THERE’s no gainsaying it any longer. Cyber technology is the ultimate wonder of the age. It has spawned the maximum space and milieu for the creation and dissemination of information. It has negated polarization in the physical dimension, including that intimate distance between the genitals of the opposite sexes. For all we know, cyber expertise may be coming close to breaching further that already utter achievement of long-distance touching to one of penetration as well.
But forget about science for the time being. All that awesome power of digital optics is a given. What is not apparent are the hands that rock the cradle of profits in the cyber business. In the Philippines, those hands conveniently take refuge in the ambiguities of the law whereby to optimize returns from their income-generating ventures.
At the moment, it would appear that the digital business is covered only by one area of legislation, and that is the law on telecommunications, Republic Act 7925, known as the Public Telecommunications Policy Act of the Philippines.
A close perusal of the law would disclose its paramount concern, which is the exclusive award of the operation of telecommunications businesses to the private sector.
Article II, Section 4 of the Telecommunications Act, among its notable provisions, state:
e) Public telecommunications services shall be provided by private enterprises. The private sector shall be the engine of rapid and efficient growth in the telecommunications industry;
f) A healthy competitive environment shall be fostered, one in which telecommunications carriers are free to make business decisions and to interact with one another in providing telecommunications services, with the end in view of encouraging their financial viability while maintaining affordable rates;
g) A fair and reasonable interconnection of facilities of authorized public network operators and other providers of telecommunications services is necessary in order to achieve a viable, efficient, reliable and universal telecommunications services;
Quoting the above provisions serves only to emphasize the law’s utter partiality to private capitalists in deriving gains from the telecommunications business. But otherwise, the law in its entirety seems to have been crafted, yes, for the development of telecommunications in the country, but for such development to accrue from the exploitation of the Filipino people. This other provision attests to this:
d) Rates and tariff charges shall be fair, just and reasonable and for this purpose, the regulatory body shall develop tariff structures based on socio-economic factors and on financial, technical and commercial criteria as measures to ensure a fair rate of return and as a tool to ensure economic and social development;
But two questions in this regard arise. One, just how “just and reasonable“ are those rates and tariff charges?
Legislative language being more concerned with generalized niceness than with hard specifics would tend to deceive. Is it “just and reasonable” for the telecommunication entities, as the law terms it, or “just and reasonable” for the consumers of the telecommunication services. The Telecommunications Act does not make any clear-cut delineation of that terminology in the cited provision.
But the truly telling question is, who determines what is “just and reasonable”? The telecommunication entities or the consumers of those entities’ services?
On the principle of “government of the people, by the people and for the people,” it is NTC that should render that task. In the conduct of business by Smart, for instance, are the rates which it charges its clients NTC-prescribed? Or are they self-styled, with the NTC merely stamping them with its imprimatur to make those rates conform to the requisites of the law.
Or are there, in fact, even such NTC-merely-stamped rates in operation? Are those rates rather just the handiwork of the telecommunication entities themselves, which by themselves alone oblige their consumers to shoulder increasingly each time?
These questions are being raised in order to address two major concerns. One is the legality of the income-generation schemes of the telecommunications entities. In this respect, the corollary question is advanced: Are telecommunication services a category of public utilities, in which case they must conform to the legal guidelines for engagement in that area of business. One such guideline is the use of the metering system in measuring services rendered by the public utility entity, Meralco or Manila Water, for instance; or even the tariff rates issued by the Land Transportation Franchising and Regulatory Board which are computed per distance traversed in a public vehicle.
On the other hand, in the context of those telecommunication services being marketed as commodities, which in fact they are as regularly transacted in loading stations and sari-sari stores even in the innermost nooks inhabited by the large masses of the informal sectors, are telecommunication services retail merchandise? If so, then they must be governed by the Retail Trade Law, which mandates, among other requirements, the issuance of receipts per sale of merchandise. In formal loading stations like convenience stores, loading is done by machine which officially registers the amount of load and issues corresponding receipts reflected as sales of the store. This method satisfies the requirement of the Bureau of Internal Revenue (BIR) for the issuance of receipts for the sales made. But that would be taxing the store, not the digital load provider. It is this tax at source which seems lacking in the chain from producer to consumer of telecommunication services, and it can amount to staggering billions in unrealized government revenues.
Might not President Rodrigo Duterte personally address this concern? Many quarters tend to laud him for the alleged success of his campaign against illegal drugs. In the ultimate reckoning, the great cheat in taxes that is possibly being committed by the digital networks could be inflicting harm on the nation far greater than that done by small-time drug dependents. He need not kill any telecommunication services providers. Just make them pay the right taxes.