PARTY-LIST group Bayan Muna on Tuesday filed a petition before the Supreme Court (SC) seeking to exclude anti-monopoly provisions in the retail competition and open access (RCOA) policy of the government from the coverage of the temporary restraining order (TRO) that it issued in February 2017.
In a 31-page petition-in-intervention, Bayan Muna, through its chairman Neri J. Colmenares, sought the Court’s clarification that the TRO does not cover the provisions not assailed in the original petition filed by the Philippine Chamber of Commerce and Industry (PCCI) seeking to the stop the implementation of the RCOA policy which was supposed to be implemented by the Department of Energy (DOE) and Energy Regulatory Commission (ERC) in the power industry.
Under the RCOA policy, big power consumers are required to source their electricity supply from any of the 23 retail electricity suppliers (RES) designated by the ERC.
The petitioner recounted that on December 27, 2016, the PCCI filed a petition seeking to declare null and void the DOE order and ERC resolutions implementing the mandatory migration of contestable customers from Meralco to other electricity suppliers.
It noted that in the said petition, the PCCI did not assail all the provisions of the RCOA but only certain sections of it.
However, the TRO issued by the SC covers DOE Circular DC2015-06-0010, Series of 2015, and ERC Resolutions 5, 10, 11 and 28, Series of 2016, thus, practically restraining the entire RCOA.
The said circular and resolutions were issued to fully implement the RCOA. Due to the TRO, the petitioner said the ERC has not even issued licenses to small companies applying for RES, thus, giving Meralco’s MPower and other RES with existing license the advantage, as they alone are allowed to transact business with the contestable customers.
“Due to the TRO, there s a ‘chilling effect’ in the implementation of the DOE and ERC resolutions. The sweeping TRO, wittingly or unwittingly, has given monopolies like Meralco the advantage, as potential contestable customers remain captive under its monopoly for fear they may be violating the TRO,” Bayan Muna stated.
The petitioner argued that the implementation of the TRO on the entire provisions of the RCOA, including those which were not questioned, “is without legal or constitutional basis.”
“It is imperative for this Honorable Court, therefore, to expressly declare that those provisions not assailed by petitioners are valid and remain in force. Otherwise, other provisions of RCOA, which could impact on the continued monopoly of Meralco, will have been restrained to detriment of the public interest,” the petitioner said.
Specifically, the petitioner is seeking the exclusion of Section 3 of the DOE Circular, which states that all electricity end-users with an average demand ranging from 501 kilowatts (kW) or below 750 kW for the preceding 12 months may be allowed to choose their respective RES; Article II, Section 1 of ERC Resolution 10, which states that those who have been issued certificates of contestability shall be allowed to contract with any RES on a voluntary basis; Article II, Section 1 of ERC Resolution 10, which says that contestable consumers with at least 750 kW aggregate demand be allowed , not compelled to contract with any supplier and not just monopolies like Meralco; Article II, Section 3 of ERC Resolution 10, which states that even end users with an average monthly peak demand of 750 kW shall have the option of leaving monopolies like Meralco; an Article II, Section 4 of ERC Resolution 10, which states that distribution utilities like Meralco are required to submit information on which among its captive customers have qualified to be a contestable customer; and Article II, Section 2 of ERC Resolution 5, which states that a RES, which is an affiliate of a generation company or a distribution utility, must have separate juridical entity separate from the former because the business of distributing and generating electricity is different from the retail supply business.
“The TRO has put on hold, wittingly or unwittingly, a number of provisions, which are unrelated to the issue raised in the petition, to the extreme advantage of Meralco,” the group insisted.
“Hence, the need to modify the issued TRO,” it added.