SOLICITOR General Jose Calida on Sunday cautioned the National Telecommunications Commission against issuing provisional authorities to broadcast giant ABS-CBN Corporation and its affiliate, ABS-CBN Convergence Inc., allowing them to continue to operate despite the expiration of their franchises.
The franchise of ABS-CBN expires today while that of ABS-CBN Convergence expired last March 17.
Calida is seeking the revocation of the franchises of ABS-CBN and ABS-CBN Convergence. In a quo warranto petition he filed with the Supreme Court last February, he alleged the broadcast network violated franchise provisions.
In a statement on Sunday, Calida said only Congress has the exclusive power to grant franchises to public utilities, such as broadcasting companies.
“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 said.
Citing a 2014 Supreme Court decision, Calida outlined the steps when the NTC can issue a provisional authority to a broadcasting company. He said based on the SC 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 or CPC from the NTC before it can operate.
He explained that pending approval of its CPC, however, it can apply for a provisional authority so it can start operating during the interim.
“Hence, a provisional authority should only be issued once a congressional franchise has been granted and an application for CPC is pending before the NTC for approval. The NTC cannot issue a provisional authority when the broadcast company has no valid and
existing legislative franchise.”
He added that no less than the Constitution requires a prior franchise from Congress and that when there is no renewal, it follows that 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,” he said.
The solicitor general also argued that the NTC cannot use an opinion issued by Justice Secretary Menardo Guevarra that the NTC can issue a provisional authority to ABS-CBN. He said the SC in 2003 rendered a ruling invalidating a DOJ opinion stating that it may issue a provisional authority or permit. He added that the 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 said.
He further said the NTC cannot rely on the Feb. 26, 2020 letter of Speaker Alan Peter Cayetano and Palawan Rep. Franz Alvarez, chair of the House committee on legislative franchises or on Senate Resolution No. 344, which both urge the NTC to issue provisional
authorities to ABS-CBN and its affiliate.
Calida said the letter and the Senate resolution merely express the sentiment of the House and the Senate and did not grant any power to the NTC to contravene laws by issuing a provisional authority.
“These issuances cannot amend the current law requiring a congressional franchise for the operation of broadcasting networks. Not being separate laws themselves, they cannot amend or repeal prior laws,” he said.
He said the NTC commissioners risk subjecting themselves to prosecution under the Anti-Graft and Corrupt Practices Act if they issue provisional authorities to ABS-CBN and its affiliate.
Cayetano last week reiterated the House will tackle bills seeking to grant franchises to ABS-CBN and its affiliate.
Congress resumes session today, May 4, but the COVID-19 pandemic and community quarantines have disrupted work and other regular activities. The two chambers are in the process of laying the groundwork for the holding of sessions without all the lawmakers being physically present, because of quarantine rules like physical distancing. The franchise had been scheduled for discussion today or Tuesday.
The NTC, in a memo last March, said live permits to operate and maintain broadcast and pay TV facilities that will expire during the community quarantine period will be automatically renewed, with the licenses will be valid for 60 days.
