R.A. 9235 - AN ACT GRANTING THE DIGITEL CROSSING, INC. A FRANCHISE TO CONSTRUCT, INSTALL, ESTABLISH,OPERATE AND MAINTAIN TELECOMMUNINCATIONS SYSTEM THROUGHOUT THE PHILIPPINES
Republic of the Philippines
Congress of the Philippines
Third Regular Session
Begun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand three.
REPUBLIC ACT NO. 9235 January 18, 2004 (lapsed)
AN ACT GRANTING THE DIGITEL CROSSING, INC. A FRANCHISE TO CONSTRUCT, INSTALL, ESTABLISH,OPERATE AND MAINTAIN TELECOMMUNINCATIONS SYSTEM THROUGHOUT THE PHILIPPINES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
Section 1. Nature and Scope of Franchise. - Subject to the provisions of the Constitutional and applicable laws, rules and regulations, There is hereby granted to Digital Crossing, Inc., hereunder referred to as the grantee, its successors or assigns, a franchise to construct, install, establish, operate and maintain for commercial purposes and in the public interest, throughout the Philippines and between the Philippines and other countries and territories, wire and/or wireless telecommunications systems, including but not limited to mobile, cellular ,paging, fiber optics, multi-channel distribution system (MDS), local multi-point distribution system (LMDS), satellite transmit and receive systems, switches and their value-added services such as, but not limited to, transmission of voice, data, facsimile, control sign, audio and video, information services bureau and all other telecommunications systems technologies as are at present available or will be made available though technological advances or innovations in the future; and/or construct, acquire, lease and operate or manage transmitting and receiving stations, lines, cables or systems as in or are convenient or essential to efficiently carry out the purpose of this franchise.cralawredlawlibrary
Sec. 2. Manner of Operation of Stations or Facilities. - The station or facilities of the grantee shall be constructed and operated in the manner as will, at most, result only in the minimum interference on the wavelengths or frequencies of existing stations or other stations which may be established by law, without in any diminishing its own right to use its selected wavelengths or frequencies and the quality of the transmissions or reception thereon as should maximize rendition of the grantee's services and/or the availability thereof.
Sec. 3. Authority of the National Telecommunications Commissions. - The grantee shall secure from the National telecommunications Commissions (NTC), hereinafter referred as to as the Commission, a certificate of public convenience and necessity or the appropriate permits and licenses for the construction installation, of its telecommunications systems/facilities. In issuing the certificate, the Commission shall have the power to impose such as conditions relative to the construction, operation, maintenance or service level of the telecommunication system. The Commission shall have the authority to regulate the construction and operation of its telecommunication system. The grantee shall not use any frequency in the radio spectrum without having been authorized by the Commission. Such certificate shall state the areas covered and date the grantee shall commence the service. The Commission, however, shall not unreasonably withhold or delay the grant of any such authority, permits or licenses.
Sec. 4. Ingress and Egress. - For the purpose of erecting and maintaining poles or other supports for said wires or other conductors for the purpose of laying and maintaining underground wires, cables or other conductors, it shall be lawful for the grantee, its successors or assigns with the prior approval of the Department of Public Works and Highways (DPWH), to make excavations or lay conduits in any of the other places, highways, streets, lanes, alleys, avenues, sidewalks, bridges of said provinces, cities and/or municipalities: Provided, however, That a public place, highway, street, lane, alley, avenue, sidewalk or bridge, disturbed, altered or changed by reason of the erection of poles or other supports or the underground laying of wires, other conductors or conduit, shall be repaired and replaced in a workmanlike manner by said grantee, its successor or assigns, in accordance with the standards set by the DPWH. Should the grantee, its successor or assigns, after ten (10) days notice from the said authority, fail, refuse or neglect to repair or replace any parts of a public place, road, street, highway,, lane, alley, avenue, sidewalk or bridge altered, changed or disturbed by the said grantee, its successor or assigns, then the DPWH shall have the right to have the same repaired and placed in good order and condition at double the expenses to be charged against the grantee, its successors or assigns.
Sec. 5. Responsibility to the Public. - The grantee shall conform to the ethics of honest enterprise and shall not use its stations/facilities for obscene or indecent transmission or dissemination of deliberately false information or willful misrepresentation, or assist in subversive or treasonable acts.
The grantee shall provide basic or enhanced telephone service in any municipality in the Philippines where it has an approved certificate of public convenience and necessity for the establishment, operation and maintenance of a local exchange service, without discrimination to any applicant therefore, in the order of the date of their applications, up to the limit of the capacity of its local telephone exchange, and should the demand of the telephone service at any time increase beyond the capacity thereof, the grantee shall increase the same to meet such demand: Provided, That in case the total demand to be satisfied by the expansion in less than the smallest viable local exchange available in the market as determined by the Commission, the grantee shall not obliged to furnish such service unless the applicant for telephone service defrays the actual expenses for the installation of the telecommunications apparatus necessary for such services and in such case, the Commissions may extend the time within which the grantee shall furnish such services.
The grantee shall operate and maintain all its stations lines, cables, systems and equipment for the transmission and reception of messages, signals and pulses in satisfactory manner at all times, and as far as economical and practicable, modify, improve or change such stations, lines, cables, systems and equipment to keep abreast with the advances in science and technology.
Sec. 6. Rates for Services. - The charges for Telecommunications services of the grantee, except the rates and charges on those that may hereafter be declared or considered as non regulated services, weather flat rates or measured rates or variant thereof, shall be subject to the approval of the Commission or its legal successor. The rates to be charged by the grantee shall be unbundled, separable and distinct among the services offered and shall be determined in such manner that regulated services do not subsidize the unregulated ones.
Sec. 7. Right of Government. - A special right is hereby reserved to the President of the Philippines, in times of war, rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to temporarily take over and operate the stations, transmitters, facilities or equipment of the grantee, to temporarily suspend the operation of any station, transmitter, facility, or equipment in the interest of public safety, security and public welfare, or to authorize the temporary use and operation thereof or any agency of the government, upon due compensation to the grantee fir the use of said stations, transmitter, facilities or equipment during the period when they shall be so operated.
The radio spectrum is a finite resource that is part of the national patrimony and the use thereof is a privilege conferred upon the grantee by the State and may be withdrawn anytime after due process.
Sec. 8. Term of Franchise. - This franchise shall be for a term of twenty five (25) years from the date of effectivity of this act, unless sooner revoked or cancelled. This franchise shall be deemed ipso facto revoked in the event the grantee fails to comply with any of the following conditions.
(a) Commence operations within three (3) years from the approval of its operating permit or provisional authority by the NTC;
(b) Operate continuously for two (2) years; and
(c) Commence operations within five (5) years from the effectivity of this Acts.
Sec. 9. Acceptance and Compliance. - Acceptance of this franchise shall be given in writing within sixty (60) days from the effectivity of this Acts. Upon giving such acceptance, the grantee shall exercise the privilege granted under this Acts. Non-acceptance shall render the franchise void.
Sec. 10. Bond. - The grantee shall file a bond issued in favor of the NTC, which shall determined the amount, to guarantee the compliance with and fulfillment of the conditions under which this franchise is granted. If after five (5) years from the date of the approval of its permit by the Commission, the grantee shall have fulfilled the same, the bond shall be cancelled by the Commission. Otherwise, the bond shall be forfeited in favor of the government and the franchise ipso facto revoked.
Sec. 11. Right of Interconnection. - The grantee is hereby authorized to connect or demand connection of its telecommunications systems to any other telecommunications systems installed, operated and maintained by any other duly authorized person or entity in the Philippines for the purpose of providing extended and improved telecommunications services to the public, under such terms and conditions mutually agreed upon the parties concerned and the same shall be subject to the review and modification of the Commission.
Sec. 12. Tax Provisions. - The grantee, its successor or assigns, shall be subject to the payment of all taxes, duties, fees or charges and other impositions under the National Internal Revenue Code (NIRC) of 1997, as amended, and other applicable laws: Provided, That nothing herein shall be construed as repealing any specific tax exemptions. Incentives or privileges granted under any relevant law: Provided, further, That all right, privileges, benefits and exemptions accorded to existing and future telecommunications franchises shall likewise be extended to the grantee.
The grantee shall file the return with the city or province where is facility is located and pay the taxes due thereon to he Commissioner of internal Revenue or his duly authorized representatives in accordance with the NIRC and the return shall be subject to audit by the Bureau of Internal Revenue.
Sec. 13. Gross Receipts. - The grantee, its successor or assigns, shall keep a separate account of the gross receipts of the business transacted by it and shall furnish the Commission on Audit (COA) and the National Treasury a copy of such account not later than thirty-first (31st) day of January of each year for preceding twelve (12) months.
Sec. 14. Books and Accounts. - The books and accounts of the grantee, its successor or assigns, shall always be open to the inspection of the Commissioner on Audit or his authorized representatives and it shall be the duly of the grantee to submit to the COA two (2) copies of the quarterly reports on the gross receipts, the net profits and the general condition of the business.
Sec. 15. Warranty in Favor of National and Local Governments. - The grantee shall hold the national, provincial, city and municipal, governments of the Philippines harmless from all claims, accounts, demands of actions arising out of accidents or injuries, whether to property or to person, caused by the construction or operation of the station, transmitters, facilities and equipment of the grantee.
Sec. 16. Sale, Lease, Transfer, Usufruct, etc. - The grantee shall not lease, transfer, lease, grant the usufruct of, sell nor assign this franchise or the rights and privileges acquired there under to any person, firm, company, corporation or other commercial or legal entity, nor merge with any other corporation or entity, nor shall the controlling interest of the grantee be transferred, whether as a whole or in parts and whether simultaneously or contemporaneously, to any such person, firm, company, corporation or entity without the prior approval of the Congress of the Philippines. Any person or entity to which this franchise is sold, transferred or assigned shall be subject to the same conditions, terms, restrictions and limitations of this Act.
Sec. 17. Dispersal of Ownership. - In accordance with the constitutional provision to encourage public participation in public utilities, the grantee shall offer at least thirty per centum (30%) of its outstanding capital stock or a higher percentage that may hereafter be provided by law in any securities exchange in the Philippines within five (5) years from the commencement of its operations. The public offering shall comply with the rules and regulations of the Securities and Exchange Commission. Noncompliance therewith shall render the franchise ipso facto revoked.
Sec. 18. Equality Clause. - Any advantage, favor, privilege, exemption or immunity granted under existing franchise, or may thereafter be granted, shall ipso facto become part of this franchise and shall be accorded immediately and unconditionally to the herein grantee: Provided, however, That the foregoing shall neither apply to nor affect the provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise or the type of service authorized by the franchise.
Sec. 19. Separability Clause. - If any of the sections or provisions of this Act is held invalid, all the other provisions not affected thereby shall remain valid.
Sec. 20. Repealability Clause and Nonexclusivity Clause. - This franchise shall be subject to a amended, alternation or repeal by the Congress of the Philippines when the public interest so required and shall not be interpreted as an exclusive grant of the privileges herein provided for.
Sec. 21. Reportorial Requirement. - The grantee shall submit an annual report to the Congress of the Philippines on its compliance with the terms and conditions of the franchise and on its operations within sixty (60) days from the end of every year.
Sec. 22. Effectivity Clause. - This Act shall take effect fifteen (15) days from the date of its publication, upon the initiative of the grantee, in at least two (2) newspapers of general circulation in the Philippines.
JOSE DE VENECIA JR.
This Act which originated in the House of the Representatives was finally passed by the House of the Representatives and the Senate on October 7, 2003 and September 8, 2003, respectively.
OSCAR G G. YABES
ROBERTO P. NAZARENO
Approved: January 18, 2004 (lapsed)
President of the Philippines
Lapsed into law on January 18, 2004
Without the signature of the President,
In accordance with Article VI,
Section 27 (1) of the Constitution