The Senate recently approved a bill amending the Public Service Act to allow full foreign ownership in key industries like transport and telecommunication.

With 19 votes, the Upper House voted to pass Senate Bill No. 2094 which will pave the pay for 100% foreign ownership of railways, airlines, shipping firms, subways, and telecommunications. The 1987 Constitution puts a 40% foreign ownership on public utilities. The new bill is making a distinction between public utilities and public services and frees up the latter for 100% foreign ownership

Senator Grace Poe, one of the bill’s principal authors said that “The main purpose of this measure is to provide consumers with choices and I believe that, by opening our economy to a diverse set of investors, we could provide our fellow Filipinos with more and better choices,” 

The new bill still treats three main industries as public utilities as they are believed to be “natural monopolies.” These industries include Water Works and Sewerage, Transmission of Electricity, and Distribution of Electricity, and will remain subject to the 60-40 rule on foreign ownership.

I have written about this bill in the past where I have questioned why the Senate is treating electricity distribution as a natural monopoly. I have argued that natural monopoly cannot and should not be regulated as it is a market condition. Natural monopolies, after all, exist due to either high start-up costs or powerful economies of scale. Natural monopolies only exist when a single firm can serve the entire market at a lower cost instead of having multiple firms competing for the same market.

Again should the Philippines still classify power distribution classified as a natural monopoly despite the advancements in technology and global trends?

All we need to do is look at other countries. Take the United States for example where several companies heavily investing in non-wire alternatives (NWAs), which are pushing both start-up and fixed costs down. Several complines like Duke Energy and Con Edison can avoid spending billions on transmission infrastructure by investing heavily in NWAs combined with distributed energy resources (DERs) and mini-grids.

New technologies, after all, are removing barriers to entry in the distribution of electricity, which means more players can enter the market more easily given the lower upfront costs of distributing power.

What we are seeing here is not a case of a natural monopoly actually driven by the market but rather a legal monopoly created by lawmakers and regulators. This is a classic example of what Nobel Prize winner Vermon Sith pointed out in this paper “Currents of Competition in Electricity Markets” where he said that “Regulation has been applied far too broadly to the electric power industry. As a result, policies intended to restrain monopoly power have instead propagated that power.”

In a separate development, President Duterte has also signed an executive order (EO) 156, an electrification EO to enable electric cooperatives to pursue rural electrification. In the EO, the president stresses that underperforming electric cooperatives (ECs) and distribution utilities (DUs) are hampering the electrification efforts of the government. 

Aside from transferring the powers to take over the DU’s and EC’s operations from the National Electrification Administration to the Office of the President, the EO also ordered all DUs to submit a comprehensive masterplan for the total electrification of their respective franchise areas including a detailed inventory of all inadequately served areas and action plans to achieve complete electrification.

The EO also directs the Department of Energy (DOE) to craft procedures for the participation of local government and communities in determining whether their areas are inadequately served.

But perhaps an alternative route is to open up competition for the same franchise area. Currently, the government is only allowing a single firm for a franchise area, which means that the franchise holder does not have incentives to improve its services or to innovate. Again, our regulations are what’s creating legal monopolies as we can, in fact, have healthy competition in franchise areas only if the government allows it.

It’s great that the EO is asking the DOE to promulgate regulation for the entry and integration of DERs, microgrids, and other alternative service providers in the electric power industry, but we need as well to consider allowing more competition in the same franchise area. Otherwise, consumers will have to wait for DUs to be deemed as inadequate before they can get alternative DUs, and even then they only get served by a single company, which still will have the monopoly in the franchise area.

Plus, we can actually help solve the problem of lack of access to electricity if we do not create legal monopolies as what the Senate bill is doing to the electricity distribution. We need the technology and expertise of foreign companies in developing DERs, microgrids, NWAs, and other new tools that can easily provide power to off-grid areas.

A reactor in our energy forum sponsored by UPVI last October, Bill Lenihan, CEO of ZOLA Electric, a company that offers power solutions in Africa stressed that centralized grid systems won’t solve emerging markets’ problems. He added that countries like the Philippines must make DERs and microgrids as the main source of power in many underserved areas in the country.

However, developing these technologies will again, as I have mentioned, require funding and technologies that foreign companies can provide. To classify power distribution as a natural monopoly when it is not is like taking away the chance from Juan Dela Cruz from far-flung areas to have access to electricity and lessen his chance of improving his economic condition and that of his community at the soonest time possible.