TXTPower's Opposition pleading
Transcript of TXTPower's Opposition pleading
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REPUBLIC OF THE PHILIPPINES
NATIONAL TELECOMMUNICATIONS COMMISSION
Quezon City
In Re: Application for the sale andtransfer to the Philippine LongDistance Telephone Company ofinitially approximately 51.55% equityin Digital TelecommunicationsPhilippines, Inc. Pursuant to Section20(h) of Commonwealth Act No. 146(Public Service Act) with a prayer forProvisional Authority.
PHILIPPINE LONG DISTANCETELEPHONE COMPANY ANDDIGITAL TELECOMMUNICATIONSPHILIPPINES, INC. ,
Applicants.
NTC Case No. 2011-072
x---------------------------------------------------------x
OPPOSITION
Oppositor TXTPOWER.ORG INC. (hereinafter referred to as
TXTPower), through the undersigned, respectfully states:
1. Section 4 of the Public Telecommunications Policy Act of the
Philippines (Republic Act No. 7925), declares that telecommunications is
essential to the countrys economic development, integrity and security of the,
and as such shall be developed and administered as to safeguard, enrich and
strengthen its economic, cultural, social and political fabric.
2. The importance and crucial value of telecommunications in the
life of a nation, as well as the Governments role in harnessing its full
potential, was highlighted by the Supreme Court in the case of Globe
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Telecom, Inc. v. National Telecommunications Commission, 435 SCRA
110 (2004), wherein it stated that:
Telecommunications services are affected by a highdegree of public interest. Telephone companies have historically
been regulated as common carriers, and indeed, the 1936 Public
Service Act has classified wire or wireless communications
systems as a public service, along with other common carriers.
Yet with the advent of rapid technological changes
affecting the telecommunications industry, there has been a
marked reevaluation of the traditional paradigm governing state
regulation over telecommunications. For example, the United
States Federal Communications Commission has chosen not to
impose strict common regulations on incumbent cellular
providers, choosing instead to let go of the reins and rely on
market forces to govern pricing and service terms.
In the Philippines, a similar paradigm shift can be
discerned with the passage of the Public Telecommunications
Act of 1995 (PTA). As noted by one of the laws principal
authors, Sen. John Osmea, under prior laws, the government
regulated the entry of pricing and operation of all public
telecommunications entities. The new law proposed to dismantle
gradually the barriers to entry, replace government control onprice and income with market instruments, and shift the focus
of governments intervention towards ensuring service
standards and protection of customers. Towards this goal,
Article II, Section 8 of the PTA sets forth the regulatory logic,
mandating that a healthy competitive environment shall be
fostered, one in which telecommunications carriers are free to
make business decisions and to interact with one another in
providing telecommunications services, with the end in view of
encouraging their financial viability while maintaining
affordable rates. The statute itself defines the role of the
government to promote a fair, efficient and responsive marketto stimulate growth and development of the telecommunications
facilities and services.
xxx xxx xxx
The NTC is at the forefront of the government response to
the avalanche of inventions and innovations in the dynamic
telecommunications field. Every regulatory action it undertakes
is of keen interest not only to industry analysts and players but
to the public at large. The intensive scrutiny is understandable
given the high financial stakes involved and the inexorable
impact on consumers. xxx
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3. Pursuant to Section 4 of R.A. No. 7925, the following principles
and policies shall guide the Government as it shepherds the growth and
development of telecommunications services in the country:
a) A fundamental objective of government is to
develop and maintain a viable, efficient, reliable and universal
telecommunication infrastructure using the best available and
affordable technologies, as a vital tool to nation building and
development;
b) The expansion of the telecommunications network
shall give priority to improving and extending basic services to
areas not yet served. For this purpose, government shall
promote a fair, efficient and responsive market to stimulate the
growth and development of the telecommunications facilities
and services, with emphasis on the accessibility by persons to
basic services in unserved and underserved areas at affordable
rates;
c) The radio frequency spectrum is a scarce public
resource that shall be administered in the public interest and in
accordance with international agreements and conventions to
which the Philippines is a party and granted to the best
qualified. The government shall allocate the spectrum to serviceproviders who will use it efficiently and effectively to meet
public demand for telecommunications service and may avail of
new and cost effective technologies in the use of methods for its
utilization;
d) Rates and tariff charges shall be fair, just and
reasonable and for this purpose, the regulatory body shall
develop tariff structures based on socioeconomic factors and on
financial, technical and commercial criteria as measures to
ensure a fair rate of return and as a tool to ensure economic and
social development;
e) Public telecommunications services shall be
provided by private enterprises. The private sector shall be the
engine of rapid and efficient growth in the telecommunications
industry;
f) A healthy competitive environment shall be
fostered, one in which telecommunications carriers are free to
make business decisions and to interact with one another in
providing telecommunications services, with the end in view of
encouraging their financial viability while maintaining
affordable rates;
g) A fair and reasonable interconnection of facilities of
authorized public network operators and other providers of
telecommunications services is necessary in order to achieve a
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viable, efficient, reliable and universal telecommunications
services;
h) The government shall give all the assistance and
encouragement to Philippine international carriers in order to
establish interconnection with other countries so as to provideaccess to international communications highways on a
competitive basis;
i) For efficiency, practicability, and convenience, but
with due regard to the observance of due process at all times,
regulation of telecommunications entities shall rely principally
on an administrative process that is stable, transparent and
fair, giving due emphasis to technical, legal, economic and
financial considerations;
j) No single franchise shall authorize an entity to
engage in both telecommunications and broadcasting, either
through the airwaves or by cable;
k) Ownership of public telecommunications entities to
as wide a number of people as possible, preferably to its
customers, in order to encourage efficiency and public
accountability and to tap personal savings shall be encouraged;
l) The development of a domestic telecommunications
manufacturing industry to meet the needs of the Philippinesand to take advantage of export opportunities shall be promoted
without preventing, deterring or hampering the goal of full
universal service; and
m) Human resources skills and capabilities must be
harnessed and improved to sustain the growth and the
development of telecommunications under a fast changing
telecommunications environment.
4. As the agency mandated to administer the Governments
telecommunications policy and regulate the allocation and assignment of
available frequencies, the Honorable Commission shall exercise the following
powers and functions Pursuant to Section 5 of R.A. No. 7925:
a) Adopt an administrative process which would
facilitate the entry of qualified service providers and adopt a
pricing policy which would generate sufficient returns to
encourage them to provide basic telecommunications services in
unserved and underserved areas;
b) Ensure quality, safety, reliability, security,
compatibility and inter-operability of telecommunications
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facilities and services in conformity with standards and
specifications set by international radio and telecommunications
organizations to which the Philippines is a signatory;
c) Mandate a fair and reasonable interconnection of
facilities of authorized public network operators and otherproviders of telecommunications services through appropriate
modalities of interconnection and at a reasonable and fair level
of charges, which make provision for the cross subsidy to
unprofitable local exchange service areas so as to promote
telephone density and provide the most extensive access to basic
telecommunications services available at affordable rates to the
public;
d) Foster fair and efficient market conduct
through, but not limited to, the protection of
telecommunications entities from unfair trade practices
of other carriers;
e) Promote consumers welfare by facilitating
access to telecommunications services whose
infrastructure and network must be geared towards the
needs of individual and business users;
f) Protect consumers against misuse of a
telecommunications entitys monopoly or quasi-
monopolistic powers by, but not limited to, theinvestigation of complaints and exacting compliance
with service standards from such entity; and
g) In the exercise of its regulatory powers, continue to
impose such fees and charges as may be necessary to cover
reasonable costs and expenses for the regulation and supervision
of the operations of telecommunications entities.
5. In particular, Section 5(d), (e) and (f) of R.A. No. 7925 highlight
the Honorable Commissions role in fostering fair and efficient market
conduct, promoting consumer welfare and protecting consumers against
monopolies. Stated otherwise, the Honorable Commission is mandated to
safeguard the interests of consumers by regulating the actions of and services
provided by public telecommunications entities (hereinafter referred to as
PTEs).
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6. Premises considered, oppositor TXT Power is therefore alarmed
by the acquisition by Philippine Long Distance Telephone Company
(hereinafter referred to as PLDT) of the ownership interest of JG Summit
Holdings, Inc (hereinafter referred to as the JGS Group) and that of certain
other parties in Digital Telecommunications Philippines, Inc. (hereinafter
referred to as Digitel) due to its grave impact on the balance of interests
and robust competition within the telecommunications industry and its far-
reaching consequences on consumer services and welfare.
7. Pertinent records reveal that said commercial transaction
between PLDT and Digitel (hereinafter referred to as the PLDT-Digitel
Deal) comprises the following: (i) 3,277,135,882 common shares in Digitel,
representing a 51.55% equity stake; (ii) zero-coupon convertible bonds issued
by Digitel and its subsidiaries to the JGS Group which are assumed to be
convertible into approximately 18.6 billion shares of Digitel by 30 June 2011;
and (iii) intercompany advances of P34.1 Billion made by the JGS Group and
certain of such parties to Digitel and its subsidiaries.
8. If the PLDT-Digitel Deal will be approved, PLDT will reportedly
have an estimated wireless mobile market share of up to 70%, thus raising
serious concerns about provisions for adequate consumer services and
welfare. Moreover, pursuant to the PLDT-Digitel Deal, the JGS Group will
further sell the 2.8% stake it will receive from PLDT (out of its total 12.8%
stake) to Japanese telecommunications giant NTT DoCoMo, thus
emphasizing the need to protect the interests of consumers and end-users
above those of PTEs.
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9. Further, if the PLDT-Digitel Deal will be approved, PLDTs vast
telecommunications empire will have control over almost all of the countrys
wireless mobile services and/or brands reportedly amounting to as much as
70% wireless mobile market share, as previously indicated namely: Smart
(owned by PLDT), Talk N Text (previously owned by Pilipino Telephone
Corporation, hereinafter referred to as Piltel), Red Mobile (previously
owned by Connectivity Unlimited Resources Inc., hereinafter referred to as
CURE) and Sun (previously owned by Digitel). The remaining wireless
mobile market share a meager 30% by industry estimates belongs to the
stable of Globe Telecom, Inc. (hereinafter referred to as Globe), with two (2)
services and/or brands, namely: Globe and Touch Mobile.
10. Moreover, if the PLDT-Digitel Deal will be approved, PLDT will
have control over three (3) out of the five (5) Third-Generation Wireless
Communications Technology (3G) Frequencies bidded out pursuant to the
Honorable Commissions Memorandum Circular No. 07-08-2005 OR the
Rules and Regulations on the Allocation and Assignment of 3G Radio
Frequency Band, namely: Smart, Digitel and CURE. The other active 3G
frequency was granted to Globe, while the last 3G frequency remains
unawarded pending litigation. With this arrangement, the PLDT empire now
controls a whooping 45 MHz out of a total of 55 MHz of the designated 3G
spectrum frequencies. The looming monopoly of PLDT over the
countrys telecommunications industry is clear, undeniable and
unacceptable.
11. In this regard, Section 19 of Article XII of the Constitution of the
Philippines provides in no uncertain terms: The state shall regulate or
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prohibit monopolies when the public interest so requires. No combinations in
restraint of trade or unfair competition shall be allowed.
12. In the case of Tatad v. Secretary of the Department of
Energy, 281 SCRA 330 (1997), the Supreme Court defined a monopoly and a
combination in restraint of trade as follows:
Amonopoly is a privilege or peculiar advantage vested
in one or more persons or companies, consisting in the exclusive
right or power to carry on a particular business or trade,
manufacture a particular article, or control the sale or the whole
supply of a particular commodity. It is a form of market
structure in which one or only a few firms dominate the
total sales of a product or service. On the other hand, a
combination in restraint of trade is an agreement or
understanding between two or more persons, in the form of a
contract, trust, pool, holding company, or other form of
association, for the purpose of unduly restricting
competition, monopolizing trade and commerce in a
certain commodity, controlling its production,
distribution and price, or otherwise interfering withfreedom of trade without statutory authority. Combination
in restraint of trade refers to the means, while monopoly refers
to the end. [Emphasis supplied]
13. Further, in the case ofAgan v. Philippine International Air
Terminals Co., Inc., 402 SCRA 612 (2003), the Supreme Court discussed
the regulation of monopolies in this manner:
A monopoly is a privilege or peculiar advantage vested
in one or more persons or companies, consisting in the exclusive
right (or power) to carry on a particular business or trade,
manufacture a particular article, or control the sale of a
particular commodity. The 1987 Constitution strictly regulates
monopolies, whether private or public, and even provides for
their prohibition if public interest so requires. Article XII,
Section 19 of the 1987 Constitution states:
Sec. 19. The state shall regulate or prohibit
monopolies when the public interest so requires.
No combinations in restraint of trade or unfair
competition shall be allowed.
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Clearly, monopolies are not per se prohibited by the
Constitution but may be permitted to exist to aid the
government in carrying on an enterprise or to aid in the
performance of various services and functions in the interest of
the public. Nonetheless, a determination must first be made as
to whether public interest requires a monopoly. As monopoliesare subject to abuses that can inflict severe prejudice to the
public, they are subject to a higher level of State regulation than
an ordinary business undertaking.
14. In this connection, former National Economic and Development
Authority Director-General Cielito F. Habito discussed the looming monopoly
in light of the PLDT-Digitel Deal:
THERE ARE remarkably parallel developments
transpiring on both sides of the Pacific in two very different
economies: the Philippines and the United States of America.
Heres the general scene: A giant telecommunications
company has moved to acquire (and thus merge with)
another competitor, threatening to achieve a commanding
share of the industry, thereby reducing competition
therein.
In the US, American Telephone & Telegraph (AT&T) has
announced a $39-billion takeover of T-Mobile USA, in a merger
that would make the company the dominant player in an industry
that has heretofore had four major players. Industry rival Sprint
Nextel Corp. is fighting the move, claiming that the merger
threatens its very existence as a standalone company, which could
bring back the old telephone monopoly (of the then giant AT&T)
that US regulators broke up in 1984. Since the AT&T-led
American Bell Telephone Co. opened the first telephone exchange
in 1877 in New Haven, Connecticut, this single firm had controlled
the American telephone industry. The forced break-up led to alively competition that resulted in lower costs and wider choices for
American consumers.
In a parallel development here at home, the Philippine
Long Distance Co. (PLDT) has acquired a controlling stake
in Digitel Corp. which operates Sun Cellular, whose entry
into the erstwhile duopoly of PLDT/Smart and Globe had
dramatically transformed the nature of pricing in the
industry, to the benefit of consumers. Just as Sprint Nextel
is unhappy in the US, so is Globe in the Philippines as itfaces the prospect of being relegated to a small minority
share (30 percent) of a two-player market. It is arguing for
a more level playing field with the National
Telecommunications Commission, inasmuch as PLDT
would now own a disproportionate share of the
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telecommunications frequencies on which the companies
may transmit their phone services.
Both mergers have yet to be cleared by their respective
governments, even as their merits and demerits have been the
subject of active public policy debate. But theres a key differencebetween the two stories: the legal and institutional framework
within which government clearance for the mergers is being
deliberated is quite different in the US from the Philippines. In the
US, there has long been a strong law against cartels and
monopolies, through the Sherman Antitrust Act of 1890, later
reinforced by the Clayton Antitrust Act of 1914. The purpose of the
law is to prevent the combination of business entities that could
potentially harm competition, such as monopolies or cartels. At the
time of its passage, trust was synonymous with monopolistic
practice (which is no longer necessarily the case today). This was
because the trusta centuries-old form of contract whereby one
party entrusts its property to a second partywas a popular way
for monopolists to hold their businesses, and a way for cartel
participants to create enforceable agreements. Internationally, the
more common name now for such laws is competition law or
competition policy.
US antitrust laws declare it a felony for any person to
monopolize or attempt to monopolize any part of trade or
commerce, or to combine or conspire with any other person or
persons to restrain trade or commerce, whether in domestic orforeign markets. Other practices deemed illegal include price
discrimination between different buyers if such discrimination
tends to create a monopoly; exclusive dealing agreements; tying
arrangements; and mergers and acquisitions that substantially
reduce market competition. The AT&T and T-Mobile merger could
fall under the last, giving the US government explicit basis to stop
it if it can be established that this will indeed reduce market
competition.
The US Senate is currently deliberating on the issue, and
some lawmakers have indicated public skepticism over AT&Tsclaim that T-Mobile was not an important competitor, in an
apparent attempt to play down the significance of its move. The
US legislators have noted, for example, that T-Mobile often
undercuts the prices of AT&T and current industry leader Verizon
Wirelesssomething anyone of us roaming with our cell phones in
the US can readily confirm (check your bill: a text message sent
home from the US via T-Mobile costs P20, but one sent through
AT&T costs P25).
In a similar manner, Sun Cellular had constantly been
undercutting the prices of PLDT-Smart and Globe, forcing the
latter two into offering the unlimited packages that it first
introduced.
Whether in the US or here, it seems that the strategic
response of the more dominant player was to buy out the
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underpricing competitor. And just as bystander Verizon in the US
must privately welcome the elimination of a price-spoiler, Globe
must also find some private satisfaction in the elimination of a
player that had spoiled the profitable party (i.e., before Sun
entered the picture years ago).
Still, the Philippines does not have the
comprehensive competition policy that the US has long
had, to give it a strong legal basis to stop the PLDT-Digitel
merger. What it has are piecemeal laws and executive
issuances that had opened previously monopolized or
protected markets, especially those introduced by
President Fidel V. Ramos in the 1990s to break open
prominent monopolies and cartels, notably in telecoms and
domestic airlines. But many remain, such as in cement,
domestic shipping, port handling services, and other key
industries. It is high time Congress acted to correct the glaring
deficiency. [ A tale of two telecom industries (24 May 2011),
available at http://opinion.inquirer.net/5383/a-tale-of-two-telecom-
industries; emphasis supplied]
15. One need not be learned in the intricacies and
peculiarities of the telecommunications industry to conclude that
the alarming trend exhibited by the PLDT-Digitel Deal appears to be
a looming monopoly through a combination in restraint of trade
within the countrys telecommunications industry that is prejudicial
and detrimental to the interests of consumers and end-users as it
leads to industry domination and higher prices for basic
telecommunication services, thus stifling real, robust and healthy
competition among PTEs. On this score alone, the instant Joint
Application for the approval of the PLDT-Digitel Deal should be
denied and/or disapproved by the Honorable Commission.
16. Moreover, to date, it does not appear from the records
that PLDT and/or Digitel has applied for, much less obtained,
approval from the Congress of the Philippines in favor of the PLDT-
Digitel Deal. This is a crucial matter a prejudicial question even
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that the Honorable Commission should not gloss over in determining
whether the instant Joint Application for the approval of the PLDT-
Digitel Deal should be denied and/or disapproved.
17. To protect consumers and end-users from the misuse by a
telecommunications entitys of its potentially monopolistic powers, the
respective legislative franchises of PLDT and Digitel provided certain
safeguards. Sections 16, 17 and 18 of Republic Act No. 7082, which amended
and consolidated the legislative franchise granted to PLDT to install, operate
and maintain telecommunications systems in the country, provides the
following injunction and/or limitation on said franchise:
"SEC. 16. The grantee shall not lease, transfer, grant the
usufruct of, sell or assign this franchise, nor the rights or
privileges acquired thereunder to any person, firm, company,
partnership, corporation or other commercial or legal entity, normerge with any other person, firm, company, partnership or
corporation organized for the same purpose except where the
grantee is the surviving corporation, without the prior approval
of the Congress of the Republic of the Philippines.
Any corporation to which this franchise may be sold,
transferred, or assigned shall be subject to the corporation laws
of the Philippines now existing or hereafter enacted, and any
person, firm, company, partnership, corporation or other
commercial or legal entity to which this franchise is sold,
transferred or assigned shall be subject to all conditions, terms,restrictions and limitations of this franchise as fully and
completely and to the same extent as if the franchise had been
originally granted to said person, firm, company, partnership,
corporation or other commercial or legal entity.
SEC. 17. In adherence to the constitutional mandate, the
herein grantee shall comply with the enabling law implementing
the democratization of ownership of all public utilities.
SEC. 18. This franchise shall not be interpreted to mean
as an exclusive grant of the privileges herein provided for.
18. In the same manner, Sections 16 and 20 of Republic Act No.
9180, which granted a legislative franchise to Digitel to install, operate and
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maintain telecommunications systems in the country, provides a similar
injunction and/or limitation on said franchise:
SECTION 16. Sale, Lease, Transfer, Usufruct, Etc. The grantee shall not lease, transfer, grant the usufruct of, sell
nor assign this franchise or the rights and privileges acquired
thereunder to any person, firm, company, corporation or other
commercial or legal entity, nor merge with any other corporation
or entity, nor shall the controlling interest of the grantee be
transferred, whether as a whole or in parts and whether
simultaneously or contemporaneously, to any such person, firm,
company, corporation or entity without the prior approval of the
Congress of the Philippines. Any person or entity to which this
franchise is sold, transferred or assigned, shall be subject to the
same conditions, terms, restrictions and limitations of this Act.
SECTION 20. Repealability and Nonexclusivity Clause.
This franchise shall be subject to amendment, alteration or
repeal by the Congress of the Philippines when the public
interest so requires and shall not be interpreted as an exclusive
grant of the privileges herein provided for.
19. Thus, as required by their respective legislative franchises,
PLDT and Digitel should first obtain congressional approval for the transfer,
sale and/or assignment of the rights and privileges under said franchises
before the PLDT-Digitel Deal may enter into force. Without congressional
fiat, any such transfer, sale and/or assignment is illegal and unlawful.
20. Moreover, being mere privileges, the legislative franchises of
PLDT and Digitel are subject to amendment, alteration or repeal by the
Congress of the Philippines when the common good so requires, as held by
the Supreme Court in Telecommunications and Broadcast Attorneys of
the Philippines v.Commission on Elections,289 SCRA 337 (1998).
21. Recognizing the potential ramifications on both the
telecommunications industry and its consumers and end-users if the PLDT-
Digitel Deal is allowed to proceed and as proof that neither PLDT nor Digitel
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has obtained approval for the transfer, sale and/or assignment of the rights
and privileges under their respective franchises, as required by R.A. No. 7082
and R.A. No. 9180 Senator Joker P. Arroyo filed Senate Resolution No. 477
seeking to direct the Senate Committee on Public Services to conduct a review
in the exercise of its oversight powers, or an inquiry in aid of legislation, of the
share-swap deal and related transactions between PLDT and Digitel with
the end in view of determining whether it is consistent with and not in
violation of certain provisions of their respective legislative franchises and that
the arrangement would be to the public interest.
22. Clearly, oppositor TXTPower respectfully submits that
the Honorable Commission cannot act on the instant Joint
Application considering that no prior congressional approval has
been obtained by PLDT and Digitel insofar as the PLDT-Digitel Deal
is concerned, pursuant to R.A. No. 7082 and R.A. No. 9180. In this
respect, any act of the Honorable Commission at this stage would be
premature and contrary to law. It is further respectfully submitted
that the Honorable Commission suspend and hold in abeyance any
and all proceedings in connection with the PLDT-Digitel Deal until
after the Congress of the Philippines shall have passed upon the
propriety and/or lawfulness of the transfer, sale and/or assignment of
the rights and privileges under the respective franchises of PLDT
and Digitel in light of said PLDT-Digitel Deal.
23. Assuming for the sake of argument that PLDT and Digitel
are able to obtain congressional approval for the transfer, sale
and/or assignment of the rights and privileges under their respective
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franchises pursuant to R.A. No. 7082 and R.A. No. 9180, oppositor
TCTPower respectfully submits that the PLDT-Digitel Deal should be
scrutinized with surgical precision. Considering that the issue
before the Honorable Commission is imbued with public interest,
anything less would be a disservice to stakeholders, mobile
technology consumers and end-users and the general public and
contrary to the Honorable Commissions mandate.
24. To this end, there is a need to inquire, among others, as to the
status of Smart, Piltel and CURE which were once independent from PLDT
particularly whether they have complied with the injunctions and
limitations in respect of their own legislative franchises and/or provisional
authorities.
25. To bolster the instant Joint Application, PLDT claims that its
investments in Digitel is allegedly expected to achieve substantial benefits for
the consumers, the general public and the shareholders of both PLDT and the
JGS Group in the form of higher quality and even more affordable services.
However, with all due respect, this is nothing more than a self-serving and
convenient platitude that is detached from reality. Truth be told, even prior
to its deal with Digitel, PLDT was already the countrys dominant carrier yet
its services are known to be among the slowest, least reliable and most
expensive in the southeast Asian region. Up until this time, the status quo in
Philippine telecommunications is marked by the following:
Unstable, unreliable calls, text and internet services;
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One of the slowest internet in the world, with countriessuch as Rwanda and Tunisia able to provide faster
internet speeds;
High nominal prices which are hidden behind capriciousbut enticing promotions;
Below-par customer service, tiny business offices,incompetent customer service personnel;
Interconnection fees continue to keep mosttelecommunications rates high;
Iron-clad contracts that jail many unsatisfied customersto bad telecommunications services for up to three (3)
years, with no clear escape clause for instances where
PTEs dont deliver their side of the deal; and
Imposition of Value-Added Tax and OverseasCommunications Tax.
26. More questions arise as a result of the instant Joint
Applications, to which the Honorable Commission should demand forthright
answers. Among the lingering questions are, but not limited to:
In the case of CURE, has it already been granted alegislative franchise and/or provisional authority to roll
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out a Second-Generation Mobile Telecommunications
Technology (2G) Frequency? Why is it providing 2G
Services under the PLDT telecommunications empire
when its license only allows it to roll out 3G Services?
PLDT undertakes to keep mobile operations of Digitelseparate and intact from that of its other mobile services
and/or brands. Why is there no such undertaking insofar
as CURE is concerned?
Should PLDT take over Digitels fixed-line operations, willDigitel no longer pay interconnection fees? How about
other non-PLDT PTEs? Would discounts and removal of
interconnection fees only occur if and when PLDT
acquires or buys them out?
27. From the foregoing, it is evident that the PLDT-Digitel
Deal is prejudicial and detrimental to the interests of consumers
inasmuch as it encourages the reemergence of the PLDT monopoly.
28. Considering the telecommunications monopoly that
would result if the PLDT-Digitel Deal is given due course, the same
should, therefore, be denied and/or disapproved by the Honorable
Court. Otherwise, the Honorable Commission will pave the way for
the rebuilding of cartels that have already been dismantled and
broken down in the name of competition, fair play and consumer
welfare.
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PRAYER
WHEREFORE,it is respectfully prayed that the Honorable Court:
1. Suspend and hold in abeyance any and all proceedings in
connection with the PLDT-Digitel Deal until after the Congress of the
Philippines shall have passed upon the propriety and/or lawfulness of the
transfer, sale and/or assignment of the rights and privileges under the
respective franchises of Philippine Long Distance Telephone Company and
Digital Telecommunications Philippines, Inc. in light of said PLDT-Digitel
Deal; and
2. Deny and/or disapprove the instant Joint Application for the
approval of the PLDT-Digitel Deal for being prejudicial to the interests of
consumers and the public in general.
Other reliefs just and equitable are likewise prayed for.
Quezon City, Metro Manila, May 25, 2011.
ANTHONY IAN M. CRUZPresident
TXTPower.org Inc.
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COPY FURNISHED:
(By Registered Mail)
ATTY. FERNANDO M. SOBIERRA and
ATTY. AILEEN D. REGIO
Counsel for Philippine Long Distance Telephone Company3rd Floor Ramon Cojuangco Bldg.
Makati Ave., Makati City
ATTY. WILLIAM S. PAMINTUAN
Counsel for Digital Telecommunications Philippines, Inc.
16th Floor, Robinsons Cybergate Tower 3
Pioneer St., Mandaluyong City
ATTY. RODOLFO A. SALALIMA
Salalima Castelo and Ungos
Counsel for Globe Telecom, Inc.
5th Floor, Globe Telecom Plaza
Pioneer cor. Madison Sts., Mandaluyong City
THE SECRETARY OF JUSTICE
Department of Justice
Padre Faura St., Ermita
Manila
THE SOLICITOR GENERAL
Office of the Solicitor General134 Amorsolo St., Legaspi Village
Makati
COMMITTEE ON PUBLIC SERVICES
Senate of the Philippines
GSIS Bldg., Financial Center
Roxas Blvd., Pasay City
COMMITTEE ON LEGISLATIVE FRANCHISES
House of Representatives
Batasan Pambansa ComplexQuezon City
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WRITTEN EXPLANATION
FOR SERVICE BY REGISTERED MAIL
THE DOCKET CLERK
National Telecommunications CommissionQuezon City
Greetings:
Please be informed that the undersigned caused the service of copies of
the foregoing Opposition upon the above-mentioned counsel by registered
mail. The undersigned counsel was unable to personally serve copies of the
foregoing Opposition upon the above-mentioned counsel considering the
distance involved.
ANTHONY IAN M. CRUZ
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VERIFICATION
I,ANTHONY IAN M. CRUZ, of legal age, Filipino, with office address
at 10-B P. Burgos Street corner Calderon Street, Project 4, Quezon City,
Metro Manila, after having been duly sworn in accordance with law, herebydepose and state that:
1. I am the President of TXTPower.org Inc.;2. I have been duly authorized by TXTPower.org Inc.
to cause the preparation and filing of the instant Opposition, as
evidenced by a Secretarys Certificate dated May 20, 2011, a
copy of which was previously furnished the Honorable
Commission; and
3. I have read and understood the contents of the
instant Opposition and attest that all the allegations contained
therein are true and correct based on my own personal
knowledge and/or based on authentic records.
ANTHONY IAN M. CRUZ
Affiant
SUBSCRIBED AND SWORN to before me this 25th
day of May 2011at Quezon City, affiant exhibiting to me his Philippine passport with number
XX3994225 issued in Manila by the Department of Foreign Affairs on June
19, 2009 and which expires on June 18, 2014, bearing his photograph and
signature.
Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2011.