Transpo - Week 3 - Other Modes of Regulatory Control - Coggle Diagram
Transpo - Week 3 - Other Modes of Regulatory Control
A. Restriction on Exclusivity
B. Permissions Subject to Amendment
C. Fixed-Term / Maximum-Term
D. Take-over Power
E. Privatization of State-Operated Public Utilities
- The inverse of takeover.
Scope of Privatization (Kuwait Airways v. Philippine Airlines) -
Generally, the CAB has indispensable authority to compel local air carriers to comply with government determined policies, even at the expense of economic rights.
However, PAL at the time of the signing of the CMU was no longer government owned and the government does not have legal capacity to dictate insuperable commands to private persons.
Even assuming that police power may be exercised to impair the vested rights of privately-owned airlines, the deprivation of property requires due process of law.
SC still acknowledging the regulatory powers of the CAB, clarifies that during the signing of the CMU, Philippine Airlines was no longer government owned and the government does not have legal capacity to dictate insuperable commands to private persons.
David v. Macapagal Arroyo - Under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest.
Agan v. Piatco
-The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such the government is not required to compensate the private entity-owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner affected by the temporary takeover cannot, likewise, claim just compensation for the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminent domain.
More v. Electric - (Q: Main Op or Dissent?; Power of Eminent Domain vs. Takeover Power?)
Requirements of a valid exercise of a delegated power of eminent domain:
Valid delegation to a public utility to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property
Identified public use, purpose or welfare for which eminent domain or expropriation is exercised
Previous tender of a valid and definite offer to the owner of the property sought to be expropriated, but which offer is not accepted
Payment of just compensation
General Rule - Private property which is already devoted to a public use can be burdened by expropriation with a
different public purpose
1 more item...
Main Opinion: Conclusion: More Electric’s expropriation of PECO’s distribution system serves both the general public interest and the peculiar public interest and security of ensuring supply of uninterrupted electricity.
Dissent: Sec. 10 simultaneously favors More Electric with unwarranted benefits that are not enjoyed by other public utilities that are similarly situated.
Sec. 10 discriminates against PECO by allowing expropriation of its assets upon payment of an assessed value rather than the fair market value.
Exercise of Take-Over Power
- May be exercised by the president, but, only through the delegation fo Congress oft he power via a law that prescribes the reasonable terms of the take-over power.
- Power to take-over privately-owned public utilities or business affected with public interest.
- Operation of the business and not ownership. A police power measure since no just compensation for the period of take-over.
Length of Term (Francisco v. TRB)
- While TRB is vested by law with the power to extend the administrative franchise or authority that it granted, it cannot do so for an accumulated period exceeding 50 years.
Basis of Limitation
- Sec. 11, Art. XII of the 1987 Constitution which provides that “no franchise, certificate, or any other form of authorization for the operation of a public utility shall be x x x for a longer period than fifty years
RCPI v. NTC
- Law granting the franchise must always be followed. In this case, approval is still needed from Sec. so this should be complied with.
Francisco v. TRB
- special franchise directly emanating from Congress is not necessary if the law already specifically authorizes an administrative body to grant a franchise or to award a contract (e.g. LTFRB, NTC, PPA). Law vesting power to the TRB must be followed, so TRB's power cannot go beyond 50 years.
Must Carry Rule
ABSCBN v. PMSI- “This mandatory coverage provision under Section 6.2 of said Memorandum Circular, requires all cable television system operators, operating in a community within the Grade “A” or “B” contours to “must-carry” the television signals of the authorized television broadcast stations, one of which is IBC-13.
Elements of Rebroadcasting:
There is transmission of sounds or images or of representations thereof;
The transmission is through satellite;
The transmission is for public reception; and
The means for decrypting are provided to the public by the broadcasting organization or with its consent.
RETRANSMISSION OF SIGNALS VIA CABLE TV =/= REBROADCASTING
]PMSI only carried existing signals of ABSCBN, it is still a cable tv, it is not a broadcasting corporation
Broadcasting - Transmission of own signals.
Rebroadcasting - simultaneous broadcasting with another company. Must carry is not rebroadcasting.
Rationale of the Must-Carry Rule:
Favors both broadcasting organizations and the public.
It prevents cable television companies from excluding broadcasting organization especially in those places not reached by signal.
Also, the rule prevents cable television companies from depriving viewers in far-flung areas the enjoyment of programs available to city viewers
Telecom v. Comelec
- Franchises can be amended for the common good. Grant of franchise can be burdened with some form of public service. Sir doesn't like this case.
Dissent: Is airtime owned by public companies? Can this be sold to advertisers? Does this constitute taking of property without due process of law?
Print Media vs. Broadcast Media
Uniqueness, Pervasive Influence
- also serves to justify take-over power of public utilities.
Who May Amend (Francisco v. TRB)
- While the Constitution provides that the issuance of a franchise, certificate or other form of authorization for the operation of a public utility shall be subject to amendment, alteration or repeal by Congress, this does not necessarily imply that only Congress has the power to grant such authorization.
- Congress may, pursuant to a law, validly grant specified administrative agencies the power to issue such franchises or authorization for certain classes of public utilities. Such delegation of its legislative authority to administrative agencies is consistent with Congress’ power of subordinate legislation.
Alteration by the TRB
- The TRB is vested with the power to impose conditions on PNCC's franchise in an appropriate contract. They may thus amend or alter the same when the public interest so requires;
Delegationg Law (PSC 16n-m)
- The Public Service Commission, has the power to amend, modify, suspend, or revoke a certificate issued under the Public Service Act under the following conditions:
- Whenever the facts and circumstances on the strength of which said certificate was issued have been misrepresented or materially changed.
- whenever the holder thereof has violated or willfully and contumaciously refused to comply with any order rule or regulation of the Commission or any provision of this Act:
- That the Commission, for good cause, may prior to the hearing suspend for a period not to exceed thirty days any certificate or the exercise of any right or authority issued or granted under this Act by order of the Commission, whenever such step shall in the judgment of the Commission be necessary to avoid serious and irreparable damage or inconvenience to the public or to private interests.
Metro Cebu v. Adala
- Term "franchise" includes CPCs; an exclusive franchise is unconstitutional because water districts are public utilities; same principle found in Tawang v. La Trinidad.
Batangas v. Ornales
- CPC is issued when it is for the convenience of the public. There is no legal principle which would give preferential right to an irregular operator over a regular one who was first in the field; no monopoly as long as government regulates;
[Batangas rule not absolute], Rizal Light v. Morong
- The “protection-of-investments rule” is not absolute for nobody has exclusive right to secure a franchise or a certificate of public convenience. The protection of investments rule may only be invoked by public utility operators of good standing.
Basis of Protection of Investments Rule
- To prevent ruinous competition. Franchises avoid need to go into competition to drive down prices as they are subject to rate fixing regardless.
The power of the PSC to issue a CPC depends on the condition precedent that, after a full hearing and investigation, it should have made a finding of fact that the operation of the proposed public service is for the convenience of the public.
As long as the first licensee keeps and performs the terms and conditions of its license, complies with the rules and regulations of the PSC, and meets the reasonable demands of the public, it should have a vested and preferential right over a person who seeks to acquire a license over the same route.
Exclusivity (Tawang Multipurpose v. LTWD
- Franchises for the operation of a public utility cannot be exclusive. This is an absolute prohibition. This applies equally to franchises created by Congress or, franchises granted by administrative agencies with delegated power.