circular No. 77-42:
a. Subject: Phasing out and Replacement of Old and Dilapidated Taxis
b. No car beyond 6 years shall be operated as taxi.
3. Pursuant to BOT Circular, the Director of Bureau of Land Transportation issued Implementing Circular No. 52:
a. Taxi units with year models over 6 years old are now banned from operating as public utilities in Metro Manila
– considered as automatically dropped as public utilities and therefore, do not require any further dropping order from
the BOT
b. Taxi units within NCR shall be refused registration.
4. Petitioners filed with the BOT a Petition seeking to nullify MC No. 77-42 or to stop its implementation: to allow
the registration and operation in 1981 and subsequent years of taxicabs of model 1974 as well as those of earlier
models which were phased out
a. Proviso: at the time of registration, they are roadworthy and fit for the operation.
5. Petitioners filed before the BOT Manifestations and Urgent Motions for an early hearing of their case to
enable them, in case of denial, to avail of whatever remedy they may have under the law for the protection of their
interests before their 1975 model cabs are phased out on Jan 1, 1982. Petitioners, through its President, allegedly
made follow-ups of the case but was informed that the records of the case could not be located.
ISSUES/HELD:
1. W/N the implementation and enforcement of the assailed memorandum circulars promulgated by BOT and BLT
violate the petitioners’ constitutional rights to procedural and substantive due process → No.
2. W/N the implementation and enforcement of the assailed memorandum circulars violate the petitioners’
constitutional right to protection against arbitrary and unreasonable classification and standard → No.
3. W/N the implementation and enforcement of the assailed memorandum circulars violate the petitioners’
constitutional right to equal protection of the law → No.
RATIO
1. The BOT need not first summon taxicab operators to a conference or public hearing before issuing circulars phasing
out more than 6-year old taxicabs.
● Presidential Decree No. 101: grants to the Board of Transportation the power to fix just and reasonable
standards, classification, regulations, practices, measurements, or service to be furnished, imposed, observed, and
followed by operators of public utility motor vehicles
● Petitioners: In support of their submission that they were denied procedural due process, they contend that
they were not called upon to submit their position papers, nor were they ever summoned to attend any conference
prior to the issuance of the questioned BOT circular.
● SC: The leeway accorded the Board in PD 101 gives it a wide range of choice in gathering necessary
information or data in the formulation of any policy, plan, or program. It is not mandatory that it should first call a
conference or require the submission of position papers or other documents from operators or persons who may be
affected, this being only one of the options open to the Board, which is given wide discretionary authority.
● Petitioners cannot justifiably claim therefore that they were deprived of procedural due process. Neither can
they state with certainty that public respondents had not availed of other sources of inquiry prior to issuing the
challenged circulars. Operators of public conveyances are not the only primary sources of the data and information
that may be desired by the BOT.
● Previous notice and hearing as elements of due process are constitutionally required for the protection of life
or vested property rights, as well as of liberty, when its limitation or loss takes place in consequence of a judicial or
quasi-judicial proceeding, generally dependent upon a past act or event which has to be established or ascertained.
However, these are not essential to the validity of general rules or regulations promulgated to govern future conduct of a
class or persons or enterprises, unless the law provides otherwise. (Central Bank v. Hon. Cloribel and Banco Filipino)
2. Fixing by BOT of the lifetime ceiling of 6 years to taxicab is not unreasonable or arbitrary.
● Petitioners: Fixing the ceiling at 6 years is arbitrary and oppressive because the roadworthiness of taxicabs
depends upon their kind of maintenance and the use to which they are subjected, therefore, their actual physical
condition should be taken into consideration at the time of registration.
● SC: It is impractical to subject every taxicab to constant and recurring evaluation, not to speak of the fact
that it can open the door to the adoption of multiple standards, possible collusion, and even graft and corruption.
● A reasonable standard must be adopted to apply to all vehicles affected uniformly, fairly, and justly. The
span of 6 years supplies that reasonable standard. The product of experience shows that by that time taxis have fully
depreciated, their cost recovered, and a fair return on investment obtained. They are also generally dilapidated and
no longer fit for safe and comfortable service to the public especially considering that they are in continuous operation
practically 24 hours everyday in 3 shift of 8 hours per shift. With that standard of reasonableness and absence of
arbitrariness, the requirement of due process has been met.
3. Fixing lifetime of taxicabs to 6 years in Metro Mania due to heavier traffic, safety, and comfort of riding public is based
on reasonable standards. Non-applicability of phase-out rule on taxis to other vehicles is not violative of equal protection
clause.
● Petitioners: The circular violates their right to equal protection of the law because the same is being
enforced in Metro Manila only and is directed solely towards the taxi industry.
● SC: Implementation of the circulars in Cebu City is already being effected, with the BOT in the process of
conducting studies regarding the operation of taxicabs in other cities.
● The Board’s reason for enforcing the circular initially in Metro Manila is that taxicabs in this city, compared to
those of other places, are subjected to heavier traffic pressure and more constant use. Considering that traffic
conditions are not the same in every city, a substantial distinction exists so that infringement of the equal protection
clause can hardly be successfully claimed.
● The overriding consideration is the safety and comfort of the riding public from the dangers posed by old and
dilapidated taxis.
● The State, in the exercise of its police power, can prescribe regulations to promote the health, morals, peace,
good order, safety, and general welfare of the people. It can prohibit all things hurtful to comfort, safety, and welfare of
society. It may also regulate property rights.
● The necessities imposed by public welfare may justify the exercise of governmental authority to regulate even if
thereby certain groups may plausibly assert that their interests are disregarded. (Chief Justice Enrique Fernando)
● Insofar as the non-application of the circulars to other transportation services is concerned: the equal
protection clause does not imply that the same treatment be accorded all and sundry. It applies to things or persons
identically or similarly situated. It permits of classification of the object or subject of the law, provided classification is
reasonable or based on substantial distinction, which make for real differences, and that it must apply equally to each
member of the class.
● What is required under the equal protection clause is the uniform operation by legal means so that all
persons under identical or similar circumstance would be accorded the same treatment both in privilege conferred and
the liabilities imposed. The challenged circulars satisfy the foregoing criteria.
DISPOSITION: DISMISSED for lack of merit. The assailed Circulars do not suffer any constitutional infirmity.
Meralco vs ERB (Dale)
March 17, 2006 | Garcia, J. | Regulation of Public Utilities | Tudtud
PETITIONER: Manila Electric Company (MERALCO)
RESPONDENTS: Energy Regulatory Board (ERB); Edgar L. Ti
SUMMARY: Edgar Ti filed a complained before the ERB against MERALCO, claiming that MERALCO disconnected the
electricity in his establishment and took his electric meters. MERALCO claimed that Ti had tampered with said electric
meters which warranted the immediate disconnection, filing a separate criminal charge. More importantly (to the
class), Meralco claimed that ERB did not have the jurisdiction to adjudicate over the case and grant provisional relief,
the jurisdiction over the same lying with the regular courts. The SC ruled that the based on the legislative history and
the letter of the Law creating the PSC, which was carried over to the ERB through subsequent passing on of dutie from
agency to agency, the ERB had jurisdiction.
DOCTRINE: The ERB, by force of the aforecited Sections 13 and 17(a) of C.A. No 146, as amended, in relation to
Section 14 of E.O. No. 172, has jurisdiction, control and supervision over all public services, their franchises and
properties, with power to investigate any matter respecting its jurisdiction and to require any public service to furnish
safe, adequate and proper service as the public interest may require.
FACTS:
1. October 18, 1999 - Respondent Edgar L. Ti, doing business under the name and style ELT Enterprise, filed a
verified complaint before the ERB against MERALCO
a. MERALCO allegedly disconnected partially the electric service in his business establishment and seized 3 of
his electric meters on mere suspicion of meter tampering
b. Notice of disconnection was served at night, while the actual disconnection was not done in the presence of
the owner of ELT Enterprise or his representative. Said disconnection caused him damage.
2. ERB, by way of provisional relief, ordered the desired reconnection of electric service and, at the same,
directed MERALCO to submit its comment on the complaint. MERALCO moved for a reconsideration of the
aforementioned provisional reconnection order, alleging that an inspection conducted by its service inspectors
accompanied by elements of the Philippine National Police found Ti to have tampered with the meters by manipulating
the dial pointers, thus warranting the immediate disconnection.
a. MERALCO also filed a criminal complaint against Ti for violation of R. A. No. 7832, which is pending
resolution
b. MERALCO filed its comment to Ti's complaint in ERB Case No. 99-67 and there moved for the dismissal
thereof on the ground of lack of jurisdiction.
3. ERB denied MERALCO and its motion for reconsideration; ERB had jurisdiction for the restoration of the
partial shutdown of the electric service to Ti’s building.
4. MERALCO appealed, CA rejected the appeal and affirmed the decision. The agency charged with regulatory
and adjudicatory functions covering the energy sector is the Energy Regulatory Board created under E.O. No. 172
dated May 8, 1987. The nucleus of the ERB was the Board of Energy established by P.D. No. 1206 dated October 6,
1977, which had the power to regulate and fix power rates to be charged by electric companies and to issue
certificates of public convenience for the operation of electric power utilities and services
ISSUES/HELD:
1. W/N the ERB had jurisdiction to order the reconnection of electric service in cases arising from alleged violation of
R. A. No. 7832? YES.
RATIO
1. Petitioner MERALCO, being an electric service provider, is under the regulatory jurisdiction and supervision of the ERB.
● MERALCO: No provision in Executive Order (E.O.) No. 172, series of 1987, the ERB charter, granting that
agency adjudicative jurisdiction over violations of R. A. No. 7832, let alone order the restoration of a disconnected
electric service. Such lies with regular Courts.
● Court discussed the legislative history of the regulating agencies from the BRR to the BPUC; to the PSC; to
the BOPW; and the powers and function relative to power utilities, including its authority to grant provisional relief was
finally granted to the BOE which would thus be reconstituted into the ERB under the term of Pres. Cory Aquino as well
as consolidating in and entrusting on the ERB "all the regulatory and adjudicatory functions covering the energy sector.
● Section 14 of E.O. No. 172: (T)he applicable provisions of [C.A.] No. 146, as amended, otherwise known as
the 'Public Service Act'; xxx and [P.D.] No. 1206, as amended, creating the Department of Energy, shall continue to
have full force and effect, except insofar as inconsistent with this Order.
● As such, certain provisions of the PSA (C.A. No. 146, as amended) have been carried over in the executive
order, i.e., E.O. No. 172, creating the ERB. Foremost of these relate to the transfer to the ERB of the jurisdiction and
control heretofore pertaining to and exercised by the PSC over electric, light and power corporations owned, operated
and/or managed for public use or service.2 And as Section 17(a) of C.A. No. 146, as amended, supra, provides, this
jurisdiction and control includes the power to investigate any matter concerning any public service and to require any
public utility or public service corporation to furnish adequate and proper service.
● Needless to stress, petitioner MERALCO, being an electric service provider, is under the regulatory
jurisdiction and supervision of the ERB.
● ERB can properly take cognizance of respondent Ti's complaint for reconnection of electric service in ERB
Case No. 99-67, touching as it does on the obligation of a public utility to supply adequate electricity and proper
service to the consuming public. It bears to reiterate that the ERB, by force of the aforecited Sections 13 and 17(a) of
C.A. No 146, as amended, in relation to Section 14 of E.O. No. 172, has jurisdiction, control and supervision over all public
services, their franchises and properties, with power to investigate any matter respecting its jurisdiction and to require
any public service to furnish safe, adequate and proper service as the public interest may require.
● Respondent Ti's complaint prayed for no other relief than the immediate restoration in his business
establishment of electric light and power service, and as such ERB had jurisdiction.
● The criminal aspect of the alleged violation of R. A. No. 7832 is of course a different matter. A circumspect look
at E.O. No. 172 yields no indication that the ERB's jurisdiction extends to adjudication of criminal complaints for
infringement of R. A. No. 7832. There is absolutely no conflict between the exercise by the ERB of its power to
entertain a complaint for reconnection of electric service and the regular court's jurisdiction to entertain and act on a
criminal action against private respondent Ti for violation of R. A. No. 7832. The reason therefor is not hard to discern:
a criminal action affects the social order while an action for reconnection of electric service pertains to the public utility's
obligation to provide public service which partakes of the nature of a civil action and affects private rights.
DISPOSITION:
Instant petition is DENIED and the assailed decision of the Court of Appeals dated September 22, 2000 is AFFIRMED.
2
SEC. 13., PSA: Except as otherwise provided herein, the Commission shall have general supervision and regulation of, jurisdiction and control over, all
public utilities, and also over their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying
out the provisions of this Act, and in the exercise of its authority it shall have the necessary powers and the aid of the public force xxx xxx xxx.
(Emphasis supplied)
SEC. 14, PSA: defines the term "public service" or "public utility" as including "every individual, copartnership, association, corporation or joint-stock
company, . . . that now or hereafter may own, operate, manage or control within the Philippines, for hire or compensation, any common carrier, xxx xxx,
electric light, heat, power, xxx xxx, when owned, operated and managed for public use or service within the Philippines xxx xxx." Under the succeeding
Section 17(a), the PSC has the power even without prior hearing'
cra lawlibrary
Globe Telecom Inc. v. NTC
July 26, 2004 | Tinga, J. | Forms of Regulation | Albertson Otchengco
PETITIONER: Globe Telecom, Inc.
RESPONDENTS: National Telecommunications Commission, Commissioner Joseph Santiago, Deputy Commissioners
Umali and Dacanay, Smart Communications
SUMMARY: Smart filed a complaint with public respondent NTC, praying that NTC order the immediate interconnection
of Smart’s and Globe’s Global System for Mobile Communication (GSM) networks, particularly their SMS or texting
services. Globe filed an MTD. NTC issued the assailed order, holding that SMS falls squarely within the definition of
"value-added service" or "enhanced-service" given in NTC Memorandum Circular No. 8-9-95 and that both Smart
and Globe have been providing SMS without authority from it, in violation of Section 420 (f) of MC No. 8-9-95 which
requires PTEs intending to provide value-added services (VAS) to secure prior approval from NTC through an
administrative process. CA affirmed the decision in toto.
Globe now assails the CA decision insofar as it directed the parties to secure the requisite authority to provide SMS
within thirty (30) days, subject to the payment of fine in the amount of two hundred pesos (P200.00) "from the date of
violation and for every day during which such violation continues.” There are three issues before the Court: 1. Whether
NTC may legally require Globe to secure NTC approval before it continues providing SMS. 2. Whether SMS is a VAS
under the Public Telecommunications Act (PTA), or special feature under NTC MC No. 14-11-97. 3. Whether NTC acted
with due process in levying the fine against Globe.
The Court made an extensive analysis of all the pertinent rules and made the following conclusions: (i) there is no
legal basis under the PTA or the memorandum circulars promulgated by the NTC to denominate SMS as VAS, and any
subsequent determination by the NTC on whether SMS is VAS should be made with proper regard for due process and
in conformity with the PTA; (ii) the assailed Order violates due process for failure to sufficiently explain the reason for
the decision rendered, for being unsupported by substantial evidence, and for imputing violation to, and issuing a
corresponding fine on, Globe despite the absence of due notice and hearing which would have afforded Globe the right
to present evidence on its behalf.
(Sorry for the long digest. I included everything including the extensive discussion of the pertinent laws plus dami copy
paste ng laws)
FACTS:
a. June 4, 1999, Smart filed a Complaint with public respondent NTC, praying that NTC order the immediate
interconnection of Smart's and Globe's Global System for Mobile Communication (GSM) networks, particularly their
respective Short Message Services (SMS) or texting services. Smart alleged that Globe, with evident bad faith and
malice, refused to grant Smart's request for the interconnection of SMS.
b. 7 June 1999, NTC issued a Show Cause Order against Globe.
c. Globe filed its Answer with MTD on 7 June 1999, arguing that the Complaint was premature, Smart's failure to
comply with the conditions precedent required in Section 6 of NTC Memorandum Circular 9-7-93, and its omission of
the mandatory Certification of Non-Forum Shopping. Smart responded that it had already submitted the voluminous
documents asked by Globe.
d. On 19 July 1999, NTC issued the Order which is the subject of the present petition. In the order:
a. NTC held that Smart and Globe were equally blameworthy for their lack of cooperation and held that since SMS falls
squarely within the definition of "value-added service" or "enhanced-service" given in NTC Memorandum Circular
No. 8-9-95 (MC No. 8-9-95) the implementation of SMS interconnection is mandatory pursuant to Executive Order
(E.O.) No. 59.
b. NTC also declared that both Smart and Globe have been providing SMS without authority from it, in violation of
Section 420 (f) of MC No. 8-9-95 which requires PTEs intending to provide value-added services (VAS) to secure prior
approval from NTC through an administrative process.
c. NTC directed the parties to secure the requisite authority to provide SMS within thirty (30) days, subject to the
payment of fine in the amount of two hundred pesos (P200.00) "from the date of violation and for every day during
which such violation continues."
e. Globe filed with the CA a petition for Certiorari. CA issued a TRO, but it subsequently affirmed in toto the NTC
Order. N ot sure if this is important but in case sir asks: On the same day, Globe and Smart voluntarily agreed to
interconnect their respective SMS systems, and the interconnection was effected at midnight of that day.
f. Nevertheless Globe filed MR insofar as the portion of the CA decision upholding NTC's finding that Globe
lacked the authority to provide SMS and its imposition of a fine. Motion denied.
g. Globe now comes before the Court with the following arguments:
i. CA erred in holding that the NTC has the power under Section 17 of the Public Service Law to subject
Globe to an administrative sanction and a fine without prior notice and hearing in violation of the due process
requirements
ii. Due process was denied Globe because the hearings actually conducted dwelt on different issues
iii. Globe also called the attention of the Court to the earlier decision of NTC pertaining to the application
of Isla Communications Co., Inc. ("Islacom") to provide SMS, allegedly holding that SMS is a deregulated special
feature of the telephone network and therefore does not require the prior approval of NTC. Globe alleged that its
departure from its ruling in the Islacom case constitutes a denial of equal protection of the law.
h. Stand of Smart:
i. Smart has deviated from its original position. It no longer prays that the Court affirm the assailed
Decision and Order. Instead, Smart now argues that SMS is not VAS and that NTC may not legally require either Smart
or Globe to secure prior approval before providing SMS. Smart has also chosen not to make any submission on
Globe's claim of due process violations.
ISSUES/HELD:
i. Whether NTC may legally require Globe to secure NTC approval before it continues providing SMS? No.
ii. Whether SMS is a VAS under the Public Telecommunications Act (PTA), or special feature under NTC
MC No. 14-11-97? Unclear at this point. Hence the answer above is No.
iii. Whether NTC acted with due process in levying the fine against Globe? No. There was a denial of due
process.
RATIO:
For Issue 1 and 2: Court held that there is no legal basis under the PTA or the memorandum circulars promulgated by the
NTC to denominate SMS as VAS, and hence, any subsequent determination by the NTC on whether SMS is VAS should be
made with proper regard for due process and in conformity with the PTA. In this case, there was a violation of due
process.
Stand of Globe: exempted from prior approval because of deregulation and from NTC Memorandum Circular No.
14-11-97 ("MC No. 14-11-97").
Stand of NTC: invokes the NTC Implementing Rules of the PTA (MC No. 8-9-95) to justify its claim that Globe and
Smart need to secure prior authority from the NTC before offering SMS.
In line with this conflicting arguments, the Court needed to look at both laws.
A. Evaluation of the PTA, which is the statutory basis behind MC No. 8-9-95.
i. The PTA has not strictly adopted laissez-faire as its underlying philosophy to promote the telecommunications
industry. Nevertheless, the thrust of the PTA is towards modernizing the legal framework for the telecommunications
services sector. One of the novel introductions of the PTA is the concept of a "value-added service" ("VAS").
ii. VAS is covered by Sec 11. VAS is the defined as: " an entity which relying on the transmission, switching and local
distribution facilities of the local exchange and inter-exchange operators, and overseas carriers, offers enhanced
services beyond those ordinarily provided for by such carriers."
iii. Sec 11 unequivocally requires NTC approval for the operation of a value-added service for telecommunication
entities such as Globe and PLDT: “Telecommunications entities may provide VAS, subject to the additional
requirements that: a) prior approval of the Commission is secured to ensure that such VAS offerings are not
cross-subsidized from the proceeds of their utility operations”
iv. Court noted that it was odd that neither the NTC nor the CA cited these provisions in their decisions.
v. Court made the following commentary on the law:
- The PTA has left open-ended what services are classified as "value-added," prescribing instead a general standard.
- From a reading of Sec. 11, it can be gleaned that the requirement that PTEs secure prior approval before offering
VAS is tied to a definite purpose: "to ensure that such VAS offerings are not cross-subsidized from the proceeds of
their utility operations."
vi. The Court made the following conclusions regarding this law:
- The qualification highlights the fact that the legal rationale for regulation of VAS is severely limited.
- Ultimately, the regulatory attitude of the State towards VAS offerings by PTEs is to treat its provisioning as a
"business decision" subject to the discretion of the offeror, so long as such services do not interfere with mandatory
public service requirements imposed on PTEs such as those under E.O. No. 109.
- Thus, non-PTEs are not similarly required to secure prior approval before offering VAS, as they are not
burdened by the public service requirements prescribed on PTEs.
B. Evaluation of the regulatory framework devised by NTC in dealing with VAS.
a. Court cited Sec. 420(f) of the IRR of the PTA which discusses VAS: “VALUE ADDED SERVICES (VAS): (f) PTEs
intending to provide value added services are required to secure prior approval by the Commission through an
administrative process.”
b. SC made the following commentaries on the IRR:
- Instead of expressly defining what VAS is, the Implementing Rules defines what "enhanced services" are,
namely: "a service which adds a feature or value not ordinarily provided by a public telecommunications entity such as
format, media conversion, encryption, enhanced security features, computer processing, and the like."
- Given that the PTA defines VAS as "enhanced services," the definition provided in the Implementing Rules may
likewise be applied to VAS. Still, the language of the Implementing Rules is unnecessarily confusing.
- The definition of "enhanced services" in the Implementing Rules, while more distinct than that under the PTA, is
still too sweeping.
- The use of the phrase "the like," and its implications of analogy, presumes that a whole myriad of technologies
can eventually be subsumed under the definition of "enhanced services."
c. Court then discussed MC No. 14-11-97 relied upon by Globe.
d. MC No. 14-11-97 states: “SUBJECT: EREGULATING THE PROVISION OF SPECIAL FEATURES IN THE
D
TELEPHONE NETWORK… The Commission hereby deregulates the provision of special features inherent to the
Telephone Network….. Section 1. For the purpose of this Circular, Special Feature shall refer to a feature inherent
to the telephone network which may not be ordinarily provided by a Telephone Service Provider….. The Commission
shall periodically update the list of special features in the Telephone Network which, including the charging of rates
therefor, shall be deregulated.”
e. Court made the following commentaries on MC No. 14-11-97:
- Just like VAS as defined under the PTA, "special features" are also "not ordinarily provided" by the telephone
company.
- MC No. 14-11-97 repeatedly invokes the word "deregulation," and it cannot be denied that the liberalization
ethos was introduced by the PTA. Yet, the net effect of MC No. 14-11-97 is to add to the haze beclouding the NTC's
rationale for regulation.
- The introduction of a new concept, "special feature," which is not provided for in the PTA just adds to the
confusion, especially in light of the similarities between "special features" and VAS.
- Moreover, there is no requirement that a PTE seeking to offer "special features" must secure prior approval from
the NTC.
C. After this detailed evaluation of the laws pertinent to the case, the Court reached the conclusion underlined above
(For issue 1 and 2). It said that the NTC itself is unsure whether or not SMS is a VAS, “enhanced service,” or a
“special feature.” It ruled that the legal basis invoked by NTC in claiming that SMS is VAS has not been duly
established. The fault falls squarely on NTC. With the dual classification of SMS as a special feature and a VAS and
the varying rules pertinent to each classification, NTC has unnecessarily complicated the regulatory framework to the
detriment of the industry and the consumers.
For Issue 3: The Court said that the NTC’s order violates due process for failure to sufficiently explain the reason for the
decision rendered, for being unsupported by substantial evidence, and for imputing violation to, and issuing a
corresponding fine on, Globe despite the absence of due notice and hearing which would have afforded Globe the right to
present evidence on its behalf.
The NTC violated the following cardinal rights of due process before an administrative tribunal:
i. The NTC Order is not supported by substantial evidence. NTC order states: “xxx Getting down [to] the nitty-gritty,
Globe's SMS involves the transmission of data over its CMTS which is Globe's basic service. SMS is not ordinarily
provided by a CMTS operator like Globe, and since SMS enhances Globe's CMTS, SMS fits in to a nicety [sic]
with the definition of "value-added-service" or "enhanced-service" under NTC Memorandum Circular 8 -9-95 (Rule 001,
Item).” Court ruling: no deep inquiry was made as to the nature of SMS or what its provisioning entails. The very
rationale adopted by the NTC in its Order holding that SMS is VAS is short and shoddy.
ii. Globe and Smart were denied opportunity to present evidence on the issues relating to the nature of VAS and the
prior approval. It is clear that before NTC could penalize Globe and Smart for unauthorized provision of SMS, it must
first establish that SMS is VAS. Since there was no express rule or regulation on that question, Globe and Smart
would be well within reason if they submitted evidence to establish that SMS was not VAS. Unfortunately, no such
opportunity arose and no such arguments were raised simply because Globe and Smart were not aware that the
question of their authority to provide SMS was an issue at all.
iii. The imposition of fine is void for violation of due process (no notice and hearing). Court said that the resolution of
this issue is more extensive as it requires an analysis of provisions of the Public Service Act.
a. The two pertinent provisions are: Sec. 17, Par. (a) and Sec. 21 of the Public Service Act. (Copy pasted below).
b. SC said that Sections 17 and 21 of the Public Service Act confer two distinct powers on NTC.
- Under Section 17, NTC has the power to investigate a PTE compliance with a standard, rule, regulation, order, or
other requirement imposed by law or the regulations promulgated by NTC, as well as require compliance if necessary.
By the explicit language of the provision, NTC may exercise the power without need of prior hearing.
- However, Section 17 does not include the power to impose fine in its enumeration. It is Section 21 which
adverts to the power to impose fine and in the same breath requires that the power may be exercised only after notice
and hearing.
c. Section 21 requires notice and hearing because fine is a sanction, regulatory and even punitive in character.
Indeed, the requirement is the essence of due process.
d. Applying these rules to the case at bar:
- Court is convinced that prior to the promulgation of the assailed Order Globe was never notified that its authority
to operate SMS was put in issue.
- The Court also pointed out that there is an established procedure within NTC that provides for the steps that
should be undertaken before an entity such as Globe could be subjected to a disciplinary measure.
1. Section 1, Rule 10 of the NTC Rules of Procedure provides that any action, the object of which is to subject a
holder of a certificate of public convenience or authorization, or any person operating without authority from NTC, to
any penalty or a disciplinary or other measure shall be commenced by the filing of a complaint. Further, the complaint
should state, whenever practicable, the provisions of law or regulation violated, and the acts or omissions complained
of as constituting the offense. ( Here, while a complaint was indeed filed against Globe by Smart, the lack of Globe's
authority to operate SMS was not raised in the Complaint, solely predicated as it was on Globe's refusal to
interconnect with Smart.)
2. Under the NTC Rules of Procedure, NTC is to serve a Show Cause Order on the respondent to the complaint,
containing therein a "statement of the particulars and matters concerning which the Commission is inquiring and the
reasons for such actions."
DISPOSITION: the Order effectively discriminatory and arbitrary as it is, was issued with grave abuse of discretion and
it must be set aside. NTC may not legally require Globe to secure its approval for Globe to continue providing SMS.
This does not imply though that NTC lacks authority to regulate SMS or to classify it as VAS. However, the move
should be implemented properly, through unequivocal regulations applicable to all entities that are similarly situated,
and in an even-handed manner.
PT&T v. SMART
November 9, 2016 | Jardeleza, J. | Rate-Fixing > Vis-à-vis Power to Grant Authority | Ampil
PETITIONER: Philippine Telegraph & Telephone Corp.
RESPONDENT: Smart Communications, Inc.
SUMMARY: Philippine Telegraph & Telephone Corporation (PT&T) and Smart Communications, Inc. (Smart) entered into
an Agreement for the interconnection of their telecommunication facilities. PT&T subsequently filed a complaint with
the NTC alleging that the access charges imposed by Smart were discriminatory and not in conformity with those of
other carriers. Before the parties could submit their pleadings to the NTC, Smart filed a complaint with the RTC of
Makati against PT&T. The SC held that the NTC had jurisdiction to determine the equity of the access charges in the
Agreement.
DOCTRINE: The NTC, as the regulatory agency of the State, merely exercise[s] its delegated authority to regulate the
use of telecommunications networks when it decreed interconnection. A modem and dependable communications
network rendering efficient and reasonably priced services is indispensable for accelerated economic recovery and
development. To these public and national interests, public utility companies must bow and yield.
FACTS:
1. Philippine Telegraph & Telephone Corporation (PT&T) and Smart Communications, Inc. (Smart) entered into an
Agreement dated June 23, 1997 for the interconnection of their telecommunication facilities. The parties amended the
Agreement on November 28, 2003.
2. On April 4, 2005, Smart sent a letter informing PT&T that it increased its access charge from Pl.00 to P2.00
starting April 1, 2005 in accordance with the amended Agreement. However, on September 2, 2005, PT&T sent a
letter to Smart claiming that the latter overcharged PT&T on outbound calls to Smart's Cellular Mobile Telephone
System (CMTS).
3. On September 15, 2005, PT&T filed a complaint with the NTC raising the issue that the access charges imposed by
Smart were allegedly "discriminatory and not in conformity with those of other carriers." On January 20, 2006, the NTC
ordered Smart and PT&T to attend mediation conferences. After the mediation efforts failed, the NTC directed the
parties to file their respective pleadings, after which it would consider the case submitted for resolution. But before
the parties were able to submit the pleadings, Smart filed a complaint with the RTC of Makati against PT&T on April 7,
2006.
4. The RTC issued a writ of preliminary injunction in favor of Smart, reasoning that allowing the NTC to proceed and
adjudicate access charges would violate Smart's contractual rights. It added that the· NTC has no jurisdiction to
adjudicate breaches of contract and award damages.
ISSUE/HELD:
WON the NTC has jurisdiction to determine the equity, reciprocity, and fairness of the access charges stipulated in
Smart and PT&T’s Agreement – YES
RATIO:
1. Section 18 of R.A. 7925, which regulates access charge arrangements between two public telecommunication
entities (PTEs), states:
In adopting or approving an access charge formula or revenue sharing agreement between two or more carriers x x x
the Commission shall ensure equity, reciprocity and fairness among the parties concerned. x x x the Commission shall
take into consideration the costs of the facilities needed to complete the
interconnection, the need to provide the cross-subsidy to local exchange carriers to enable them to fulfill the primary
national objective of increasing telephone density in the country and assure a rate of return on the local exchange
network investment that is at parity with those earned by other segments of the telecommunications industry x x x
2. Congress deliberately used the word "approve," in conjunction with "adopt," in describing the action that the NTC
may take. This presupposes that something has been submitted to the NTC as the approving authority, specifically
either the access charge formula or revenue-sharing agreement. Smart and PT&T's Agreement, insofar as it specifies
the access charge rates for the interconnection of their networks, falls within the coverage of the provision.
3. Therefore, the Agreement should have been submitted to the NTC for its review and approval in accordance with
Section 18. The NTC’s intervention is further justified by the fact that neither Smart nor PT&T claims that the access
charges in the Agreement have been submitted to, much less approved by, the NTC.
4. The mere fact that Smart and PT&T negotiated and executed a bilateral interconnection agreement does not take
their stipulations on access charges out of the NTC's regulatory reach. Access charges directly affect the State's goal
of making basic telecommunications services accessible to everyone at affordable rates. Smart cannot simply invoke
the freedom of contract to shield it from the intervention of the NTC, especially when the law itself sanctions the
agency's intervention.
DISPOSITION: The petition is partially granted. The writ of preliminary injunction issued by the RTC is dissolved.
Pantranco
PANTRANCO v COURT OF APPEALS
June 26, 1940 | J. Laurel | Due process requirements
PETITIONER: PANGASINAN TRANSPORTATION CO., INC.
RESPONDENT: THE PUBLIC SERVICE COMMISSION
SUMMARY
PANTRANCO questions the constitutionality of Section 15 CA 146 as amended by Section 1 CA 454 with respect to
additional conditions being attached to its certificates of public convenience. The Supreme Court disagreed, saying
that said provision of law is not unconstitutional, but it remanded the case as procedural due process was not
observed.
FACTS
1. PANTRANCO (engaged for 20 years in transporting passengers via TPU buses in accordance with the terms of
its CPC) filed for authorization to operate ten additional new Brockway trucks, on the ground that they were needed to
comply with the terms and conditions of its existing certificates and as a result of the application of the Eight Hour
Labor Law.
2. The PSC granted this application for increase of equipment subject to two conditions (one of them to limit the
term of the CPCs to 25 years), to the disagreement of PANTRANCO. The PSC denied PANTRANCO’s MR.
3. PANTRANCO filed THIS petition, praying that Section 1 of CA No. 454 be declared unconstitutional and void.
Its other arguments:
a. The legislative powers granted to the PSC (which is without limitation, guide or rule) constitute a complete
and total abdication by the Legislature of its functions.
b. Even if it were a valid delegation, the PSC exceeded its authority because:
i.It should apply only to future certificates
ii.It violates constitutional guarantees.
4. Section 15 CA No. 146, as amended by Section 1 of CA No. 454 reads:
a. (1st par) "With the exception of those enumerated in the preceding section, no public service shall operate in
the Philippines without possessing a valid and subsisting certificate from the Public Service Commission, known as
'certificate of public convenience/ or 'certificate of convenience and public necessity,' as the case may be, to the
effect that the operation of said service and the authorization to do business will promote the public interests in a
proper and suitable manner.
b. (2nd par) "The Commission may prescribe as a condition for the issuance of the certificate provided in the
preceding paragraph that the service can be acquired by the Commonwealth of the Philippines or by any
instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable depreciation; and
likewise, that the certificate shall be valid only for a definite period of time; and that the violation of any of these
conditions shall produce the immediate cancellation of the certificate without the necessity of any express action on
the part of the Commission.
c. (4th par) "The foregoing is likewise applicable to any extension or amendment of certificates actually in force
and to those which may hereafter be issued, to permits to modify itineraries and time schedules of public services
and to authorizations to renew and increase equipment and properties."
ISSUE
1. Is the statute in question unconstitutional and void? NO (See RATIO 1, 2 and 4)
2. Does the statute apply to existing CPCs? YES (See RATIO 4)
3. Was there a valid delegation of legislative power to the PSC? YES (See RATIO 3)
4. Was procedural due process observed? NO (See RATIO 5)
RATIO
1. The Court first dissected parts of the statute in question.
a. Under paragraph 1, no public service can operate without a CPC/CPCN to the effect that the operation of
said service and the authorization to do business will promote "public interests in a proper and suitable manner.'
b. Paragraph 2 provides conditions which the PSC may prescribe for the issuance of the CPC/CPCN
i.that the service can be acquired by government upon payment of the cost price of its useful equipment minus less
reasonable depreciation – This just restates a principle in Section 6 Article XII of the Constitution, which provides that
"the State may, in the interest of national welfare and defense, establish and operate industries and means of
transportation and communication, and, upon payment of just compensation, transfer to public ownership utilities and
other private enterprises to be operated by the Government."
ii.(THIS IS WHAT PANTRANCO WAS ASSAILING) that the certificate "shall be valid only for a definite period of time."
c. Under paragraph 4, the possible imposition of these conditions are expressly made applicable "to any
extension or amendment of certificates actually in force" and "to authorizations to renew and increase equipment and
properties." This was intention of the drafters of this law
2. Harmonizing paragraphs 1 and 2 with pertinent laws and Constitutional provisions, the PSC in issuing a
certificate must be satisfied that the operation of the service under said certificate during a definite period fixed
therein "will promote the public interests in a proper and suitable manner." Thus:
a. The PSC cannot disregard the period of operation in determining whether the issuance of the CPC will
promote the public interests in a proper and suitable manner.
b. Conversely, in determining "a definite period of time," the Commission will be guided by "public interests,"
the only limitation to its power being that said period shall not exceed fifty years (Sec. 16(a), CA No. 146;
Constitution, Art. XIII, sec. 8.)
3. (On the issue of delegation) The fact that the National Assembly may itself exercise the function and
authority thus conferred upon the Public Service Commission does not make the provision in question constitutionally
objectionable.
a. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature, and toward the approval of the practice by the courts.
4. (On constitutionality) The statutes in question (CA 146 and 454) are not unconstitutional for impairing
obligations of contracts, taking property without due process or denying equal protection.
a. Section 74 of the Philippine Bill, Section 28 of the Jones Law and the Constitution similarly state that all
franchises given are all subject to the amendment, alteration, or repeal by Congress when the public interest so
requires.
b. Statutes enacted for the regulation of public utilities, being a proper exercise by the state of its police power,
are applicable not only to those public utilities coming into existence after its passage, but likewise to those already
established and in operation.
c. CAs 146 and 454 form part of the charter of every utility company operating or seeking to operate a
franchise in the Philippines.
d. The question whether or not private property shall be devoted to a public use and the consequent burdens
assumed is ordinarily for the owner to decide; and if he voluntarily places his property in public service he cannot
complain that it becomes subject to the regulatory powers of the state.
5. While there is substantive due process, there is an issue with procedural due process.
a. On the matter of limitation to twenty five (25) years of the life of its CPCs, there had been neither notice nor
opportunity given PANTRANCO to be heard or present evidence.
b. There are cardinal primary rights which must be respected even in proceedings of this character. The first of
these rights is the right to a hearing, which includes the right of the party interested or affected to present his own
case and submit evidence in support thereof. Not only that, the tribunal must consider the evidence presented.
DISPOSITIVE
The decision appealed from is hereby reversed and the case remanded to the Public Service Commission for further
proceedings in accordance with law and this decision, without any pronouncement regarding costs.
Perils of Classifying Social Media as Public Utilities, by Adam Thierer
I. INTRODUCTION
PRO: Academic and public policy circles want to include social media sites (SMS), especially social networking sites
(SNS), under public utility regulation because of fairness, privacy, reputational harms and “social utility/commons”.
CON: Treating nascent digital services as regulated utilities are harmful because:
● Public utility regulation is archenemy of innovation and competition
● Monopoly or essential facility claims are self-fulfilling prophecies
● It is a threat to innovation and investment to mandate API neutrality[1] or to enforce a separations
principle[2] on integrated information platforms
ALTERNATIVE:
● Transparency and data-portability policies would solve many criticisms
● Private empowerment solutions exist for users concerned about privacy
● Heightened constitutional scrutiny of regulation proposals since social media are tied up with First
Amendment values in production and dissemination of speech
● Social media providers should retain the editorial discretion to determine the configuration and allowable
content on their platforms
II. RISING CALLS FOR THE REGULATION OF A NEW MEDIUM
A. “Search Neutrality” and “Net Neutrality” as a Prelude to Broader Debate
ISSUE: Should SNS like Facebook, LinkedIn and Twitter, and other digital apps like Amazon, Apple and Google be
regulated as public utilities where neutrality mandates are imposed upon them? This is a question to resolve conflict
between economic efficiency and fairness.
PROPOSED SOLUTION: Search neutrality regulation modeled after net neutrality regulation may be needed, like a
Federal Search Commission, especially with the growth of search giant Google which dominates in advertising and
controls which websites receive traffic.
B. Generic Calls for Public Utility-Style Regulation of Social Media
PRO:
● Users get locked into online services without “social network neutrality”
● Spectrum abundance does not stop monopoly ownership of hardware and software, so no equal civic,
educational or cultural access for all
● Social media researcher danah boyd contends that Facebook is acquiring public utility characteristics
● Zeynep Tufekci, assistant professor at the University of North Carolina, Chapel Hill argued that many services
are natural monopolies (e.g. Google, Facebook, Amazon, Ebay) which benefit greatly from network externalities which
means that more people on the service increases usefulness; Facebook and Google cause “corporatization of social
commons”
● Search engines frequently claim that algorithms are neutral and rank data using a strict scientific or
mathematical calculus without human intervention, when every search provider and social media service uses both
automated and human elements to ensure relevant results and prevent spammers from surfacing.
REGULATION PROPOSALS:
● Worries over long-term reputational harm led to calls for increased intermediary policing responsibilities,
including where search engines provide an equivalent of the “right of reply” for user information that may be
inaccurate or defamatory; at the search layer, Google could have a panel of neutral arbitrators to evaluate claims by
private individuals that search results are tortious or dignitary harms
● In May 2011, Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas) introduced H.R. 1895 or the Do Not
Track Kids Act of 2011 would mandate “Eraser Buttons” for social media sites where the right to be forgotten can be
exercised through elimination of online content, controversial because it is tantamount to digital censorship and threat
to press freedoms
● In mid-2011, the FTC announced that it was investigating Twitter’s control over third-party uses of its API,
which carries the threat of exclusionary business practices, as well as censorship of subject-specific hashtags and
trends (e.g. user complaints that #wikileaks and #occupywallstreet were often trending but not always leading the
algorithm-based Trends list).
C. Wu’s “Separations Principle” for “Information Monopolies”
Columbia Law School professor Tim Wu, in his recent works The Master Switch: The Rise and Fall of Information
Empires and In the Grip of the New Monopolists, argues that the current laissez-faire approach to information
monopolies like Facebook, Google, Apple and Twitter is no longer feasible.
ASSERTIONS:
● Traditional forms of regulation, including anti-trust laws, are inadequate for regulation of information
industries since these industries traffic in forms of individual expression and are fundamental to democracy; this is
contrary to the First Amendment which has higher scrutiny
● The constitutional approach modeled on the US constitution’s separation of powers deals with the corrupting
effects of vertically-integrated power
○ This approach advocates for a separations principle for the information economy that segregates information
providers into content creators, distributors, and hardware makers
○ This proposal is a variant of structural separation, the nuclear option of anti-trust reserved for most extremely
entrenched monopolies, (e.g. the 1984 government breakup of the Bell monopoly, where AT&T’s local
telephone-exchange facilities became 7 independent regional operators
D. “API Neutrality” for App Platforms
Harvard University cyberlaw professor Jonathan Zittrain in his book The Future of the Internet—And How to Stop It
suggested that we need API neutrality to ensure fair access to certain online services or ditigal platforms
CONCERNS:
● Absence of API neutrality could imperil “generativity”, technologies or networks that invite or allow tinkering
and all creative secondary uses
○ Primary examples of secondary uses include general-purpose personal computers and the traditional “best
efforts” Internet where you send data and pray that a properly implemented Internet protocol makes sure the data
moves from one end to the other
○ In contrast, there are “sterile appliances tethered to a network of control” or digital technologies that
discourage tinkering, like proprietary devices (e.g. Apple’s iPhone, TiVo, or online walled gardens like the old AOL) that
are too easily controlled by corporate intermediaries or government
○ Network neutrality-style mandates should be done for appliancized systems with open APIs that should
remain application-neutral so that all who built on top of their interface can continue such
● Zittrain wants a legal standard to hold online providers accountable, alluding to applying the common law
principle of adverse possession where occupation of another’s private property without explicit objection or permission
can legitimately acquire it
III.THE BASIC LAW AND ECONOMICS OF PUBLIC UTILITIES AND ESSENTIAL FACILITIES
A. Traditional Rationales for Regulation
Under traditional or “public interest” theories of regulation, there are two broad forms of “market failure” as rationales
to regulate the private sector:
● Economic market failure: market tends toward monopoly instead of competition
○ natural monopoly exists when a single firm can satisfy the entire demand within a relevant market at the
lowest cost possible due to economies of scale; monopolist is free to raise prices and profits
○ traditional remedies include antitrust laws, public utility regulation, price controls, or government ownership;
all of which are to preserve affordability, quality, and ongoing innovation and investment
● Social goals and values: can include universal provision of goods or services, fair or nondiscriminatory
industry practices, cultural goals, environmental value, or privacy concerns
B. Definitional Confusion
● “Public utilities” and “essential facilities” are less rigorously defined and actively debated due to their
ambiguous and circular definitions.
● Essential facility: in anti-trust parlance, it is a service or network that is entirely unique and possesses few or
no good alternatives (e.g. sewage and water systems); Professor Geoff Manne says that to prevail in a monopolization
case rooted in the essential facilities doctrine, the plaintiff needs to prove
○ Control of the essential facility by a monopolist,
○ A competitor’s inability to duplicate the essential facility;
○ The denial of the use of the facility to a competitor; and
○ The feasibility of providing the facility to competitors.
The physical nature of these facilities matters greatly in two senses:
● The exclusive possession of an important physical network creates a “bottleneck” through which all other
traffic must pass, requiring non-discriminatory access (e.g. only bridge in town)
● The physical nature entails significant fixed costs that are considered non-duplicable, which lead to the
service being labeled a “natural monopoly”
Governments typically impose four types of regulation on natural monopolies, essential facilities and public utilities,
usually through public utility commissions:
● Control of firms’ entry into and exit from the industry
● Price regulation out of fear of monopoly gouging
● Condition of service/quality controls
● Universal service obligations (serve all, especially in a certain area)
C. Doubts Surrounding the Legitimacy or Application of Theories
● One problem is that regulatory proponents in antitrust cases use the label “essential facilities” for facilities
that are non-essential but that they are unwilling to attempt to duplicate
● Law professors Philip Areeda and Herbert Hovenkamp argue that essential facilities doctrine is harmful and
should be abandoned, because
○ Consumers are not better off when a monopoly is shared, as price and output remain the same as when one
monopolist uses input alone
○ The right to share a monopoly discourages firms from developing their own alternative inputs
● The doctrine threatens innovation, since forced sharing of a monopoly lessens incentive for the monopolist,
the rival or both to invest in facilities (antitrust attorney and former Asst. Attorney General R. Hewitt Pate)
● There should be a presumption against claims of better consumer welfare by applying essential facilities
doctrine to force owners to share access with competitors (Boston University law professor Keith Hylton)
● Some argue that monopoly often springs from other sources, like government
● Natural monopoly is also suggested to be a transient problem since technological change and new entry and
innovation will help markets innovate around existing bottlenecks or entrenched incumbents
Regardless of these definitional disputes, social networking services and SMS do not qualify as natural monopolies or
essential facilities.
D. Success of Liberalization Efforts Calls Wisdom of Regulation into Question
Studies show that deregulation of industries once heavily regulated (airlines, natural gas, railroads,
telecommunications and trucking) lowered prices, increased competitive entry, broadened consumer choices, and
improved overall service quality. Congressional Democrats and the Carter and Bush administrations led deregulation
efforts to increase competition and choices, as well as lower prices.
E. The Problem of Regulatory Capture
This capture theory is when affected parties “capture” the rulemaking process and use it for their self-interested ends,
closely related to “rent-seeking” and “political failure” theories by the public choice school of economics.
● Capture explains why natural monopoly assertions are false: it is not natural for a monopoly to use regulation
as a shield from competition
● The traditional normative theory of regulation did not explain deficiencies in the political-decision making
process, which led to the development of a new, more robust economic theory of regulation where it was inappropriate
to assume that regulatory intervention was always better for the public interest or welfare.
Capture as a problem for utility sectors:
● Commissions identify the interest of the public with that of the companies on which it relies to deliver goods.
● Regulation is sought because of the inconvenience of competition, but innovation from the regulated entity
itself lessens (e.g. railroad and airline industries which used the Interstate Commerce Commission and the Civil
Aeronautics Board respectively for cartelization and market protectionism)
IV. GENERAL PROBLEMS WITH SOCIAL NETWORKS AS PUBLIC UTILITIES
A. Social Media Are Not Natural Monopolies or Essential Facilities
Social media possesses none of the qualities of public utilities or essential facilities:
● They are not physical resources with high fixed costs and have no “bottlenecks”
● Competitors can duplicate social media platforms by building a user base even if externalities reward larger
platforms and other platforms deny competitors use
● The infrastructure needed is just code, computers and servers for social media versus the cost-prohibitive
market entry of huge capital investment required in traditional communications for physical towers, wires and
distribution hardware
● Cyberservices rapidly displace each other, evolving from past markets once referred to as web portals (e.g.
AOL, AltaVista, CompuServe, Prodigy)
○ First generation social networks are gone (e.g. Six Degrees, Friendster, Livejournal, MySpace)
○ New alternatives are emerging (e.g. myYearbook with 20M members sold for $100M in July 2011;
second-generation SMS: Twitter, Google+)
● Social media platforms are not essential to survival, economic success or online life, since users can use
other social media like LinkedIn, Twitter, etc.
● Life can go on without Facebook unlike water and electricity, via phone calls, voice messages, instant
messaging, email and physical mail, and face-to-face
● Users can transport their digital profiles to alternative platforms easily, which lessens the concern that
consumers can be denied access to essential services.
B. The Danger of Creating an Actual Social Media Monopoly
● A classification of public facilities for social media could become a self-fulfilling prophecy, similar to applying
utility status to telecommunications companies
○ Imposing utility obligations on a platform tends to lock it in as the preferred choice in its sector
○ Regulation for standardization on a common platform can erect de fact or de jure barriers to entry that
restricts innovation and disrupts market
● Regulation could foreclose dynamic competition (e.g. Google+ threatening FB)
C. Public Utility Regulation Would Stifle Dynamic Digital Innovation and Raise Prices
● Making social media a digital essential facility would freeze innovation and encourage users to settle for a
regulated platform
○ Mechanisms to control utilities (e.g. price controls, rate of return regulation, entry and exit barriers)
guarantee fair access but are without incentive for utility providers to earn greater return, meaning innovation suffers
● SNS are readily available and almost universally free of charge anyway
○ This renders unnecessary regulations like cross-subsidization schemes
○ Online advertising and freemium business models utilize price discrimination to charge premium users and
maintain free basic service
● SNS are constantly innovating anyway
○ The “monopoly sloth” problem of lack of incentives to innovate can easily occur in social media utilities
without competition and regulator preference (e.g. FB would not have had competitor Instagram to pressure it to
introduce locational check-ins)
● Unclear how policymakers would define markets in the social media context; they should not box in quickly
evolving sectors by constraining them since most rules will probably be outdated when they are implemented and
there will be little incentive to rework them
D. Regulation Could Impose Direct Costs On Consumers
● Hard to identify abusive behavior since the usual indicator, price, is free
● Regulation of data-collection or advertising-based models may lead to SNS reallocating costs to consumers
to remain profitable
○ Charges for SNS may create consumers revolting since they are used to free online services
○ Further investment and innovation will be discouraged in SNS that do not generate revenue
● Utility treatment which shelters companies from competition will raise prices
E. Social Media Regulation Could Raise First Amendment Issues
● The traditional bases of media regulation (broadcast radio and TV) has been scarcity and need for allocation
of the underlying resource (broadcast spectrum)
○ Inapplicable to SMS which are abundant, rapidly evolving and privately-owned
● Regulation which requires SMS to offer access to competitors or users could qualify as compelled speech
○ E.g. mandate of API or algorithmic neutrality would compromise editorial discretion and First Amendment
rights
○ The SC rejected mandates for newspapers, and held that compelling a private corporation to include a
newsletter with third-party content violated the First Amendment
○ The eraser button or right to be forgotten also challenges the First Amendment because of direct impact on
free information flow
○ Reno v. ACLU: law that places burden on adult speech is unacceptable if less restrictive alternatives are as
effective
F. Less Restrictive Means Are Available to Address Concerns
● Disclosure policies would reveal to users what data are collected
● Data-portability policies to use data across services (e.g. messages, contacts, calendars and pictures)
● Cookie control tools to help users manage data collection
● Ad preference managers and opt-out tools for digital advertising, or data collection blocks (e.g. DuckDuckGo)
● Private browsing mode (e.g. IE InPrivate, Google Incognito, Mozilla Private)
Less restrictive methods are important because:
● The First Amendment requires that proposed content-based regulations satisfy a least-restrictive means test
● The Federal Trade Commission actively uses its authority to take an active role in privacy protection, from
issuing guidance to bringing enforcement actions
V. PROBLEMS WITH SPECIFIC REGULATORY PROPOSALS
A. Zittrain’s Adverse Possession and API Neutrality [see II.D.]
● There is a self-correcting mechanism of revolt from application developers and users if social media were to
lock down their platforms
● A move to limit generative opportunities could spur more entry and innovation as other developers and users
seek more open alternatives
○ e.g. iPhone platform, when opened to third-party apps, led to 25B app downloads by March 2012
○ e.g. Twitter reversed its API open access policy, which Zittrain refers to as a “bait-and-switch remedy”,
although clients with interoperability can provide alternatives to Twitter
● However, the API neutrality principle may make it hard for companies to monetize traffic and increase
businesses because they are forced to share their valuable intellectual property
B. Wu’s Separations Principle [see II.C.]
● Segregation and classification of information providers into creators, distributors and hardware makers do
not conform to our dynamic digital economy
○ E.g. Google now markets phones, travel services, TVs and PCs; Verizon, before a telephone company, sells
wireless devices; AOL was once a dial-up Internet provider and now is in advertising; Netflix moved into electronic
distribution of movies
○ Wu’s proposal would require breakups of many technology companies and SMS, meaning
■ Litigation due to forced divestitures
■ Loss of integrative efficiencies and core competencies
■ Loss of firm’s labor force and shareholder value
● Wu’s proposal requires government to keep its distance but regulatory capture would then not be held in
check; moreover, regulatory line drawing would be complex and costly, as each new information-sector innovation
would be subjected to a laborious classification proceeding
C. The Question of Property Rights in Platforms and Protocols
● There is no general duty to share
○ Phillip Areeda explains: No one should be forced to deal unless doing so is likely substantially to improve
competition in the marketplace by reducing price or by increasing output or innovation. Such an improvement is
unlikely (a) when it would chill desirable activity; (b) [when] the plaintiff is not an actual or potential competitor; (c)
when the plaintiff merely substitutes itself for the monopolist or shares the monopolist's gains; or (d) when the
monopolist already has the usual privilege of charging the monopoly price for its resources .... Even when all these
conditions are satisfied, denial of access is never per se unlawful; legitimate business purpose always saves the
defendant.
● Whether forcing access to private social media platform constitutes unconstitutional taking of property rights
remains an open question
○ Pro: regulating protocol is not the same as regulating property
○ Anti: surrender of control of API would undermine control of the only monetizable asset
V. CONCLUSION: DYNAMIC SCHUMPETERIAN CHANGE VS. THE STATIC, ADMINISTRATIVE MINDSET
● Dynamic competition view: espouses Joseph Schumpeter’s “perennial gales of creative destruction”
○ firms compete not on the margins of price and output, but by offering new products, new technologies, new
sources of supply, and new forms of organization
○ possession of market power is consistent with vigorous competition, and many seemingly anticompetitive
practices facilitate innovation
● Static competition mindset: popularity of social media platforms over others is a problem which new entry or
innovation does not fix; problematic because
○ fails to anticipate the identity and business of disruptive new entrants
○ low switching costs between SMS means dominant info provider still faces cross-elasticities of demand from
other providers, e.g. failure of the AOL and Time Warner merger, single interface for multiple IM services disrupting
AOL dominance
● Public utility regulation is a declaration of surrender on competition
US Telecom vs Federal Communications
NOTE: Sorry for posting a digest copied from an online source, I did so for now, since the original case is 184 pages
long and I am not yet done reading it. :( For now, this digest is a consolidation of several online summaries of the
case. I will try my best to edit and amend this digest accordingly as I read the original.
UNITED STATES TELECOM ASSOCIATION vs. FEDERAL COMMUNICATIONS COMMISSION, US COURT of APPEALS, DISTRICT
of COLUMBIA
June 14, 2016 | xxx | Public Utilities: Further Reading | Facinal
PETITIONERS: UNITED STATES TELECOM ASSOCIATION, ET AL.
RESPONDENTS: FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA
SUMMARY:
The United States Telecom Association challenged a 2015 Federal Communications Commission order, the Open
Internet Order, which reclassified broadband services, i.e., Internet Service Providers (ISPs) as telecommunications
services, and thus common carriers. Said Order attempted to force broadband service providers to abide by rules
enforcing net neutraility – a policy wherein ISPs are required to carry all traffic without discrimination regardless of
source. The Court of Appeals of Columbia upheld
DOCTRINE:
● Broadband services are telecommunications services, which are engaged in the offering of
telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to
the public, regardless of the facilities used – therefore they are common carriers.
● Net Neutrality is the principle of non-discrimination by Internet Service Providers (ISPs) with regards to data
that they carry.
FACTS
● In 2015, FCC issued the Open Internet Order which:
● Reclassified all broadband services (e.g. DSL, cable, mobile) as telecommunications services;
● Refrained from applying certain common carrier provisions to broadband as “consistent with public interest”;
and
● Instituted five open internet rules:
■ Anti-blocking rule
■ Anti throttling rule
■ Ban on paid prioritization
■ General Conduct rule (to promote net neutrality using a non-exhaustive list of factors)
■ Enhanced transparency rule
● The order came about after concerns came about that absent rules promoting net neutrality, broadband
providers would represent a threat to Internet opennes and act in ways that would ultimately inhibit the speed and
extent of future broadband deployment, such that they would interfere with end users’ unfettered internet access to
increase revenues, particularly when making use of specific edge providers (e.g. Netflix).
● Several parties, including the US Telecom Association, challenged the FCC order. They argued that:
○ The reclassification of broadband service as a telecommunication service subject to common carrier was
improper and unreasonable
○ FCC lacked statutory authority to reclassify broadband and issue the rules
○ NPRM did not provide adequate notice of reclassfication or the content of the rules
○ mobile broadband does not qualify as a commercial mobile service subject to common carrier treatment;
○ the FCC could not ignore some Title II provisions when regulating broadband providers; and
○ some of the rules violated broadband providers’ First Amendment rights to freedom of speech.
ISSUES:
1. WON the FCC properly classified broadband service as a “telecommunications service,” which would subject
it to the common carrier treatment necessary to institute net neutrality rules; YES
2. WON the open internet rules were proper or whether they violated broadband providers’ free speech rights
under the First Amendment. NO
1. A broadband service provider makes a “stand-alone offering of telecommunications,” and are within the definition of a
“telecommunications service” as determined by the FCC, and properly classified as such.
● The FCC had properly focused on consumer perception of what broadband service providers “offer” — the
product they sell to consumers.
● Broadband services provide the unadulterated transmission of messages via computer processing, in that
they connect users to third party content. Content from edge providers like Netflix, YouTube, and MLB.tv have
“transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and
falling in love to more quotidian ones like hailing a cab and watching a movie.”
● As such, a broadband service provider makes a “stand-alone offering of telecommunications,” and are within
the definition of a “telecommunications service” as determined by the FCC, and properly classified as such.
● Broadband providers’ reliance on information services such as the DNS and caching were not enough to
disturb the FCC’s finding, as they were merely “telecommunications system management exceptions.”
The challengers’ procedural arguments regarding the sufficiency of notice in the NPRM reclassification also failed, as did
their argument that the FCC lacked statutory authority to reclassify broadband.
● FCC’s reclassification of mobile broadband service as a “commercial mobile service” was reasonable, given
mobile broadband service’s increased ubiquity since its initial classification in 2007 and its versatility to communicate
with all Internet and phone users.
● This move also avoided a contradictory result under which mobile broadband would have been a common
carrier under one definition, and exempt from common carrier treatment under another.
● FCC’s decision to forbear from applying certain Title II regulations upon broadband providers was reasonable
given the FCC’s understanding of the market implications and the possibility of implicating the Fifth Amendment’s
Takings Clause.
The ban on paid-prioritization was within the FCC’s statutory authority under Title II and the Telecommunications Act of
1996.
● FCC’s justification for the open internet rules was sufficient, as the Court had already decided in Verizon that
open internet rules “will preserve and facilitate the ‘virtuous circle’ of innovation that has driven the explosive growth
of the Internet”
● The General Conduct Rule was not unconstitutionally vague under the Due Process Clause, as it was
“designed to be flexible so as to address unforeseen practices and prevent circumvention of the bright-line rules”
such as the anti-blocking and anti-throttling rules.
2. Broadband providers merely offer access to internet content as a utility, do not receive protection under the First
Amendment, and are therefore properly subject to the open internet rules that maintain they remain indiscriminate,
neutral providers.
● Common carriers have “long been subject to nondiscrimination and equal access obligations akin to those
imposed by the rules without raising any First Amendment question. Those obligations affect a common carrier’s
neutral transmission of others’ speech, not a carrier’s communication of its own message.”
● For internet access itself (as opposed to original content or a curated internet experience), the FCC properly
found that broadband providers are “mere conduits for the messages of others, not as agents exercising editorial
discretion,” and thus do not receive First Amendment protection.
● Broadband providers historically exercise no editorial control like publishers, and a broadband provider does
not — and is not understood by users to — “speak.”
NOTES:
● The Internet is a distributed global communication network that allows users and providers to transmit and
receive information in many different forms. It has four major participants:
○ End users: individual consumers and businesses using the internet;
○ Broadband providers: use technologies like cable modems, DSL, and fiber optics to deliver high-speed
internet service to users;
○ Backbone networks: interconnect broadband providers;
○ Edge providers “provide content, services, and applications over the internet.” (slip op. at 9, quoting Verizon
v. FCC) Examples of edge providers include ESPN, Netflix, Google, and Amazon.
● End users, edge providers and internet freedom advocates worried that absent rules prohibiting such
behavior, broadband providers would interfere with end users’ unfettered internet access to increase revenues,
particularly when making use of specific edge providers like Netflix.
HISTORY:
Title II of the Communications Act of 1934 (Title II) gives the FCC the power to regulate common carriers, public
utilities like telephone service. Title II requires that common carriers furnish “communication service upon reasonable
request,” and without “unjust or unreasonable discrimination in charges practices, classifications, regulations,
facilities, or services,” while charging “just and reasonable rates.”
1996 Telecommunications Act of 1996 subjected “telecommunications service”
to common carrier treatment under Title II, distinguishing such service from
“information services.”
1998 DSL service classified as a telecommunications service, subjecting it to
common carrier treatment
2002 cable modem service (a type of broadband service) classified as solely an
information service exempt from common carrier treatment
2010 Court vacated 2007 FCC order for failure to identify any proper statutory
authority
NOTE: broadband not yet reclassified as telecommunications service
2010 Open Internet Order released, prompting rules to enforce net
neutrality
2014 Verizon case: Court struck down the open internet rules from the 2010
order because they treated broadband providers as if they were common
carriers. The FCC could not lawfully institute open internet rules as long as
broadband providers remained classified as information services, which are
exempt from requirements imposed on common carriers that they transmit
information without discrimination.