DEPARTMENT of Information and Communications Technology (DICT) Acting Secretary Eliseo M. Rio, Jr. admitted the government cannot keep the telcos from building their own towers.
“Yes, it is in their franchise and they cannot be prevented to put up their own infra including towers. We can’t come out with a Department policy or order that we cannot implement because we can be sued in court. We will have a dialogue with the telcos on how to resolve this,” said Rio.
Rio previously said the DICT targets to finalize the common tower sharing policy being pushed by Presidential Adviser for ICT Ramon Jacinto in November.
Earlier, Globe Telecom and Smart Communications, Inc branded as baseless and illegal the proposal of Jacinto to limit to two the number of independent and private companies that could be authorized to build cell site towers in the country.
In a separate but similar position against towercos duopoly, the two telcos insisted that the plan of Jacinto will violate their congressional franchise.
In their position paper regarding the DICT and NTC Draft Joint Memorandum Circular (“MC”) on the policy, rules and regulations on common and shared infrastructure in the public telecommunications market, Globe and Smart maintained they cannot be prohibited from constructing their own telecommunications towers.
Globe and Smart further stated that the draft MC violates their franchise as they are expressly granted the right to construct telecommunications towers.
“Basic is the principle that a mere executive issuance, like a memorandum circular, cannot amend a legislative enactment, e.g. R.A. No. 10926; the former cannot purport to do more than implement the later. Memorandum circulars must always be in harmony with the law. And in case of conflict between an executive issuance and a law, the latter must prevail,” the two telcos said.
The DICT presented last month a draft MC, prepared by Jacinto, which seeks to limit the building of telco towers to only two independent and private tower companies.
Smart noted that efficient tower markets should allow different ownership models, including ownership by telecommunications companies.
Citing cases in United States, Nigeria, Ghana, India, Indonesia and Germany where telcos are allowed to own towers, Smart said the government’s objectives in issuing the infrastructure sharing policy “can still be achieved even without prohibiting (telcos) from building their own towers pursuant to their franchise.”
The two telcos added that the independent towercos cannot be limited to two because it is anti-competitive and is not practiced by efficient tower markets, and will violate R.A. No. 10667 and R.A. No. 7925.
“Under R.A. No. 10667 or the Philippine Competition Act, the State recognizes that the provision of equal opportunities to all promotes entrepreneurial spirit, encourages private investments, facilitates technology development and transfer and enhances resource productivity. Unencumbered market competition also serves the interest of consumers by allowing them to exercise their right of choice over goods and services offered in the market.
“But limiting the number of TowerCos to two (2) unfairly excludes other companies from playing. This ultimately leads to a duopoly resulting in efficiencies. While R.A. 10667 seeks to create a competitive market, the proposed MC assists the towercos in unfairly obtaining market power.