All existing telco laws must be integrated into one to avoid conflicting provisions when legislators pass the Open Access in Data Transmission Bill.
“Organizing outdated laws on telecommunications in one comprehensive law will prevent conflicting provisions,” stressed Atty. Ariel Tubayan, Globe Telecom Inc. Senior Legal Counsel in a recent virtual meeting with the ICT Committee of the Management Association of the Philippines.
First of all, the Open Access Bill offers no clarity in terms of foreign ownership restrictions, he pointed out.
Any law lifting foreign ownership restrictions will require an amendment of the economic provisions of the Constitution, Tubayan warned.
In addition, the proposed legislation does not expressly repeal Section 16 of Republic Act 7925, which requires a congressional franchise to operate as a public telecommunications entity.
Data transmission falls squarely within the definition of telecommunications under Republic Act 7925.
Furthermore, it does not seek to revoke Section 1 of Republic Act 3846, which requires a franchise for the operation of a radio station or to use radio frequencies.
Vertically integrated telcos like Globe use the same network for carrying voice and data traffic.
If the Open Access Bill is passed, this will result in the unduly onerous situation where telcos will be constrained to comply with two separate and conflicting laws - one for voice and another for data.
Voice will require a franchise while data will be exempt from such requirement.
However, in reality, voice is now primarily carried over data.
Such dual legal governance will negate the technology neutrality principle under RA 7925 because data traffic will be favored over circuit switched traffic.
“The Open Access bill contains many aspirational objectives that greatly depend on a strong and independent National Telecommunications Commission (NTC)," Tubayan observed.
"Moreover, it discriminates on what may be the subject of co-use and collocation because it excludes spectrum use from resources that may freely be shared.”
At present, three current versions of the proposed bill exist – one pending before the House of Representatives, which has passed second reading, but reconsidered for some amendments.
At the Senate, the bill has two versions, separately filed by Senator Ralph Recto and Senator Bong Revilla.
All versions aim to carve out data transmission from the coverage of telecommunications, which, under existing laws, are considered public utilities subject to foreign ownership restrictions and require a congressional franchise.
“There is a need to strengthen the regulatory powers of the NTC by making it an independent body with fixed terms of office, similar to the Energy Regulatory Commission," Tubayan counseled.
"It is also a must to strengthen its power to recall frequencies from those who sit on them, those who do not use the radio frequency allocated to them."