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Transpo Week 1 - Public Utilities - Coggle Diagram

- - - - D. The Public Service Commission and Successors
        
        E. Whether or Not a Public Utility
        
        Public Service Act, Sec. 14 for enterprises not covered by definition of public service
        
        Republic Act No. 9136, Secs. 6 & 29; - EPIRA
        
        Republic Act No. 10668, Sec. 4 & 7
        
        SECTION 4. Carriage of a Foreign Cargo by a Foreign Vessel. — A foreign vessel:
        
        Arriving from a foreign port, shall be allowed to carry a foreign cargo to its Philippine port of final destination, after being cleared at its port of entry;
        
        Arriving from a foreign port, shall be allowed to carry a foreign cargo by another foreign vessel calling at the same port of entry to the Philippine port of final destination of such foreign cargo;
        
        Departing from a Philippine port of origin through another Philippine port to its foreign port of final destination, shall be allowed to carry a foreign cargo intended for export; and
        
        Departing from a Philippine port of origin, shall be allowed to carry a foreign cargo by another foreign vessel through a domestic transshipment port and transferred at such domestic transshipment port to its foreign port of final destination.
        
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        SECTION 6. Generation Sector. — Generation of electric power, a business affected with public interest, shall be competitive and open.
        Upon the effectivity of this Act, any new generation company shall, before it operates, secure from the Energy Regulatory Commission (ERC) a certificate of compliance pursuant to the standards set forth in this Act, as well as health, safety and environmental clearances from the appropriate government agencies under existing laws.
        Any law to the contrary notwithstanding, power generation shall not be considered a public utility operation. For this purpose, any person or entity engaged or which shall engage in power generation and supply of electricity shall not be required to secure a national franchise.
        Upon implementation of retail competition and open access, the prices charged by a generation company for the supply of electricity shall not be subject to regulation by the ERC except as otherwise provided in this Act.
        Pursuant to the objective of lowering electricity rates to end-users, sales of generated power by generation companies shall be value-added tax zero-rated.
        The ERC shall, in determining the existence of market power abuse or anti-competitive behavior, require from generation companies the submission of their financial statements.
        
        SECTION 29. Supply Sector. — The supply sector is a business affected with public interest. Except for distribution utilities and electric cooperatives with respect to their existing franchise areas, all suppliers of electricity to the contestable market shall require a license from the ERC.
        For this purpose, the ERC shall promulgate rules and regulations prescribing the qualifications of electricity suppliers which shall include, among other requirements, a demonstration of their technical capability, financial capability, and creditworthiness: Provided, That the ERC shall have authority to require electricity suppliers to furnish a bond or other evidence of the ability of a supplier to withstand market disturbances or other events that may increase the cost of providing service. EHSTcC
        Any law to the contrary notwithstanding, supply of electricity to the contestable market shall not be considered a public utility operation. For this purpose, any person or entity which shall engage in the supply of electricity to the contestable market shall not be required to secure a national franchise.
        The prices to be charged by suppliers for the supply of electricity to the contestable market shall not be subject to regulation by the ERC.
        Electricity suppliers shall be subject to the rules and regulations concerning abuse of market power, cartelization, and other anti-competitive or discriminatory behavior to be promulgated by the ERC.
        In its billings to end-users, every supplier shall identify and segregate the components of its supplier's charge, as defined herein.
        
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        Sir says limitation of industries considered as public utilities means lifting of 60-40 requirement. Thus, more foreign capital.
        
        PLDT Cases - determination of public utility suggested by PLDT cases is a judicial function. This is because requirement of determination of facts and law.
        
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        Exemptions (PSA 14) - Section 14. The following are exempted from the provisions of the preceding section:
        
        Warehouses;
        
        Vehicles drawn by animals and bancas moved by oar or sail, and tugboats and lighters;
        
        Airships within the Philippines except as regards the fixing of their maximum rates on freight and passengers;
        
        Radio companies except with respect to the fixing of rates;
        
        Public services owned or operated by any instrumentality of the National Government or by any government-owned or controlled corporation, except with respect to the fixing of rates.
        
        Public Interest (JG Summit Holdings v. CA) - The mere existence of public interest in business does not thereby render the business a public utility. A utility intended for its own use does not require a legislative franchise.
        
        Franchise (Albano v. Reyes) - A public utility requires the grant of a legislative/municipal franchise. Alternatively, the may operate if they are granted licenses or authorized by law.
        
        Ownership (Tatad v. Garcia) - The right to operate a public utility exists independently of the ownership of the facilities for a public utility.
        
        Test of Public Use (Iloilo Ice v. Public Utility Board) - The test is to determine if the privilege is confined to privileged individuals or open to the indefinite public. The use is public if all persons have the right to use under the same circumstances.
        
        PSC - A regulatory and franchising commission created by CA 146.
        
        Abolishment - PD 1 abolished the PSC, and replaced it with (3) regulatory boards.
        
        Board of Transportation,
        
        Board of Communication
        
        Board of Power and Waterworks.
        
        Board of Transportation - Initially, reorganized into the
        
        Land Transportation Commission which was then reorganized into first the
        
        Dept. Of Transportation and Communication and then
        
        Land Transportation Franchising and Regulatory Board.
        
        National Telecommunications Commission - Subsequently, Marcos integrated the Board of Communications and the Telecommunications Control Bureau to form a single entity to be known as the NTC.
        
        Radio Franchises (Divinagracia v. Consolidated) - The NTC may issue, but NOT cancel radio franchises.
      - 1987 Constitution, Article XII, Section 6 - The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.
        
        Public Service Act, as amended
        
        By Whom (KMU Labor v. Garcia) - Wielded primarily by the legislative. They delegate regulation powers to administrative agencies. Administrative agencies may not delegate the already delegated powers.
        
        Purpose of Regulation (Luzon Stevedoring) - To protect the public. Includes ruinous competition and unreasonable charges as well as inefficient service.
        
        Authority of LGUs (Batangas CATV v. CA) - Under the general welfare clause of the LGC, LGUs have delegated police power. However, if regulatory power is vested specifically to an administrative body, it does so to the exclusion of all others unless, pursuant to public welfare.
        
        Scarcity Doctrine (Divinagracia v. Consolidated) - Scarcity of radio frequencies made it necessary for the government to step in and allocate frequencies to competing broadcasters.
        
        Munn & Scott v. Illinois - Under the powers inherent in sovereignty, a government may regulate the conduct of its citizens and the manner of use of property.
    - - From Reviewers - All PServices are Putilities but, not all Putilities are PServices.
        
        From Tinga (JG Summit) - All utilities are services, not all services are utilities
      - Qualification - A person engaged in agriculture not otherwise a public service, who owns a motor vehicle and uses the vehicle personally/for a special contract where vehicle is hired to a 3rd party who engages in agriculture (not a public service) for a specific purpose directly connected with the cultivation of the farm or transportation/processing/marketing of agricultural products, the 3rd party is not a public service.
        
        Iloilo Ice Plant - The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public.
        
        Conversion into Public Utility (Munn v. Illinois) - When property is used in a manner as to make it of public consequence and to affect the community at large, it becomes property affected with public interest. In such cases, the owner must submit to be controlled by the public for the common good, to the extent of the interest created.
        
        Definitions -
        
        Public Service - Enumeration under the PSA
        
        Public Use - Open to the indefinite public. Public use must be determined by both the character of the business and the proposed mode of doing the business. If the use is merely optional with the owners, or the public benefit merely incidental, it is not public use. There must be a right which the law compels the owner to give to the general public.
        
        Public Utility - Public utility is service to, or readiness to serve, an indefinite public or portion of the public ,which has a legal right to demand and receive its services or commodities. Thus, public utility is both public use and service to the public.
        
        Service to the Public - Stated otherwise, the owner or person in control of a public utility must have devoted it to such use that the public generally or that part of the public which has been served and has accepted the service, has the right to demand that use or service so long as it is continued, with reasonable efficiency and under proper charges
      - Compensation - Even if the business is compensated and limited to the customers, still considered as a public service.
      - Operation - Only requires a certificate of public convenience from the PSC, under the Public Services Act (Sec. 13, Sec. 18).
    - - Public Service - Unique to the Philippines. Distinction because Public Service Act places services under authority of the PSC and not the Judiciary. This means that services can be required for licensing, etc.
        
        PSC - Abolished in 1972 via integrated reorganization plan. PSC was devolved into specialized agencies. LTFRB, LTO, NTC. But, PSC powers are still wielded by these agencies.
        
        Q. If PSA regulations apply to services not existing at the time of the PSA. Such as internet, television, etc.
        
        Sir says distinction between utilities and services, theoretically don't make sense.
        
        For regulatory purposes, whether a utlity or service there is a concession that these are treated different from normal businesses.
        
        CPC - No one agency that issues certificate of public convenience tapos diff depts/ office na gumagawa
        
        Legislative Requirement for Franchise -
  - - - Importance of Public Interest (Luzon Stevedoring v. PSC) - It is only necessary that there must be some public interest in the business. It is not necessary that the business be dedicated to public use nor is it required that it serve a set number of people.
        
        Operation - There must be a legislative franchise OR a license from the relevant administrative agency + certificate of public necessity and convenience for its operation.
        
        Test - Whether the public may enjoy the utility by right, or by permission.
        
        Operation v Ownership (Tatad v. Garcia) - The right to operate a public utility may exist independently and separately from the ownership of the facilities thereof.
        
        Requirement of a Legislative Franchise (Teresa Electric & Power Co. v PSC) - Franchise requirement for the grant of a certificate of public convenience applies only to applications for business purpose i.e., with intent to render service to the general public. If for mere private use, then a CPCN may be allowed.
    - - How Withdrawn - This may be withdrawn by discontinuing the use of the utility.
        
        60% Rule (Art. XII, Sec. 11) - No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.
      - Duties for Use (Munn v. Illinois) - When private property is affected with a public interest, it ceases to be juris privati (of private right) only. If it's dedicated to such a purpose, the owners cannot take arbitrary and excessive duties, but the duties must be reasonable
        
        Capitalization (JG Summit v. CA) - A public utility business must be 60% owned by FIlipinos
        
        Argument for Legislative Determination - Sir says that determination w/n private property affected by public interest can be made/should be made by Congress via laws. Because representational democracy means that public can elevate if affected to representatives in Congress directly.
        
        Conflict - Conflicts with case law, which says judicial determination. In Munn v. Illinois, application of this concept in common law. Arguable that neutral party i.e., the judiciary is better to do this. Legislative determination can be susceptible to lobbying, etc.
        
        Issue is how deferential judiciary would be to legislative attempts to exempt a particular industry from the scope of public utility.