Solicitor General Jose Calida on Sunday cautioned the National Telecommunications Commission against the issuance of provisional authorities to allow media giant ABS-CBN Corporation and its affiliate, ABS-CBN Convergence, Inc., to continue with its operation despite the expiration of their franchises.
Calida’s move came even as a group of 1,000 micro, small and medium cable television operators nationwide is urging the NTC not to step into the issue of the May 4 franchise expiration of media giant ABS-CBN Broadcasting Corp.
Calida had opposed a proposal for the NTC to grant provisional authorities to the broadcasting company, saying only Congress has the exclusive power to grant franchises to public utilities, such as broadcasting companies, in order to operate in the country under the 1987 Constitution.
“Although this legislative power may be delegated to administrative agencies through a law, at present, there is no such law giving the NTC or any other agency the power to grant franchises to broadcasting entities,” Calida pointed out.
ABS-CBN Convergence’s franchise expired last March 17, 2020, while ABS-CBN Corporation’s franchise will end on May 4, 2020.
On February 26, House Speaker Alan Peter Cayetano and Palawan Rep. Franz Alvarez, chair of the House Committee on Legislative Franchises, sent a letter to the NTC urging it to grant a provisional authority to ABS-CBN, effective on May 4, 2020, until such time as Congress has made a decision on its franchise application.
During the hearing of the House Committee on Legislative Franchises last March 10, NTC Commissioner Gamaliel Cordoba said the commission will issue a provisional authority to ABS-CBN allowing it to operate pending its application.
Cordoba said this decision was based on an opinion of the Department of Justice allowing ABS-CBN to operate based on equity considerations.
Citing a 2014 Supreme Court decision, however, Calida outlined the steps when the NTC can issue a PA to a broadcasting company.
Based on the ruling, an entity must first secure a franchise from Congress and after it is granted one, it should apply for a Certificate of Public Convenience from the NTC before it can operate.
Pending approval of its CPC, however, it can apply for a PA so it can start operating during the interim.
“Hence, a PA should only be issued once a congressional franchise has been granted and an application for CPC is pending before the NTC for approval,” Calida said.
“The NTC cannot issue a PA when the broadcast company has no valid and existing legislative franchise,” he added.
He argued that no less than the Constitution requires a prior franchise from Congress.
“Hence, when there is no renewal, the franchise expires by operation of law. The franchise ceases to exist and the entity can no longer continue its operations as a public utility,” Calida said.
In the absence of a congressional franchise, Calida said the NTC can only issue a cease and desist order and/or a recall order against a broadcasting entity pursuant to applicable laws, Supreme Court decisions, and its own rules,
Calida said the NTC cannot use the DOJ opinion as legal basis for the planned issuance as the 2003 SC ruling should take precedence over the DOJ legal opinion.
“As early as 2003, the Supreme Court held invalid a 1991 DOJ opinion stating that the NTC may issue a permit or authorization without a legislative franchise. The NTC is thus not bound by the DOJ opinion,” Calida added.
Meanwhile, the Federation of International TV and Telecommunications Association of the Philippines, represented by national chairperson Estrellita Juliano-Tamano, has sent a five-page letter to NTC’s Cordoba and Deputy Commissioners Edgardo Cabarios and Delila Deles on April 29, presenting its opposition to the renewal of the ABS-CBN franchise.
“I write for and in behalf of FICTAP in the matter of its opposition to the continuing operations of ABS-CBN Corp. starting May 4, 2020 in view of the expiration of its congressional franchise (Republic Act No. 7966).”
“It must be stressed that to this date, Congress has not passed a law renewing the ABS-CBN’s congressional franchise,” Tamano said in her letter.
Echoing Calida’s argument., Tamano said DOJ Opinion No. 98 was “merely persuasive and not necessarily controlling.”
“To fully understand the scope and dimensions of the regulatory realm of the NTC, it is essential to review the legal background of the regulation process. As operative fact, any person or enterprise which wishes to operate a broadcast radio or television station in the Philippines has to secure a legislative franchise in the form of a law passed by Congress, and thereafter, a license to operate from the NTC,” she said.
In a March 16 memorandum, the NTC had said that all ongoing permits to operate and maintain broadcast and pay-TV facilities that would expire during the enhanced community quarantine would be automatically renewed.
Such would be valid for 60 days from the end of the quarantine period, after which all concerned stations, such as ABS-CBN, would be given two months to file a renewal of permit or license without penalties.