Militant solons urge CA to reverse ruling favoring Therma Mobile Inc

PARTYLIST lawmakers on Thursday asked the Court of Appeals to reverse a Pasig Court’s ruling that stopped the Philippine Electricity Market Corporation from collecting P234.9-million in fines from Therma Mobile Inc. (TMO), an Aboitiz Power Corp. subsidiary, for withholding P4.16-kWh power hike in December 2013.

The 18-page intervention filed by Bayan Muna Representatives Neri Colmenares and Carlos Zarate was in support of the government’s petition assailing the Pasig court’s petition.

Intervenor lawmakers said special rules on arbitration as raised by the lower court are not applicable because PEMC, the administrator of the wholesale electricity spot market (WESM) and TMO, has no arbitration agreement.

“A contract is necessary before the parties could undergo arbitration, through an agreement to submit to arbitration or through a submission agreement. None of these is present in this case,” the intervenors said.

They added that WESM Rules and the WESM Dispute Resolution Market Manual (DRMM) are not applicable in this case because these are limited to commercial issues between PEMC and WESM participants.

They pointed out that PEMC’s investigation on TMO is based on the state’s mandate to uphold the Constitution, the Electric Power Industry Reform Act (EPIRA) Law and other related laws.

“Clearly, this is not of a commercial nature but one which impinges on public rights and interest,” the lawmakers said.

Intervenors said TMO took advantage of the month-long shutdown of Malampaya natural gas facilities in 2013 and withheld the supply of electricity causing its price to increase.

In February, PEMC sanctioned TMO with a P234.9-million fine for withholding capacity, prompting the Manila Electric Company (Meralco) to charge consumers P4.16 more per kWh.

Last month, the Pasig court blocked PEMC’s fine against TMO, granting the latter’s petition anchored on its claim that its rated capacity at the time “could safely, reliably and consistently deliver” its required output of 100MW.

Acting on petitions of several lawmakers, the Supreme Court stopped the power rate hike on the same month it was to be imposed. The temporary restraining order was later extended indefinitely.

The Energy Regulatory Commission had separately found that the WESM prices during the Malampaya shutdown should be 70 percent lower.

“Clearly, both the Supreme Court and the ERC found the unprecedented rate hike highly irregular… [T]here is sufficient basis for saying that there is prima facie evidence of collusion and anti-competitive behavior among power players, including herein respondent (TMO),” read the Bayan Muna petition.

“Thus, in order to ensure that abuses or threats to public interest, such as unjust rate impositions, are not repeated, sanctions, and not mere investigations, must be imposed,” it said.

The ERC directed the PEMC to investigate TMO and other WESM members after power prices increased during the shutdown of the Malampaya gas facility, which enraged consumers and prompted protest actions.

The Malampaya shutdown forced the Manila Electric Company to buy electricity from the WESM which resulted in a higher generation charge of P4.14 per kilowatt-hour.

The Supreme Court then issued a temporary restraining order on December 23, 2013 stopping the power rate increase.