September 25, 2017, 1:41 am
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Regulating the electricity value chain

For many, it was long overdue. The dysfunctionalities at the Energy Regulatory Commission (ERC) had for too long gone essentially unaddressed even as the accusations of regulatory impropriety within its ranks had gotten worse in inverse proportion to the headlines they created. Perhaps it was a function of public exasperation with a body that seemed unable to do anything right.

In Congress, during the deliberations on the budget of the ERC, it was proposed that the agency’s budget for the coming fiscal be reduced to P1,000.  The message was as clear as day. The slash was punitive. But was the punishment the right penalty? And did it address whatever it is the ERC had for some time been doing wrong?

For the public, afflicted with short memories and a serious propensity to focus only on the simplest sound bytes, few controversies involving the ERC merit seriously rethinking its existence. More so for an agency that is actually more powerful than the Department of Energy from whose ribcage the ERC was taken.

People might remember the investigations on collusion with a distribution utility (DU) way back in December of 2013 when power tariffs suddenly spiked as sources from the Malampaya gas fields went offline and the DU started purchasing power from more expensive generators at the Wholesale Electricity Spot Market.

Under the Duterte administration, people might remember a sordid story of suicide following controversies on the bidding of an audio-visual project within the ERC. Suspensions were meted out in that controversy. Later instances of insubordination between the Palace and certain ERC officials filled page two of a few broadsheets.

Recently, some sectors blasted the ERC when it authorized negotiated purchases with high cost generators sans open and public bidding.

It is unfortunate that the history of ERC controversies remain largely unresolved, especially where these have systemic negative impacts on the cost of power. Curiously, for the most of these, the controversies involve another equally powerful entity, this time a listed private icon critical to any business enterprise in Luzon. 

The Manila Electric Company (Meralco) exists on the basis of its congressional franchise. Within its DNA, the company has virtual political influences which it has been known to exercise both by virtue of being a monopoly in the franchise area awarded it, and by the sheer size of the corporation itself. 

As a listed company, it is answerable to three basic authorities that do not often agree with one another. First is the franchise-giver which is Congress. The second is the market served by the company. And last, as a corporation, Meralco is answerable to its shareholders.

As a corporation the measures of performance are classic textbook indicators. It seeks to maximize shareholder value and returns on investment. It increases revenues to fatten bottom lines and build up for future fixed asset development and expansion. On these, the company has been exceptionally successful.

As a DU, and a franchise at that, the company operates under given limitations, one of which is the requirement that it source power from “least cost” providers.

By analyzing the importance that Meralco plays in the electricity value chain that the ERC regulates we can appreciate the frustration of Congress that led it to punish the ERC with measures that practically abolish it.

For one, the services provided by Meralco account for what may possibly be the largest operating expense item in the income statement of almost any business enterprise covered by Meralco’s franchise.

Indulge us some simplicity. Meralco distributes the electrons passed on from those who generate it and those who transmit it. The entities who generate lie largely unregulated while those who transmit and those who distribute have to pass through the ERC. Keeping in mind the concept of regulatory capture, this simple analysis of the electricity value chain shows were margins are unregulated and can therefore be the widest relative to regulated viabilities. This also shows why any links among generators, transmission companies and the DUs should be separate and distinct. More important, it shows why collusion and connivance create conspiracies where profits shift around through effective but hidden transfer pricing protocols and therefore pass easily up and down the chain.

Because regulation plays a critical role in delineating both functions and financials in the value chain,  we can see where the ERC might be remiss should it allow negotiated and un-challenged contractual relationships among different entities in the value chain, specifically between a virtual monopoly like Meralco and its unregulated generators. Moreover, regulation rather than negotiation becomes increasingly critical given the tariffs paid by the public for the energy provided by each player in the electricity value chain.

What controversies envelope the ERC recently are questions of both market power and market abuse. It is not the reported issues of over-priced audiovisual contracts, or the question of expertise and qualifications, or its lack, among its politically-appointed commissioners. It is not even about the insubordination charges leveled against its officers by the Executive Branch.

Rather, it is connivance that leads to market abuse and are akin to economic sabotage where prohibitive and unjust tariffs amounting to millions inflicted on the public result from collusion and conspiratorial greed. Since December 2013, there have been several instances of market abuse, all on the level of economic sabotage. Most are unfortunately unresolved to this day.
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