Meralco’s Self-Dealing is Rent-Seeking on its Distribution Franchise. It is Abuse of Market Power and Harmful to Consumers.

David Celestra Tan, MSK
13 November 2016

Meralco has a franchise and monopoly for the distribution of electricity in the mega area of Metro-Manila and adjoining provinces. Its distribution franchise though did not come with the right to also monopolize power generation. Yet it is on its way to owning through its own generation company, Meralco PowerGen at least 90% of its energy needs. That it is able to do by rent-seeking on its distribution franchise.

Meralco, that serves the largest commercial and industrial hub of the Philippines, has a power demand of 6,000mw and energy requirement of 30 Billion kwh a year. That’s equivalent to 75% of the energy needs of Luzon and by now about 64% of the whole country. It is a lot of buying power! (pun or no pun!). A hulking 800 pound gorilla in the power sector.

Meralco is supposed to be a regulated public service monopoly operating under government fiat. As a Monopoly it is protected from many business risks. Forex and head-on competition in its service area. If it is hit by a typhoon, all repair costs are passed on to the consumers. Power is stolen from it or it loses due its own inefficiency and it is passed on to the consumers as systems loss. Its own expansion under the PBR scheme is charged to the consumers in advance. For all those market risk privileges and guaranteed legal return on investment, its government granted franchise requires that in return it serves the public interest at least cost and not abuse its market power.

Generation Gate Keeper

Its market power and domination by themselves are not evil. In fact they can be used for the public good if only Meralco would be satisfied with its guaranteed legal profits as a public service utility franchise holder and dedicate itself to providing electricity to the public in the “least cost” manner. This can be achieved only if it buys that market volume on arms length basis and transparent and competitive manner. But Meralco is a gentle giant that is not to be. Power generation is so lucrative especially if you negotiate with yourself. I guess the MVP Group cannot help itself. The Epira Law assigned the ERC regulators to protect the consumers and assure competitive and prevent market abuses and cartelization.

The Epira Law under Section 45 allowed Meralco to contract up to 50% of its energy needs with an affiliated company and the law is silent on whether competitive bidding is required although it can do so if it is faithful to its mandate for least cost power. Consequently, Meralco effectively got the power to choose who they will buy from. The veritable gatekeeper to their 6,000mw market power. And since they are the largest market in the whole country, effectively they get to choose who gets into the power generation business. That is true market power.

No Power Supply Contract, No Project. And they are rent-seeking to the fierce extent that even the Lopez Group never dared to go.

Wikipedia says Rent-seeking implies extraction of uncompensated value from others without making any contribution to productivity. In Meralco’s case it is getting unwarranted benefit in power generation projects that it awards for free as a result of its control of the Meralco market as the franchised distribution utility monopoly.

Power Generation Franchise

The foundation of any power generation project is the long term power supply contract. That’s the equivalent of a power generation franchise. In this case it is not the Congress giving the franchise but Meralco at its own discretion by its market power as the distribution utility buyer. Who is really the buyer of the generation supply, Meralco or the consumers? Technically it is really the consumers buying because they are the ones paying the negotiated rates. If something goes wrong with the contract, and if Meralco overcontracts, all the cost consequences are paid for the consumers. Meralco is only acting as buying agent for the consumers. It has serious conflict of interest in buying that power from itself.

Truly independent power generation companies take years and lots of research, pre-engineering, economic and financial packaging work, project development and marketing expenses to win a contract. In the case of Meralco, it can bring to the table the power supply contract in its back pocket because it is the distribution utility with full discretion to choose its projects and partners.

The “Carried Interest” Quid Pro Quo

In the power generation industry the party who brings to the table the power generation contract (or franchise) brings something very valuable and gets compensated either in cash or shares. Of course it has economic value. If its shares ownership of the project company, it is called “carried interest” or free equity. This can range from 15% to 25% of the project ownership. It is on higher side if the power supply contract got sweetheart terms and rates.

The MVP Group is obviously fully aware of this value. Perhaps it was one of the value propositions when the MVP group bought Meralco from the Lopez Group. It is evident that they intended all along to exploit this market power to dominate power generation since early on they already organized the not so subtly named Meralco PowerGen with an openly announced target of 3,000mw.

Given the MVP Group’s legendary “deal making” toughness, we can bet they will exact the highest free equity or economic rent from each Meralco contract they give out.

The MVP Groups ability to exact favorable and lucrative benefits from power generators seeking contracts with Meralco is rent-seeking on the public service distribution franchise that the government granted to Meralco. This is inimical to the public interest since the net result is the consumers would be paying more than what they should have without the economic rent to the MVP group.

In the case of electric coops in Mindanao, consumer groups there are complaining of their EC’s management and board of directors for negotiating high rates on generation contracts. In this case it is unlikely they will get carried interest but other benefits for their power to award the contract. Such is the evil that a serious CSP implementation will prevent.

In the 460mw expansion of the Mauban coal power complex, insiders is reported to have shared that the Thailand owners originally approached Meralco for a power supply contract with a price of P3.80 per kwh. By the end of the negotiations, the project became owned 51% by Meralco PowerGen with a new sweetheart price of P4.30 per kwh. The ERC approved it at P4.26 per kwh still higher than the 3.78 per kwh that the Northern Coops got for only 135mw.

The seven (7) midnight power supply contracts signed by Meralco totaling 3,551mw with five (5) partners are all controlled by Meralco PowerGen with 51% (except the 49% in the JV with Ramon Ang of San Miguel). Most of them were signed in one day on April 26, 2016 with similar language, pricing formula, and legal template.

Those 3,551mw coal plants will have a total project cost of about US$10 Billion (or Pesos 480 Billion). It will probably be financed 75% instead of the normal 70% because of its sweetheart prices and contract terms. So its equity of 25% will be equivalent to $2.5 billion. Do you think the MVP Group will invest 51% (Php 61.2 Billion) of that equity in cash as power generation investors are supposed to? They will not put that valuable power supply contract on the table for free. If they do, their vaunted deal-making shrewdness will not be legendary. Mostly like the MVP Group will only invest in the range of 26% out of the 51% it would control in the project companies. That’s a P31 Billion benefit or economic rent right off the bat.

So why does it matter to Meralco consumers?

Because rent-seeking and free equity or undue benefit will result to higher rates to the consumers. That $10 billion project will officially become $10.6375 Billion or it was a $9.3 Billion project that became $10 billion? That is equivalent to 6.375% of the project cost.

And that is only the cost to consumers of the rent-seeking privilege. Add to that the profits and overcharge due to the sweetheart relationship between Meralco and Meralco PowerGen, the total cost to the consumers is mind-boggling.

In fact even if the MVP Group does not get free equity, the fact that they choose their own power generation company to the exclusion of other non-affiliated projects to contract with Meralco and they negotiate sweetheart terms and prices is still rent-seeking according to the economists definition. Wikipedia also notes that rent-seeking is another form of corruption.

Rent-seeking is an abuse of market power and harmful to consumers.

Matuwid na Singil Sa Kuryente Consumer Alliance Inc.
Matuwid.org

David Celestra Tan is a CPA and utility economist. He was among the pioneers in the private power generation sector and a founder and former President of the Philippine Independent Power Producers Assn. (PIPPA). Towards retirement he is seeking to contribute his knowledge in power strategy and policy towards the national goal of competitive and consumer friendly power sector. His way of giving back to the community. Other than as a consumer he will not benefit financially, directly or indirectly, from any business with Meralco. Para sa Bayan lang po ito.

span style=”font-size: medium;”>Authors notes:

Rentseeking is the use of the resources of a company, an organization or an individual to obtain economic gain from others without reciprocating any benefits to society through wealth creation. (Investopedia)

Wikipedia says Rent-seeking is an attempt to obtain economic rent (i.e., the portion of income paid to a factor of production in excess of what is needed to keep it employed in its current use) by manipulating the social or political environment in which economic activities occur, rather than by creating new wealth. Rent-seeking implies extraction of uncompensated value from others without making any contribution to productivity. The classic example of rent-seeking, according to Robert Shiller, is that of a feudal lord who installs a chain across a river that flows through his land and then hires a collector to charge passing boats a fee (or rent of the section of the river for a few minutes) to lower the chain. There is nothing productive about the chain or the collector. The lord has made no improvements to the river and is helping nobody in any way, directly or indirectly, except himself. All he is doing is finding a way to make money from something that used to be free.[5]

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Why Not Hold CSP Biddings Now to Assure Future Power Supply?

David Celestra Tan, MSK
8 November 2016

They are doing it again to electric consumers! There is a concerted effort to make the public believe that we are running short of power supply and that the current projects, specially by MVP Group and Meralco, need to be approved and permitted through the express lane. Like Scarecrows and pumpkin heads! Of course, power shortage can become a self-fulfilling prophecy.

It might be recalled that Meralco signed seven (7) midnight power supply contracts purportedly with various power generators that turned out to be all majority owned by its own subsidiary Meralco PowerGen. Not that they are bashful about announcing it. Most of the 3,551mw were signed only on April 26, 2016, five (5) months and 20 days AFTER the original CSP deadline of November 6, 2015 and filed with the ERC on April 29, 2016, just beating the new extension given by the ERC of April 30, 2016. The contracts with five different companies have similar language and pricing formula and obviously came from one template. Signed on the same day!

Meralco is claiming urgency and scaring the people about power shortages and brownouts. The truth is of the 3,551mw only 70mw (2%) is coming on line this year 2016. Meralco’s previous 440mw San Buenaventura coal project in Mauban is scheduled for 2018. That’s two years from now. And Most of about 3,500mw will come on line in 5 to 7 years yet. It takes only 3 to 4 years to build those coal power plants. We still have one year to go through an honest to goodness competitive bidding.

But no one seems to be interested in truly subjecting the power generation sector to open bidding, an essential to bringing least cost power to consumers and opening the sector to more independent investors, foreign and local. The government itself is apathetic to it. ERC moved its CSP implementation by five (5) months! If not stopped those 3,551 of midnight contracts will tie up Meralco’s captive consumers and cornering 90% of the energy needs of Meralco for the next 25 years. No real benefit of competitive generation rates.

Subjecting this to bidding will:

1) settle once and for all the least cost difference between self-negotiated and truly competitive bidding

2) self-dealing is minimized and harmful monopolization, cartelization, abuse of market power and anti-competitive behavior are controlled.

3) the generation sector will be opened to truly independent power generators and investors and thus better assuring the continued development of the power supply and the introduction of competitive approaches and emerging technologies and energy to the sector.

The true cost of the negotiated sister company power supply go beyond the initial price that is published. It is also in the fine print of the terms and the administration of contracts whose effective cost are also passed on to the consumers.

All these things will promote the public interest and would certainly be good for the country’s business competitiveness.

We have yet to hear from the new DOE on whether it is committed to bringing true competition to the power generation sector and treat the electric consumers better.

All the contracts are for coal and so there goes any pretentions of the government to even influence the energy mix of the country, much less a true commitment to climate change.

The MVP Group is trying to argue that they are the ones who can assure least cost for consumers. And that they have “aggressively negotiated competitive power deals with power generators” without mentioning that those power companies are their own Meralco PowerGen. Can you imagine Meralco squeezing the best power price from itself? Who are we kidding?

A Challenge to Meralco and the DOE and ERC

To settle all arguments on competitive power and how that can be achieved better, by “aggressive negotiation” with sister companies or by truly open bidding, why don’t we hold even one pilot biddings now?

A decent sized of 300mw coal to be located in Luzon, administered by an independent third party, where only the truly independent power generators can participate. (Meralco’s chosen partners in the seven (7) midnight contracts have been compromised and should not be allowed to participate in this pilot project intended to show truly independent bidders can result to better rates) or the bidding can just assure there would be a minimum of three independent bidders in the mix).

There are still independent bidders that may not be hopelessly compromised. Ayala Group, TeamEnergy of Japan, AES of USA, Kepco of Korea, Filinvest of the Gotianuns, GN Power, PeakPower of the Ng Family, First Gen of the Lopez Group, Energy World of Australia, TransAsia. Other Japanese, Korean, Singaporean, French and Canadian companies looking to participate in power generation.

True Competitive Bidding not Swiss or Price Challenge

By bidding, we don’t mean the swiss or price challenge type that the MVP Group wants because that type is a sham competitive bidding. It is rigged in favor of the supposed “unsolicited proponent” specially if it is the subsidiary of Meralco and MVP Group. It doesn’t even comply with the true wordings of the BOT law that allowed such unsolicited proposals. We are just plain games with the public.

The bidding process could take a maximum 12 months. Way enough time to build plants within 4 to 5 years.

How about it sirs?

MATUWID NA SINGIL SA KURYENTE CONSUMER ALLIANCE INC.
Matuwid.org – See more at: http://matuwid.org/why-not-hold-csp-biddings-now-to-assure-future-power-supply/#sthash.AYJW53TT.dpuf

The Ugly Picture of Meralco’s Violations of Consumer Rights

David Celestra Tan, MSK
31 October 2016

Your organization Matuwid na Singil sa Kuryente Consumer Alliance Inc had been formed to fight for consumer rights in the Meralco area, more particularly abusive power rates.

Our first action was in 2011 when MSK opposed the construction of an P11.9 billion submarine cable system to connect the island of Mindoro to Luzon whose cost will be passed on to the Luzon consumers. It was close to quiet approval by the ERC until MSK asked simple questions and the applicants cannot justify it including the claim that Luzon will benefit from a 300mw coal plant in Mindoro where there are no coal mines. The expensive overhead transmission line will go all the way to San Jose Mindoro Occidental. It turned out the project was actually to enable a coal company to build a power plant on his island and only needed a shorter submarine cable line to nearby San Jose Mindoro go tap the main power market of Luzon. Very imaginative at the expense of the consumers. That project was shelved I think saving the the national electric consumers P0.04 per kwh in unnecessary transmission charges. That supposed 300mw from Mindoro is now being sourced from Luzon based generators without the need for building an P11.9 billion transmission line.

It has been a lonely fight for consumers. As a consumer advocacy group, one thing that has been surprising to MSK is the seeming apathetic attitude of government officials, the media, and the consumers themselves to consumer rights and its abuse and violations.

In our previous posting of the guest article of former Secretary Cielito F. Habito on consumer rights he asked questions that are very relevant to the Meralco consumers.

How can companies providing various goods and services that are part of our daily lives keep getting away with practices amounting to abuse and exploitation of their consumers—the very people that keep their firms alive? Why is it so hard for exploited consumers to band together, organize and collectively assert their rights to get what is due them, or at least what is promised them by the companies they patronize?” 

Meralco consumers are probably taking a double take when consumer abuses by the distribution utility monopoly is raised. For Meralco consumers are inundated by ads and testimonials from businesses that have benefited from Meralco’s various energy saving programs. Let grant that those good deeds are true. That is not where the consumer rights are being violated. It is the rights of its captive consumers who are 40% of their customer base but provide them with 60% of their profits. They are treating them like captives.

Let us start with defining the rights of Meralco’s consumers or more accurately Meralco’s obligations to its customers.

Violation of Consumer Rights under EPIRA Law or RA 9136.

1. Abuse in Generation Rates

Meralco is required by the Epira Law of 2001 under its Section 23 “to supply electricity in the least cost manner to its captive consumers”. That is not only on generation but also on their distribution charges.

The MVP Groups continued refusal to subject to true competition the power generation supply and charges that are passed on to the consumers is a blatant denial of the fundamental Consumer Right to “least cost” power. Worse to insist on negotiating them with their own sister generators. MSK submits that the only way to assure that it is least cost is to truly market test them in an honest competitive bidding for those contracts. Not “least cost” as self-servingly defined by the MVP Group and not as it incredulously claim to have “aggressively negotiated” with their majority owned generating companies under Meralco PowerGen.

Meralco is ramming through the ERC and Congressional JCPC the seven (7) midnight contracts totaling 3,551mw that would deny consumers competitive power for 20 years. We estimate the sweetheart overprice would amount to at least P0.50 per kwh or P12.5 billion a year.

This is more arbitrary exaction than government taxes which at least have foundations in law, go through rigorous legislative process and scrutiny, and the money, at least for the most part, goes to the people in running government and public services. Columnist and author Rigoberto Tiglao asserts with seeming irrefutable trail, that the Profits that Meralco proudly announces ironically go out of the country to Indonesian owners. For MSK, overcharges and violations are illegal and should not be allowed whether by Filipino or foreign owners.

2. Abuse in Distribution Rates

The Epira Law also requires Meralco as the distribution utility to charge fair and reasonable rates. Its use of PBR is exploitive. Its systems loss charging system is non-transparent and deceptive. They present a systems loss charge of 6% on the bill but if you compute in the back, the system charge is actually 10%, higher than the 8.5% supposed limit.

Section 43(f) of the Epira Law required distribution utilities like Meralco to adopt rate setting methodologies that are “in the public interest”. Section 25 says its returns must be based on investments “incurred”. Under PBR it is charging for projected investments not yet incurred. PBR as currently used by ERC and Meralco is contrary to law.

The recent discovery by MSK that Meralco is allowed by the ERC to keep excess profits coming from growth in energy sales over the “projected” sales shows the length and depth of rate abuse (and collusion?). Yes, 7% actual growth as announced by Meralco itself vs projections of 3.7%. Isn’t that obviously an 89% excess? In fact Meralco just announced a 9% growth in energy sales.

MSK actually had filed a petition to the ERC to order Meralco to account for the excess for the period 2011 to 2015 and refund the estimated P2.9 to P5 Billion in overrecovery. (This anomalous methodology was inherited by the new ERC Commissioners. The question is will they do something about it now to correct the sham and abuse?)

Consumer Smugness

Ironically, Meralco consumers do not show concern now, and consequently government officials don’t see a need to act, because the generation rates are temporarily low due to the lucky drop in the world old prices. And helped by a carefully crafted Meralco PR campaign to condition peoples’ minds. The increase in the ability to pay of Filipinos from the BPO and Overseas Employment and the prosperity from the rise of the property values of the lucky landed gentry, make them unconcerned about their electric bill. One day though we will all wake up when the devil of all these self-negotiated contracts will come and haunt all of us consumers and all we can do is cry. The MVP Group then will take cover and claim their constitutional right to “sanctity of contracts”.

This is like the drug problem that had been neglected for so long until it became a national epidemic.

MSK is trying to raise the alarm bells now.

Part of the eerie apathy comes from the cynicism of government officials and consumers themselves on the genuinness of the consumer groups’ agenda. For it is true that many consumer advocacy groups have come and gone, some clearly formed to only project a support for Meralco’s on going agenda and to disappear afterwards. These pseudo consumer groups are normally led by lawyers. One went as far as filing a case in the Supreme Court against Renewable Energy.

3. Government missing in action

There are any number of government agencies who can step up to defend the consumers from abuses specially in electricity. Yet most of them are quiet. The Department of Energy and the Energy Regulatory Commission whose jobs it is to provide policy and enforce regulations to protect the public interest. The JCPC of Congress whose job it is to oversee the implementation of the Epira to assure they are complying with the law, one of which is the protection of public interest. There is the Bureau of Consumer Affairs at the Department of Trade whose job it is to protect consumers under the Consumer Act. The Energy Committees of the lower and upper chamber of the legislature, their Chairmen and almost one hundred committee members, who at least should look into these abuses. The Executive Department whose job it is to look after the general welfare of consumers as taxpayers and voters, and to promote national economic competitiveness. One hopeful sign is the Philippine Competition Commission whose job it is to enforce the rules of the Competition Act and prevent abuses by businesses.

Open violation of consumer rights by Meralco has been ugly. Your organization MSK will continue its fight for regulatory reform. Maybe some of you can give a hand and let your own legislators and regulators know your concerns. Write President Digong. It is only through our collective voices that we consumers can be heard!

Evil triumphs only if good men do nothing. Otherwise it becomes ugly for us consumers.

Matuwid na Singil sa Kuryente Consumer Alliance Inc.
Matuwid.org