|
THE
claim of Bonifacio Communications Corp. (BCC) and
Philippine Long Distance Telephone Co. (PLDT) that they
have exclusive rights to operate within the Bonifacio
Global City (BGC)—to justify blocking the bid of Globe
Telecom Inc. to also operate in the area—has been
rejected as unconstitutional by the Department of
Justice (DOJ).
The
department thus affirmed the stand of the National
Telecommunications Commission (NTC) that the
Constitution prohibits any carrier from claiming
exclusivity in the operation of public utilities within
any given service area.
Justice
Secretary Raul Gonzalez reiterated in his legal opinion
that Section 11, Article XII of the Constitution
provides that the operation of a public utility shall
not be exclusive. “Our reservations notwithstanding, the
NTC can enforce and validly maintain that the Global
City is a ‘free zone’ within which all enfranchised
public telecommunications entities so authorized by the
NTC can provide high-speed networks and communications
connectivity.”
NTC
chairman Ruel Canobas sought the DOJ chief’s legal
opinion after Globe Telecom and its
wireless-communications provider subsidiary Innove
objected to the claim of exclusivity claimed by PLDT,
based on its agreement with BGC.
The BGC,
a subsidiary of the Bases Conversion and Development
Authority (BCDA), had been appointed as sole provider of
telecommunications infrastructure within the BGC except
for the “e-Square area” comprising about 20 to 25
hectares since other carriers, including Globe, were
already servicing it at that time.
Although
he declined to render an opinion on the validity of the
agreement between the BGC and PLDT, which can be
disputed in court, Gonzalez said the NTC has rightfully
noted that the Supreme Court has repeatedly struck down
claims of monopoly in public telecommunications
services.
The
right to develop the BGC belongs to Fort Bonifacio
Development Corp. (FBDC), a private corporation. In 1998
the FBDC and the Bonifacio Communications Corp. (BCC)
entered into a memorandum of agreement granting BCC “the
exclusive right to install, construct, own and maintain
all the necessary communications infrastructure and
provide the related services, including but not limited
to value-added services within the service area.”
The BCC
was previously owned principally by Smart
Communications, BCDA and FBDC until 2002. Subsequently,
Smart was acquired by PLDT and it later acquired the
shares of Smart in BCC.
In the
same year, PLDT acquired all the shares of FBDC in BCC,
so that BCC is now owned 75 percent by PLDT and 25
percent by BCDA.
The
agreement between FBDC and PLDT for the acquisition of
FBDC’s shares in BCC provides that it will be the sole
provider of basic telecommunications and related
services and will have exclusive access to the
communications infrastructure of BCC—that, under the
agreement, is the sole telecommunications infrastructure
provider while PLDT is given exclusive access to the
telecommunications infrastructure of BCC.
Gonzalez
noted, however, that a careful review of Republic Act
7227, the law creating the BCDA, does not show the grant
to BCDA of any exclusivity in the operation of
infrastructure of public utilities.
“While
Section 5(f) of R.A. 7227 states that BCDA is authorized
‘to construct, own, lease, operate and maintain public
utilities as well as infrastructure facilities,’ nothing
in RA 7227, however, shows that the grant is sole and
exclusive,” he said in his legal opinion. |
