KP: Nobly aimed, constitutionally flawed (2)
Last Monday, I raised three major issues in the Konektadong Pinoy (KP) bill recently passed by Congress and awaiting presidential action. These are: (1) violation of, and consequential inability of the government to avail of the protection granted by Article XII, Section 17 of the Constitution; (2) violation of the equal protection clause under Article III, Section 1; and (3) violation of the principle of technological neutrality. Today, let me take up three more important legal and policy questions involving (1) infrastructure access, (2) delegation of authority, and (3) the treatment of private property.
ON THE FIRST ITEM, Sections 7, 12, and 13 of the KP require public telecommunications entities (PTEs) to provide access to their infrastructure to registered data transmission industry participants (DTIPs), even if the PTEs may not be dominant or have not engaged in anti-competitive conduct. The standard used is whether access is “necessary” to allow DTIPs to compete—a radical departure from the “indispensability” test used in global antitrust jurisprudence.
Under the essential facilities doctrine, compulsory access is justified only when the facility cannot reasonably be replicated, the provider is dominant, and refusal would eliminate competition. These limitations aim to foster competition without discouraging private investment.
The KP, however, adopts a lower threshold, dispensing with the showing of dominance or abuse. It also requires a “Reference Access Offer” detailed enough to eliminate the need for negotiation. This significantly departs from established competition and property jurisprudence. If infrastructure built using private capital must be opened to competitors without compensation based on market value or a chance to negotiate commercial terms, questions arise about regulatory taking under Article III, Section 9 of the Constitution.
The Supreme Court has held that regulatory taking does not always require physical appropriation. It also occurs when a private party is substantially deprived of the beneficial use or value of its property (Southern Luzon Drug Corp. v. DSWD, April 25, 2017). While the State may regulate in the public interest, the regulatory measures must meet the standards of fairness, necessity, and proportionality. A rule that compels telcos to subsidize new entrants by surrendering core assets without clear justification or just compensation is simply unconscionable.
Moreover, the KP introduces implied amendments to existing laws—particularly the Philippine Competition Act—without clear legislative notice. Though the bill’s title refers to a framework for data transmission, it alters competition thresholds and institutional roles. These provisions violate the one-subject-one-title rule in Article VI, Section 26(1) of the Constitution.
ON THE SECOND ITEM, delegated authority, Section 5(e) of the KP empowers the Department of Information and Communications Technology (DICT) to define “other segments” of digital infrastructure subject to access requirements, but does not provide substantive standards. Constitutionally, Congress may delegate regulatory functions. However, it must provide sufficient standards to avoid undue discretion—a principle rooted in the nondelegation doctrine in our Charter.
Further, the KP redistributes regulatory roles across multiple agencies. Traditionally, the National Telecommunications Commission has been the primary regulatory authority. The KP alters this by giving new mandates to the DICT, the Department of Economy, Planning, and Development, and the Philippine Competition Commission. While interagency cooperation is not inherently problematic, vague lines of authority risk delays, overlapping mandates, and diluted accountability. In a complex and fast-moving sector like telecommunications, clarity and coherence in governance are essential.
ON THE THIRD ITEM, the KP’s transitory clause states that legislative franchises shall remain valid only to the extent they do not involve data transmission. This clause jeopardizes the rights of franchise holders, who have made significant investments based on existing grants, a clear violation of the constitutional guarantees of due process and the non-impairment of contracts.
Franchises issued by Congress are not mere regulatory licenses. They carry legal and financial expectations upon which infrastructure, financing, and operations are planned. A law that modifies these rights midstream erodes investor confidence and undermines the predictability essential for long-term infrastructure development.
To stress, I do not oppose the KP’s noble aims. Quite the contrary, I believe in its goals of increased access, competition, and innovation. But reforms must remain within constitutional bounds. Otherwise, the KP’s implementation and the consequent corrections thereof by Congress will be unduly delayed.
The Constitution does not hinder progress; it provides the very structure through which reforms gain legitimacy. The Philippines deserves a connectivity law that is forward-looking yet firmly grounded; one that meets the public’s needs while upholding fairness, protecting property, and ensuring clear regulatory roles.
